United States v. Rojas

361 F. App'x 233

• Court: Court of Appeals for the Second Circuit
• Decided: January 20, 2010
• Docket: 08-2380-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Junior Rojas pled guilty to one count of conspiring to deal drugs (cocaine) and one count of money laundering. 21 U.S.C. § 846; 18 U.S.C. § 1956(h). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

The guideline range for Rojas’s sentence was 168 to 210 months; Rojas asserts no procedural error. He argues only that his sentence of 108 months’ incarceration (plus five years of supervised release) is substantively unreasonable.

Substantive reasonableness is reviewed under “a deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (in banc).

The claim of substantive error is that the court failed to consider whether the powder cocaine sentence guidelines are improperly high and make a ruling on that point. As Rojas did not argue this below, he concedes that this review is conducted under a plain error standard.

Even if his claim were properly preserved, there is no basis in law for requiring district courts to explicitly consider whether to reject the applicable guideline range as a policy matter before sentencing a defendant. The Supreme Court has allowed district courts to sentence below a guideline range due to a policy disagreement; but it has never required them to first affirmatively state whether or not they disagree with sentencing guidelines as a policy matter. See Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Further, simply because a district court does not mention a relevant consideration does not mean it failed to give it consideration. See United States v. Fernandez, 443 F.3d 19, 30 (2d Cir.2006).

Finding no merit in the defendant’s arguments, we hereby AFFIRM the judgment of the district court.