United States v. Rojas

577 F. App'x 33
CourtCourt of Appeals for the Second Circuit
DecidedAugust 27, 2014
DocketNo. 13-2462-cr
StatusPublished

This text of 577 F. App'x 33 (United States v. Rojas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rojas, 577 F. App'x 33 (2d Cir. 2014).

Opinion

SUMMARY ORDER

Defendant Alexi Rojas stands convicted of violating a condition of supervised release prohibiting use of controlled substances, which was imposed as a result of his earlier conviction of conspiracy to distribute and possess with intent to distribute at least 500 grams of cocaine and at least 100 grams of heroin. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846. Rojas both challenges his violation conviction and contends that his 24-month above-Guidelines prison sentence was procedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Conviction Challenge

A district court may revoke supervised release and require the defendant to serve a prison term if the court “ ‘finds by a preponderance of the evidence that the defendant violated a condition of supervised release.’ ” United States v. Glenn, 744 F.3d 845, 847 (2d Cir.2014) (quoting 18 U.S.C. § 3583(e)(3)). “A district court’s finding that a defendant has violated conditions of supervised release is reviewed for abuse of discretion, and its factual findings are reviewed for clear error.” Id. (internal citations omitted).

Rojas contends that the district court erred in finding him to have violated his supervision in the absence of evidence of the laboratory procedures used to deter[36]*36mine that the sweat patch Rojas was wearing tested positive for cocaine. We disagree. The Federal Rules of Evidence do not apply at supervised release revocation hearings; rather, a district court’s preponderance findings need be based only on “ ‘verified facts’ and ‘accurate knowledge.’ ” United States v. Bari, 599 F.3d 176, 179 (2d Cir.2010) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)); see Fed.R.Evid. 1101(d)(3). That requirement was satisfied here where the district court found that Rojas used cocaine after (1) examining the laboratory report documenting the positive test and (2) crediting testimony from Rojas’s probation officer, the technician who applied and removed the sweat patch, and an expert familiar with the laboratory’s procedures, who opined that they yield highly accurate results. Moreover, the district court found Rojas’s testimony that the sweat patch may have been contaminated by environmental conditions not credible in light of the large amount of cocaine detected in the sweat patch. “We accord strong deference to a district court’s credibility determinations, particularly where that couiT based its findings on such determinations.” United States v. Carlton, 442 F.3d 802, 811 (2d Cir.2006). In sum, we identify no error in the district court’s determination that Rojas had 21 violated his supervised release by using cocaine.

2. Sentence Challenge

a. Procedural Reasonableness

“The standard of review on the appeal of a sentence for violation of supervised release is ... the same standard as for sentencing generally: whether the sentence imposed is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir.2005). Rojas argues that his sentence is proeedurally unreasonable because the district court (1) gave insufficient weight to the recommended sentencing range in the applicable Guidelines policy statements and did not sufficiently explain its reasons for varying above the range; (2) did not address the need to avoid unwarranted disparities among similarly situated defendants; (3) did not address the Guidelines Application Note requiring consideration of substance abuse programs for defendants who fail drug tests; (4) accorded too much weight to Rojas’s underlying offense conduct and his underlying lenient sentence; (5) accorded too much weight to the breach of trust already accounted for in the Guidelines policy statements; (6) failed adequately to explain how the sentence imposed was “sufficient, but not greater than necessary” as required by 18 U.S.C. § 3553(a); and (7) incorrectly based Rojas’s sentence on an erroneous and disputed view of his underlying offense conduct. We review the procedural reasonableness of a sentence “under a deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (internal quotation marks omitted). We identify no abuse here.

Rojas’s arguments challenging the weight afforded certain sentencing factors are defeated by precedent. See United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir.2008) (“[T]he weight to be afforded any § 3553(a) factor ‘is a matter firmly committed to the discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately imposed is reasonable.’ ” (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d Cir.2006))). First, the district court was required only to “consider” the policy statements’ recommended three-to-nine month prison range, which it plainly did, rather than to accord it any particular weight. United States v. Pelensky, 129 F.3d 63, 69 (2d Cir.1997); see 18 U.S.C. § 3553(a)(4)(B). Second, the [37]*37district court adequately explained its reasons for varying above the range when it referenced the occurrence of Rojas’s violation shortly after he was placed on supervised release, his pattern of missed drug tests, the breach of trust evident from a violation following a significant downward variance in the original sentence, and the need for specific deterrence. In these circumstances, no further explanation was required to ensure procedural reasonableness. See United States v. Verkhoglyad, 516 F.3d at 132-33 (“ ‘[A] court’s statement of its reasons for going beyond nonbinding policy statements in imposing a sentence after revoking a defendant’s [probationary] term need not be as specific as has been required when courts departed from guidelines that were, before Booker, considered to be mandatory’ ” (emphasis and alteration in original) (quoting United States v. Lewis, 424 F.3d 239, 245 (2d Cir.2005))).

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Related

United States v. Bari
599 F.3d 176 (Second Circuit, 2010)
United States v. Rigas
583 F.3d 108 (Second Circuit, 2009)
United States v. Verkhoglyad
516 F.3d 122 (Second Circuit, 2008)
United States v. Fernandez
443 F.3d 19 (Second Circuit, 2006)
Morrissey v. Brewer
408 U.S. 471 (Supreme Court, 1972)
United States v. George A. Pelensky
129 F.3d 63 (Second Circuit, 1997)
United States v. Daniel Lee Fleming
397 F.3d 95 (Second Circuit, 2005)
United States v. Darwin McNeil Germaine Robinson
415 F.3d 273 (Second Circuit, 2005)
United States v. Myrisa v. Lewis
424 F.3d 239 (Second Circuit, 2005)
United States v. Rasheim Carlton
442 F.3d 802 (Second Circuit, 2006)
United States v. Felix Sindima
488 F.3d 81 (Second Circuit, 2007)
United States v. Broxmeyer
699 F.3d 265 (Second Circuit, 2012)
United States v. Cavera
550 F.3d 180 (Second Circuit, 2008)
United States v. Villafuerte
502 F.3d 204 (Second Circuit, 2007)
United States v. Glenn
744 F.3d 845 (Second Circuit, 2014)

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Bluebook (online)
577 F. App'x 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rojas-ca2-2014.