10-3248

United States v. Figueroa

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 13th 4 day of March, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 UNITED STATES OF AMERICA, 

14

15 Appellee,

16

17 -v.- 10-3248

18

19 RAKEEM FIGUEROA, AKA Rawly,

20

21 Defendant-Appellant,

22

23 RASHEEN JONES, AKA Easy, JAMEL JORDAN,

24 AKA Jigga,

25

26 Defendants.

27

1
1 - - - - - - - - - - - - - - - - - - - -X

2

3 FOR APPELLANT: Katherine Alfieri,

4 New York, NY

5

6

7 FOR APPELLEE: Amy Busa, Celia A. Cohen,

8 Assistant United States

9 Attorneys, for Loretta E. Lynch,

10 United States Attorney, 

11 Eastern District of New York,

12 Brooklyn, NY

13

14 Appeal from a judgment of the United States District

15 Court for the Eastern District of New York (Ross, J.).

16

17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

18 AND DECREED that the district court’s judgment is AFFIRMED.

19

20 Rakeem Figueroa appeals from a 48-month sentence of

21 imprisonment entered in the United States District Court for

22 the Eastern District of New York following his conviction of

23 multiple counts of distribution of cocaine base, in

24 violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). We

25 assume the parties’ familiarity with the underlying facts,

26 the procedural history, and the issues presented for review. 

27

28 [1] Figueroa argues that the sentence was procedurally

29 unreasonable because the district court miscalculated the

30 amount of drugs attributable to him. The quantity of drugs

31 attributable to a defendant is a question of fact which we

32 review for clear error. See United States v. Richards, 302

33 F.3d 58, 70 (2d Cir. 2002). “[I]f the evidence--direct or

34 circumstantial--supports a district court’s preponderance

35 determination as to drug quantity, we must sustain that

36 finding.” United States v. Jones, 531 F.3d 163, 175 (2d

37 Cir. 2008). “[I]n reviewing a legal challenge to a quantity

38 finding we are mindful of the Guidelines’ express

39 instruction that where there has been no seizure of

40 narcotics, or where the quantity seized does not reflect the

41 true scale of the offense, a sentencing judge should

42 approximate the relevant drug quantity.” Id. (internal

43 quotation marks omitted). In making that approximation,

44 “the court has broad discretion to consider all relevant

45 information.” United States v. Blount, 291 F.3d 201, 215

2
1 (2d Cir. 2002).

2

3 The district court’s finding that Figueroa was

4 responsible for more than 50 grams of crack cocaine was not

5 clearly erroneous. Through undercover drug buys, NYPD

6 officers purchased from (or observed in the possession of)

7 Figueroa and his co-conspirators only marginally less than

8 50 grams of crack. But in addition, Figueroa admitted at

9 trial that he sold to customers other than the undercover

10 officers, that he frequently purchased approximately 3.5

11 grams of crack at a time, and that he aimed to sell a

12 significant amount of that per day. This was ample evidence

13 to support the district court’s finding.

14

15 [2] Figueroa also challenges his sentence as substantively 

16 unreasonable. We will “set aside a district court’s

17 substantive determination only in exceptional cases where

18 the trial court’s decision cannot be located within the

19 range of permissible decisions.” United States v. Cavera,

20 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (internal

21 quotation marks omitted). Figueroa provides no reason why

22 his substantially below-Guidelines sentence was excessive. 

23 See United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.

24 2006) (“[I]n the overwhelming majority of cases, a

25 Guidelines sentence will fall comfortably within the broad

26 range of sentences that would be reasonable in the

27 particular circumstances.”). 

28

29 We have considered Figueroa’s remaining arguments and

30 find them to be without merit. For the foregoing reasons,

31 the judgment of the district court is hereby AFFIRMED.

32

33

34

35 FOR THE COURT:

36 CATHERINE O’HAGAN WOLFE, CLERK

37

38

39

40

41

3