10-3248 United States v. Figueroa



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND**  **THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A** 
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 13 th** **day of March, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges**

. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **UNITED STATES OF AMERICA,** 13 14 Appellee **,** 15 16 **-v.- 10-3248** 17 18 **RAKEEM FIGUEROA, AKA Rawly,** 19 20 Defendant-Appellant **,** 21 22 **RASHEEN JONES, AKA Easy, JAMEL JORDAN,** 23 **AKA Jigga,** 24 25 Defendants. 26 27

1- - - - - - - - - - - - - - - - - - - -X 1 2 **FOR APPELLANT:** Katherine Alfieri, 3 New York, NY 4 5 6 **FOR APPELLEE:** Amy Busa, Celia A. Cohen, 7 Assistant United States 8 Attorneys, for Loretta E. Lynch, 9 United States Attorney, 10 Eastern District of New York, 11 Brooklyn, NY 12 13 Appeal from a judgment of the United States District 14 Court for the Eastern District of New York (Ross, J. ). 15 16 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 17 **AND DECREED**that the district court’s judgment is **AFFIRMED**

. 18 19 Rakeem Figueroa appeals from a 48-month sentence of 20 imprisonment entered in the United States District Court for 21 the Eastern District of New York following his conviction of 22 multiple counts of distribution of cocaine base, in 23 violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). We 24 assume the parties’ familiarity with the underlying facts, 25 the procedural history, and the issues presented for review. 26 27 **[1]** Figueroa argues that the sentence was procedurally 28 unreasonable because the district court miscalculated the 29 amount of drugs attributable to him. The quantity of drugs 30 attributable to a defendant is a question of fact which we 31 review for clear error. See United States v. Richards , 302 32 F.3d 58, 70 (2d Cir. 2002). “[I]f the evidence--direct or 33 circumstantial--supports a district court’s preponderance 34 determination as to drug quantity, we must sustain that 35 finding.” United States v. Jones , 531 F.3d 163, 175 (2d 36 Cir. 2008). “[I]n reviewing a legal challenge to a quantity 37 finding we are mindful of the Guidelines’ express 38 instruction that where there has been no seizure of 39 narcotics, or where the quantity seized does not reflect the 40 true scale of the offense, a sentencing judge should 41 approximate the relevant drug quantity.” Id. (internal 42 quotation marks omitted). In making that approximation, 43 “the court has broad discretion to consider all relevant 44 information.” United States v. Blount , 291 F.3d 201, 215 45

2(2d Cir. 2002). 1 2 The district court’s finding that Figueroa was 3 responsible for more than 50 grams of crack cocaine was not 4 clearly erroneous

. Through undercover drug buys, NYPD 5 officers purchased from (or observed in the possession of) 6 Figueroa and his co-conspirators only marginally less than 7 50 grams of crack. But in addition, Figueroa admitted at 8 trial that he sold to customers other than the undercover 9 officers, that he frequently purchased approximately 3.5 10 grams of crack at a time, and that he aimed to sell a 11 significant amount of that per day. This was ample evidence 12 to support the district court’s finding. 13 14 **[2]** Figueroa also challenges his sentence as substantively 15 unreasonable. We will “set aside a district court’s 16 substantive determination only in exceptional cases where 17 the trial court’s decision cannot be located within the 18 range of permissible decisions.” United States v. Cavera
, 19 550 F.3d 180, 189 (2d Cir. 2008) (in banc ) (internal 20 quotation marks omitted). Figueroa provides no reason why 21 his substantially below-Guidelines sentence was excessive. 22 See United States v. Fernandez , 443 F.3d 19, 27 (2d Cir. 23 2006) (“[I]n the overwhelming majority of cases, a 24 Guidelines sentence will fall comfortably within the broad 25 range of sentences that would be reasonable in the 26 particular circumstances.”). 27 28 We have considered Figueroa’s remaining arguments and 29 find them to be without merit. For the foregoing reasons, 30 the judgment of the district court is hereby **AFFIRMED**

. 31 32 33 34 FOR THE COURT: 35 CATHERINE O’HAGAN WOLFE, CLERK 36 37 38 39 40 41

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