13-4833 United States v. DiRose



### 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**
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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 17 th** **day of October, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **CHRISTOPHER F. DRONEY,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 13-4833** 15 16 **RICARDO A. DIROSE, aka Richard Thomas,** 17 **aka Rich Decchio, aka Ricardo Disrof,** 18 **Defendant-Appellant**

**.** 19 - - - - - - - - - - - - - - - - - - - -X 20 21 **FOR APPELLANT:** Gene V. Primono (withMolly 22 Corbett), Federal Public 23 Defender’s Office, Albany, New 24 York. 25 26 **FOR APPELLEE:** Robert A. Sharpe (withRajit S. 27 Dosanjh), for Richard S. 28

1Hartunian, U.S. Attorney for the 1 Northern District of New York, 2 Albany, New York. 3 4 Appeal from a judgment of the United States District 5 Court for the Northern District of New York (Scullin, J. ). 6 7 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 8 **AND DECREED**that the judgment of the district court be 9
**AFFIRMED**

. 10 11 Ricardo DiRose appeals from the judgment of the United 12 States District Court for the Northern District of New York 13 (Scullin, J. ), sentencing DiRose to 24 months imprisonment 14 for two violations of conditions of supervised release

. We 15 assume the parties’ familiarity with the underlying facts, 16 the procedural history, and the issues presented for review. 17 18 In 1998, the district court sentenced DiRose to 19 eighteen months imprisonment and three years supervised 20 release for conspiracy to commit tax fraud. Because of 21 unrelated, consecutive prison sentences, DiRose did not 22 begin his term of supervised release until August 5, 2005. 23 Within four days, he absconded. He never showed up to his 24 assigned residence or to an August 9, 2005, appointment with 25 his probation officer. DiRose was neither seen nor heard 26 from until more than eight years later, in November 2013, 27 when he was arrested in Florida. After returning in custody 28 to the Northern District of New York, DiRose admitted to two 29 violations of conditions of supervised release: failure to 30 report to his probation officer, and failure to notify his 31 probation officer of a change in residence. The district 32 court found that DiRose’s conduct represented Grade C 33 violations, that he had a criminal history category of VI, 34 and that the U.S. Sentencing Guidelines (“USSG”) advisory 35 range was eight to fourteen months imprisonment. The 36 district court imposed a sentence of 24 months imprisonment. 37 38 We review sentences for reasonableness, United States 39 v. Cossey , 632 F.3d 82, 86 (2d Cir. 2011) (per curiam), 40 which “amounts to review for abuse of discretion,” United 41 States v. Cavera , 550 F.3d 180, 187 (2d Cir. 2008) (en 42 banc). This standard “applies both to ‘the sentence itself’ 43 and to ‘the procedures employed in arriving at the 44 sentence.’” United States v. Verkhoglyad , 516 F.3d 122, 127 45 (2d Cir. 2008) (quoting United States v. Fernandez , 443 F.3d 46

219, 26 (2d Cir. 2006), abrogated on other grounds byRita v. 1 United States , 551 U.S. 338 (2007)). 2 3 DiRose raised no objection to the procedure surrounding 4 and explanation of his sentence in the district court. He 5 now raises three such challenges, and each is subject to the 6 plain error standard. SeeUnited States v. Wagner-Dano , 679 7 F.3d 83, 88, (2d Cir. 2012). 8 9 DiRose first challenges his sentence on the ground that 10 the district court failed to explain how his medical 11 condition was taken into account. Procedural reasonableness 12 requires a district court to consider “the need for the 13 sentence imposed . . . to provide the defendant with needed 14 . . . medical care.” 18 U.S.C. § 3553(a)(2)(D); see id. 15 § 3583(e). We presume that a sentencing court did consider 16 this factor, like all statutory factors, unless the record 17 suggests otherwise. Fernandez , 443 F.3d at 30. In this 18 case, DiRose’s counsel identified a variety of health issues 19 to the district court. The government responded that the 20 medical condition “doesn’t prevent him from continuing to 21 commit crimes and not leading a law abiding life.” This 22 discussion at DiRose’s sentencing reinforces the presumption 23 that the district court took all of the required factors 24 into account. 25 26 DiRose further attacks the procedural reasonableness of 27 the sentence by arguing that the district court improperly 28 based an above-Guidelines sentence upon a reason already 29 incorporated into the Guidelines’ advisory range: 30 specifically, “breach of trust” appears both in the policy 31 statement of the Sentencing Guidelines concerning violations 32 of supervised release, seeUSSG ch. 7, pt. A, ¶ 3(b), and in 33 the district court’s explanation for the above-Guidelines 34 sentence. This is not error. The Guidelines’ policy 35 statement presents “the extent of the breach of trust” as a 36 critical factor in determining the appropriate sentence for 37 a violation of supervised release. Id. When the district 38 court used the extent of DiRose’s breach of trust as a 39 determinant of his above-Guidelines sentence, it gave effect 40 to that policy statement. 41 42 Finally, DiRose contends that his sentence is 43 procedurally unreasonable because the district court 44 inappropriately considered the crimes that DiRose committed 45 while a fugitive. The district court made clear at 46 sentencing that it considered these crimes only as evidence 47

3of the extent of DiRose’s breach of trust. This use of 1 DiRose’s conduct while a fugitive was wholly within the 2 district court’s discretion. 3 4 DiRose characterizes some of these arguments as bearing 5 upon substantive reasonableness. All the arguments are in 6 essence procedural. 7 8 DiRose has not identified any error--and certainly no 9 plain error--in his sentencing. For the foregoing reasons, 10 and finding no merit in DiRose’s other arguments, we hereby 11
**AFFIRM** the judgment of the district court. 12 13 FOR THE COURT: 14 CATHERINE O’HAGAN WOLFE, CLERK 15 16 17

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