13-4833

United States v. DiRose

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 17th 4 day of October, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 13-4833

16

17 RICARDO A. DIROSE, aka Richard Thomas,

18 aka Rich Decchio, aka Ricardo Disrof, 

19 Defendant-Appellant.

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21

22 FOR APPELLANT: Gene V. Primono (with Molly

23 Corbett), Federal Public

24 Defender’s Office, Albany, New

25 York.

26

27 FOR APPELLEE: Robert A. Sharpe (with Rajit S.

28 Dosanjh), for Richard S.

1
1 Hartunian, U.S. Attorney for the

2 Northern District of New York,

3 Albany, New York.

4

5 Appeal from a judgment of the United States District

6 Court for the Northern District of New York (Scullin, J.).

7

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9 AND DECREED that the judgment of the district court be

10 AFFIRMED. 

11

12 Ricardo DiRose appeals from the judgment of the United

13 States District Court for the Northern District of New York

14 (Scullin, J.), sentencing DiRose to 24 months imprisonment

15 for two violations of conditions of supervised release. We

16 assume the parties’ familiarity with the underlying facts,

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

18

19 In 1998, the district court sentenced DiRose to

20 eighteen months imprisonment and three years supervised

21 release for conspiracy to commit tax fraud. Because of

22 unrelated, consecutive prison sentences, DiRose did not

23 begin his term of supervised release until August 5, 2005. 

24 Within four days, he absconded. He never showed up to his

25 assigned residence or to an August 9, 2005, appointment with

26 his probation officer. DiRose was neither seen nor heard

27 from until more than eight years later, in November 2013,

28 when he was arrested in Florida. After returning in custody

29 to the Northern District of New York, DiRose admitted to two

30 violations of conditions of supervised release: failure to

31 report to his probation officer, and failure to notify his

32 probation officer of a change in residence. The district

33 court found that DiRose’s conduct represented Grade C

34 violations, that he had a criminal history category of VI,

35 and that the U.S. Sentencing Guidelines (“USSG”) advisory

36 range was eight to fourteen months imprisonment. The

37 district court imposed a sentence of 24 months imprisonment.

38

39 We review sentences for reasonableness, United States

40 v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),

41 which “amounts to review for abuse of discretion,” United

42 States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en

43 banc). This standard “applies both to ‘the sentence itself’

44 and to ‘the procedures employed in arriving at the

45 sentence.’” United States v. Verkhoglyad, 516 F.3d 122, 127

46 (2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d

2
1 19, 26 (2d Cir. 2006), abrogated on other grounds by Rita v.

2 United States, 551 U.S. 338 (2007)).

3

4 DiRose raised no objection to the procedure surrounding

5 and explanation of his sentence in the district court. He

6 now raises three such challenges, and each is subject to the

7 plain error standard. See United States v. Wagner-Dano, 679

8 F.3d 83, 88, (2d Cir. 2012). 

9

10 DiRose first challenges his sentence on the ground that

11 the district court failed to explain how his medical

12 condition was taken into account. Procedural reasonableness

13 requires a district court to consider “the need for the

14 sentence imposed . . . to provide the defendant with needed

15 . . . medical care.” 18 U.S.C. § 3553(a)(2)(D); see id.

16 § 3583(e). We presume that a sentencing court did consider

17 this factor, like all statutory factors, unless the record

18 suggests otherwise. Fernandez, 443 F.3d at 30. In this

19 case, DiRose’s counsel identified a variety of health issues

20 to the district court. The government responded that the

21 medical condition “doesn’t prevent him from continuing to

22 commit crimes and not leading a law abiding life.” This

23 discussion at DiRose’s sentencing reinforces the presumption

24 that the district court took all of the required factors

25 into account.

26

27 DiRose further attacks the procedural reasonableness of

28 the sentence by arguing that the district court improperly

29 based an above-Guidelines sentence upon a reason already

30 incorporated into the Guidelines’ advisory range:

31 specifically, “breach of trust” appears both in the policy

32 statement of the Sentencing Guidelines concerning violations

33 of supervised release, see USSG ch. 7, pt. A, ¶ 3(b), and in

34 the district court’s explanation for the above-Guidelines

35 sentence. This is not error. The Guidelines’ policy

36 statement presents “the extent of the breach of trust” as a

37 critical factor in determining the appropriate sentence for

38 a violation of supervised release. Id. When the district

39 court used the extent of DiRose’s breach of trust as a

40 determinant of his above-Guidelines sentence, it gave effect

41 to that policy statement.

42

43 Finally, DiRose contends that his sentence is

44 procedurally unreasonable because the district court

45 inappropriately considered the crimes that DiRose committed

46 while a fugitive. The district court made clear at

47 sentencing that it considered these crimes only as evidence

3
1 of the extent of DiRose’s breach of trust. This use of

2 DiRose’s conduct while a fugitive was wholly within the

3 district court’s discretion.

4

5 DiRose characterizes some of these arguments as bearing

6 upon substantive reasonableness. All the arguments are in

7 essence procedural.

8

9 DiRose has not identified any error--and certainly no

10 plain error--in his sentencing. For the foregoing reasons,

11 and finding no merit in DiRose’s other arguments, we hereby

12 AFFIRM the judgment of the district court.

13

14 FOR THE COURT:

15 CATHERINE O’HAGAN WOLFE, CLERK

16

17

4