The Honorable Richard W. Goldberg, United States Court of *

International Trade, sitting by designation.

09-3003-cr

United States v. Cuevas

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

4 New York, on the 22 day of July, two thousand and ten. nd

5

6 PRESENT: RICHARD C. WESLEY,

7 PETER W. HALL,

8 Circuit Judges,

9 RICHARD W. GOLDBERG,

10 Judge.

*

11 

12

13 UNITED STATES OF AMERICA, 

14

15 Appellee,

16

17 -v.- 09-3003-cr

18

19 ALEJANDRO BORDE and JESENIA HERNANDEZ,

20

21 Defendants,

22

23 JUAN CUEVAS,

24

25 Defendant-Appellant.

26 

27

28
2

1 FOR APPELLANT: DONNA R. NEWMAN, New York, NY.

2

3 FOR APPELLEE: JOCELYN E. STRAUBER, Assistant

4 United States Attorney (Michael

5 S. Bosworth, Assistant United

6 States Attorney, on the brief),

7 for Preet Bharara, United States

8 Attorney for the Southern

9 District of New York, New York,

10 NY. 

11

12 Appeal from the United States District Court for the

13 Southern District of New York (Batts, J.).

14

15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16 AND DECREED that the judgment of the district court is

17 AFFIRMED.

18 Appellant Juan Cuevas appeals from the district court’s

19 June 29, 2009 judgment of conviction entered following his

20 March 30, 2008 guilty plea to one count of conspiring to

21 distribute and possess with intent to distribute five or

22 more kilograms of cocaine, in violation of 21 U.S.C. § 846. 

23 The district court sentenced appellant principally to 151

24 months’ imprisonment. We assume the parties’ familiarity

25 with the underlying facts, the procedural history, and the

26 issues presented for review.

27 In this appeal, appellant argues that his sentence was

28 marred by procedural error because the district court: (1)

29 did not describe on the record the factual findings
3

1 underlying its calculation of the applicable sentencing

2 range from the U.S. Sentencing Guidelines (the

3 “Guidelines”); (2) relied on hearsay and other evidence that

4 was insufficient to sustain the findings upon which the

5 Guidelines calculation was based; and (3) failed to consider

6 all of the sentencing factors set forth at 18 U.S.C. §

7 3553(a). We consider these procedural arguments under a

8 deferential abuse-of-discretion standard; the touchstone of

9 our review is reasonableness. See United States v. Cavera,

10 550 F.3d 180, 189-90 (2d Cir. 2008) (en banc). 

11 Appellant first argues that the district court

12 committed procedural error by failing to make fact findings

13 on the record relating to the three-level role enhancement

14 that it imposed, see U.S.S.G. § 3B1.1(b), as well as the

15 applicable drug quantity under the Guidelines. Because

16 appellant did not raise these objections at the sentencing,

17 we review his contentions for plain error. See United

18 States v. Espinoza, 514 F.3d 209, 211-12 (2d Cir. 2008). 

19 The district court stated at the sentencing that it

20 “accept[ed] and adopt[ed] the factual recitations set forth

21 in the presentence report, including the quantity of drugs

22 in issue.” With respect to appellant’s role, the district
4

1 court rejected the Probation Department’s four-level

2 recommendation and instead imposed a three-level

3 enhancement. The court explained that it “agree[d] with the

4 government that Mr. Cuevas was a supervisor of Ms.

5 Hernandez,” but that “a three-level increase as opposed to a

6 four-level increase would more closely approximate

7 [appellant’s] role in this matter.” The district court

8 committed no error — plain or otherwise — by adopting and

9 relying upon the presentence report (“PSR”) as the basis for

10 these factual findings. See id. at 212. 

11 Appellant next argues that the factual findings in the

12 PSR were insufficient to support the district court’s

13 Guidelines calculation by a preponderance of the evidence. 

14 “The sentencing court’s discretion is largely unlimited

15 either as to the kind of information it may consider, or the

16 source from which it may come,” and the court “is free to

17 consider hearsay evidence . . . in determining [a]

18 sentence.” United States v. Gomez, 580 F.3d 94, 105 (2d

19 Cir. 2009) (internal quotation marks omitted). Having

20 reviewed the PSR, as well as the other documents that were

21 before the district court at appellant’s sentencing, we find

22 that these materials were sufficient to sustain the district
5

1 court’s conclusions regarding the applicable role

2 enhancement and drug quantity. 

3 Consistent with that conclusion, we hold that the

4 district court did not err by failing to conduct a hearing

5 to determine the precise drug quantity that was to be

6 considered under the Guidelines. Although appellant’s

7 counsel objected to the Probation Department’s drug-quantity

8 finding in his July 23, 2008 sentencing submission, he did

9 not raise this issue at the subsequent sentencing proceeding

10 on June 15, 2009. His failure to do so was consistent with

11 the fact that, at an intervening safety valve proffer with

12 the government, appellant admitted that he had sold between

13 30 and 40 kilograms of cocaine. The government provided

14 this information to the district court in its November 12,

15 2008 sentencing submission, and appellant did not contest

16 the veracity of that representation in the district court or

17 this appeal. Therefore, the district court was entitled to

18 rely on defendant’s statements during the safety valve

19 proffer as confirmation of the finding in the PSR that the

20 quantity of cocaine involved was somewhere between 15 and 50

21 kilograms. 

22 Finally, appellant argues that the district court
6

1 failed to give adequate consideration to the sentencing

2 factors listed in 18 U.S.C. § 3553(a). This contention runs

3 headlong into United States v. Fernandez, 443 F.3d 19 (2d

4 Cir. 2006), in which we held that we will “presume, in the

5 absence of record evidence suggesting otherwise, that a

6 sentencing judge has faithfully discharged her duty to

7 consider the statutory factors.” Id. at 29. Simply put,

8 there is no indication in the record that the district

9 court’s consideration of the § 3553(a) factors was

10 insufficient. 

11 We have considered each of appellant’s arguments and

12 find them to be without merit. Accordingly, the judgment of

13 the district court is hereby AFFIRMED. 

14

15 FOR THE COURT:

16 Catherine O’Hagan Wolfe, Clerk

17

18

19