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

RULI NGS BY SUMMARY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PERMIT TED AND IS GOVERNED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND TH IS COU RT ’ S L OCA L RULE 32.1.1. W HEN CIT ING A SUMMAR Y ORD ER IN A DOC UME NT FIL ED WIT H THI S C OUR T , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PARTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 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 27 282 

### 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 findings3 

### 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 district4 

### 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 district5 

### 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 court6 

### 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