UNITED STATES of America, Appellee, v. Jose CUEVAS, a/k/a Chencho, a/k/a Checho, Appellant, 484 F. App'x 642

SUMMARY ORDER Jose Cuevas appeals from the February 24, 2003 judgment of the United States District Court for the Southern District of New York (Rakoff, /.) sentencing him to 235 months’ imprisonment following his plea of guilty to all counts of an indictment charging him with (1) conspiracy to import five kilograms and more of cocaine in violation of 21 U.S.C. § 846; (2) conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h); and (3) money laundering in violation of 18 U.S.C. § 1956(a)(l)(B)(

i) and 2. Cuevas also appeals from the district court’s memorandum order of November 15, 2011 denying his motion for resentencing after this Court’s remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. When this Court remands to the district court pursuant to Crosby, the district court is charged with determining “whether to resentence,” “based on the circumstances at the time of the original sentence.” 397 F.3d at 120.

We review a district court’s sentence for reasonableness even after a district court declines to resentence on a Crosby remand. United States v. Williams, 475 F.3d 468, 471 (2d Cir.2007). We review a sentence for reasonableness under an abuse of discretion standard. United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008). This inquiry comprises two components, procedural and substantive. Id.

As to procedure, “[a] district court commits procedural error where it fails to calculate the Guidelines range ..., makes a mistake in its Guideline calculation, or treats the Guidelines as mandatory.” Id. at 190 (citations and internal quotation marks omitted). Respecting substantive review, an appellate court should “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” Id. at 189 (internal quotation marks omitted). We find neither substantive nor procedural error here.

While Cuevas points to evidence in the record that would have permitted the district court to find he was a minor participant in the drug conspiracy, there was also sufficient evidence in the record to support the district court’s conclusion that Cuevas’ role likely fell between “mere messenger” and “executive,” but nevertheless was not at the “low level” required to be found to have only played a minor role. Similarly, while Cuevas is correct that no one testified that he actually saw a gun, based on the record evidence the district court was free to impose the enhancement. United States v.

Batista, 684 F.3d 333, 343 (2d Cir.2012) (“Although a physical nexus between the defendant and the firearm is often useful in determining possession, such a nexus is by no means required in order for a court to impose the enhancement. Rather, courts should determine whether, by a preponderance of the evidence — including evidence relating to a defendant’s specialized knowledge regarding the activities of drug gangs — possession of a firearm in connection with the offense was reasonably foreseeable by the defendant.”).

Finally, Cue-vas argues the district court erred in not reducing his sentence based on his post-sentence rehabilitation. Cuevas correctly argues that Pepper v. United States, — U.S. -, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), permits a district court to consider evidence of post-sentence rehabilitation “when resentencing petitioner after his initial sentence had been set aside on appeal.” Id. at 1236. However, Pepper does not compel a district court to impose a lower sentence based on post-sentence rehabilitation in every case.

Here, the record reflects that the district court considered Cuevas’ “significant personal development he [had] undertaken and the outstanding record he has maintained during his time in prison,” but concluded that “[w]hile these facts are relevant, they do not materially change what justice required at the time of Cuevas’s sentencing, nor what it requires now, which is the sentence previously imposed.” United States v. Cuevas, No. 98 Cr 1053-02(JSR), 2011 WL 5579047, at *2 (S.D.N.Y. Nov. 15, 2011).

The district court could have chosen to credit his post-sentence rehabilitation, but the district court’s decision not to do so is well within the court’s discretion. There is no error. Accordingly, the judgment of the district court hereby is AFFIRMED.