United States v. Nolasco , 700 F. App'x 82 ( 2017 )

16-2068-cr
United States v. Nolasco, et al.
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 TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
9th day of November, two thousand seventeen.
Present:
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges,
JOHN G. KOELTL,
District Judge.*
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 16-2068
Juan Bonilla, AKA A.D.A. Pinto, Domingo
Fernandez, Yoel Pichardo, AKA Yoel Alberto
Pichardo Gonzalez, AKA Yoel Alberto Gonzalez
Pichardo, Nassir Mateo, Jose Encarnacion, Sandy
Beato, Juan Espinal, Gabriel Cano-Martinez, Eloys
Fernandez, AKA Chamboa, Pedro Fernandez, AKA
El Mono, Yudris Fernandez, AKA Gudris, Javier
Hernandez, AKA Rookie, Luis Perez, Randall
Martinez, AKA Randall, AKA Jose Rodriguez,
Wilton Rosario, AKA Winston Rosario, Henry
*
Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting
by designation.
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Fiorentino, Francisco Prado, AKA El Viejo, AKA
FNU LNU, Marcos Rodriguez, AKA Markito,
Emmanuel Tavarez, Jose Antonio Lopez Santiago,
AKA Amarante, Miguel Tavares, AKA Lepido,
Nolberto Morel, AKA Boonie, Jose Tejada,
Defendants,
NELSON NOLASCO, AKA MENOR, AKA ANGEL
SOTO-CABAN,
Defendant-Appellant.
_____________________________________
For Defendant-Appellant: Randall D. Unger, Esq., Bayside, NY.
For Appellee: Bridget M. Rohde, Acting United States Attorney,
Jo Ann M. Navickas & Alexander Solomon,
Assistant United States Attorneys, Eastern District
of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Glasser, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Nelson Nolasco (“Nolasco”) pleaded guilty to one count of
conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (“the Hobbs Act
count”), one count of conspiracy to distribute heroin, cocaine, MDMA, and marijuana, in violation
of 21 U.S.C. §§ 841 and 846 (“the distribution count”), and one count of use of a firearm in relation
to a crime of violence, in violation of 18 U.S.C § 924(c) (“the firearm use count”). On June 16,
2016, the United States District Court for the Eastern District of New York (Glasser, J.) held a
sentencing hearing. During that hearing, the court noted that both the distribution count and the
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firearm use count provided for mandatory minimum sentences. It calculated Nolasco’s mandatory
sentence for the distribution count to be 240 months, and his mandatory sentence for the firearm
use count to be 120 months, for a total of 360 months. After explaining that there is no mandatory
minimum sentence for the Hobbs Act count, the court determined that Nolasco’s sentence for that
count should be 60 months, and it sentenced Nolasco principally to 420 months’ imprisonment.
The sole question for our review is whether the Supreme Court’s recent decision in Dean v. United
States, 137 S. Ct. 1170 (2017), requires us to vacate the district court’s sentencing decision for the
Hobbs Act count and remand for resentencing.1 We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal.
In Dean, the Supreme Court held that when a defendant is facing two consecutive
sentences—one for a predicate offense, which does not carry a mandatory minimum sentence,
and one for an offense committed under § 924(c), which does carry a mandatory minimum
sentence—the court may consider the defendant’s § 924(c) sentence when deciding the proper
time to be served for the predicate offense. See id. at 1176–77. Dean may have effectively
overruled our own circuit’s precedent, which had held to the contrary. See United States v. Chavez,
549 F.3d 119, 135 (2d Cir. 2008). We have yet to decide if Dean abrogated our decision in Chavez.
We need not do so here, however, because even assuming arguendo that it did, there is no basis to
disturb Nolasco’s sentence.
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Nolasco also insists that his sentence was procedurally unreasonable because the district court “fail[ed] to give
proper consideration” to the factors outlined in 18 U.S.C. § 3553(a). Br. for Def.-Appellant at 20. We do not address
the merits of this argument, because Nolasco waived the issue by not discussing it beyond a single sentence at the end
of his brief. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 40 n.14 (2d Cir. 2012) (“This one-sentence argument
is insufficient to raise [an] issue for review before this Court.”); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on
appeal.”).
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Nolasco did not raise below the issue of whether the district court could consider Nolasco’s
sentence for the firearm use count in determining the appropriate sentence for the Hobbs Act
count. Accordingly, we review his sentencing claim pursuant to Dean for plain error. See Fed. R.
Crim. P. 52(b); United States v. Boyland, 862 F.3d 279, 288 (2d Cir. 2017). Under this standard,
we may vacate the decision only if the defendant establishes the following four criteria: “(1) there
is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Boyland, 862 F.3d at 288–89 (quoting United States v.
Marcus, 560 U.S. 258, 262 (2010)) (internal quotation marks omitted). In the past, we have applied
“modified plain error” review when the error in question resulted from a supervening decision.
United States v. Prado, 815 F.3d 93, 102 (2d Cir. 2016). Under this “modified” rule, the
government bears the burden of proving that the error did not prejudice the defendant. See id. We
have expressed doubt in recent years about the continued viability of the “modified plain error”
rule, given the Supreme Court’s decision in Johnson v. United States, 520 U.S. 461 (1997). Prado,
815 F.3d at 102–03. However, “[b]ecause the outcome is the same regardless of whether the
government or [Nolasco] bear[s] the burden of persuasion, we need not decide definitively here
whether Johnson sounded the modified plain error rule’s death knell.” Id. at 103.
Simply put, even assuming arguendo that the district court made a Dean error, and even
assuming arguendo that the Dean error was “clear,” we are convinced that the error did not
prejudice Nolasco. See Boyland, 862 F.3d at 288–89. In other words, even if the district court had
known that it could consider Nolasco’s mandatory sentence for the firearm use count when
deciding Nolasco’s sentence for the Hobbs Act count, there is no basis to conclude that it would
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have imposed a more lenient sentence. The district court judge made clear that Nolasco’s “conduct
ha[d] been extremely violent over a period of years,” and included “[b]reaking into homes, forcing
his way into homes,” and “[s]hooting two other persons from whom he obtained 10 kilograms of
drugs that he didn’t want to pay for.” A349. The court expressly told Nolasco he deserved to be
sentenced “quite severely . . . because of the very, very serious crimes that [he] committed.” A352.
In fact, the judge suggested that he would have sentenced Nolasco to more than 60 months for the
Hobbs Act count, if doing so would not have created a sentencing disparity between Nolasco and
his co-conspirators. This case is therefore quite unlike Dean, where the sentencing judge explicitly
stated that he would have given the petitioner a lesser sentence if his circuit’s interpretation of §
924(c) did not prohibit him from doing so. See Dean, 137 S. Ct. at 1175. In short, there is no
evidence that the district court judge’s awareness of the Dean rule would have affected his
sentencing decision, and there is considerable basis to conclude it would have had no bearing at all.
Accordingly, we conclude that, even assuming arguendo that the government bore the burden on
the issue of prejudice, the government has successfully demonstrated on this record that Nolasco
suffered no prejudice. See Boyland, 862 F.3d at 288–89.
* * *
We have considered Nolasco’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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