United States v. Lluberes , 372 F. App'x 151 ( 2010 )

07-1252-cr
USA v. Lluberes
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.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 20th day of April, two thousand ten.
Present: PIERRE N. LEVAL,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
____________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- No. 07-1252-cr
EDUARDO LLUBERES,
Defendant-Appellant.
____________________________________________________________
For Defendant-Appellant: Arza Feldman, Steven A. Feldman, Feldman &
Feldman, Uniondale, N.Y.
For Appellee: Christopher L. LaVigne, Celeste L. Koeleveld,
Andrew L. Fish, Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Chin, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of the district court are AFFIRMED in part and
VACATED and REMANDED in part.
Defendant-appellant Eduardo Lluberes appeals from two judgments of the United States
District Court for the Southern District of New York (Chin, J.), entered March 22, 2007, (1)
convicting defendant, following a jury verdict, of possessing with intent to distribute and
conspiring to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B)
and 846 (“the Narcotics Conviction”), and (2) convicting defendant, following his entry of a plea
of guilty, of one count of bail jumping in violation of 18 U.S.C. § 3146 (“the Bail Jumping
Conviction”). We assume the parties’ familiarity with the underlying facts and procedural
history of this case.
At the outset, the government argues that, under the fugitive disentitlement doctrine, we
should decline to entertain defendant’s challenges to the Narcotics Conviction because defendant
intentionally fled during the pendency of his narcotics trial and was not apprehended until
approximately 15 years later. Under that doctrine, we have the “discretion to refuse to rule on
the merits of a defendant’s postconviction claims of trial error when the defendant has fled from
justice.” United States v. Morgan, 254 F.3d 424, 426 (2d Cir. 2001) (per curiam) (quoting
United States v. Bravo, 10 F.3d 79, 83 (2d Cir. 1993)). Where, as here, a defendant became a
fugitive while his case was pending in the district court, the doctrine is properly invoked so long
as there is “some connection between a defendant’s [prior] fugitive status and his appeal.”
Ortega-Rodriguez v. United States, 507 U.S. 234, 249 (1993).
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Here, it is patent that defendant’s prior fugitive status had a sufficiently adverse impact
on the appellate process to warrant this sanction because the passage of over twenty years since
defendant’s trial makes it extremely likely that “the Government would be prejudiced in locating
witnesses and presenting evidence at retrial after a successful appeal.” Ortega-Rodriguez, 507
U.S. at 249. Even assuming that the government’s witnesses could be found and produced at a
retrial, their memories of the details concerning a drug transaction that occurred over twenty
years ago would undoubtedly have faded. See Bravo, 10 F.3d at 82-85 (affirming the district
court’s application of the fugitive disentitlement doctrine for this reason, among others).
Accordingly, we decline to reach defendant’s challenges to the Narcotics Conviction, and affirm
that portion of the district court’s judgment.
Defendant also challenges several aspects of the district court’s sentence. He principally
contends that the district court erred in calculating the applicable Guidelines range. The record
makes clear, however, that the district court properly treated defendant’s failure to appear as an
obstruction of justice with respect to the underlying offenses, grouped the offenses together in
order to determine the applicable Guidelines range, and apportioned the total sentence selected
between the offenses, imposing consecutive terms of imprisonment. United States v. Kirkham,
195 F.3d 126, 131-32 (2d Cir. 1999); see U.S.S.G. § 2J1.6, cmt., application n. 3 (2009). The
resulting sentence did not in any way result in impermissible “double counting.” See United
States v. Maloney, 406 F.3d 149, 152-53 (2d Cir. 2005).
Defendant also argues that the district court improperly viewed the Guidelines as
mandatory and failed to consider any of the § 3553(a) factors. The district court unequivocally
stated in open court, however, that it could consider defendant’s alleged cooperation in deciding
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“whether to go below the [Guidelines] range,” 1/9/07 Tr. at 14-15, thus plainly demonstrating
that the court properly treated the Guidelines as advisory. Moreover, we “‘presume, in the
absence of record evidence suggesting otherwise, that a sentencing judge has faithfully
discharged [his] duty to consider the statutory factors’ enumerated in § 3553(a).” United States
v. Carter, 489 F.3d 528, 540 (2d Cir. 2007) (quoting United States v. Fernandez, 443 F.3d 19, 30
(2d Cir. 2006)). Here, nothing in the record here indicates that the district court ignored the
statutory factors; to the contrary, the court explicitly stated that it had done so. To the extent that
defendant argues that his sentence was substantively unreasonable, the record plainly indicates
that defendant’s sentence falls well “within the range of permissible decisions.” United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490 F.3d
208, 238 (2d Cir. 2007)).
Finally, defendant correctly argues that the district court erred in imposing a $100
mandatory special assessment on each of the two counts in the Narcotics Conviction. The
government concedes this point, and we accordingly remand this case to the district court with
instructions to reduce the special assessment on the Narcotics Conviction to $100.
We have considered defendant’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgments of the district court are AFFIRMED in
part and VACATED and REMANDED in part.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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