United States v. Fallas , 477 F. App'x 771 ( 2012 )

11-807-cr
United States v. Fallas
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 25th day of April, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 AMALYA L. KEARSE,
10 PETER W. HALL
11 Circuit Judges.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 United States,
15 Appellee,
16
17 -v.- 11-807-cr
18
19 Edgardo Arroyo; Pedro Delorbe, AKA
20 Compadre; Angelica Guevara, AKA Angie,
21 Defendants,
22
23 Ronald Fallas, AKA Danny,
24 Defendant-Appellant.
25 - - - - - - - - - - - - - - - - - - - -X
26
27 FOR DEFENDANT-APPELLANT: Alice L. Fontier (Joshua L.
28 Dratel, on the brief), Law
29 Offices of Joshua L. Dratel,
30 P.C., New York, NY.
31
1
1 FOR APPELLEE: Glen A. Kopp (Christopher D.
2 Frey and John P. Collins, Jr.,
3 on the brief), Assistant United
4 States Attorneys for Preet
5 Bharara, United States Attorney
6 for the Southern District of New
7 York, New York, NY.
8
9 Appeal from a judgment of the United States District
10 Court for the Southern District of New York (Preska, C.J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13 AND DECREED that the judgment of the District Court is
14 AFFIRMED.
15
16 Defendant-Appellant Ronald Fallas appeals his
17 conviction and sentence for conspiracy to distribute more
18 than five kilograms of cocaine. 21 U.S.C. §§ 841(a)(1),
19 846. He was sentenced principally to 180-months’
20 incarceration.
21 [1] Fallas argues there was insufficient evidence to show
22 beyond a reasonable doubt that the conspiracy that he was a
23 part of was to distribute more than five kilograms of
24 cocaine. A defendant challenging the sufficiency of the
25 evidence undertakes a “heavy burden,” United States v.
26 Gaskin, 364 F.3d 438, 459 (2d Cir. 2004) (internal quotation
27 marks omitted), because the standard of review is
28 “exceedingly deferential,” United States v. Hassan, 578 F.3d
29 108, 126 (2d Cir. 2008). A conviction must be affirmed
30 against a sufficiency-of-evidence challenge if “any rational
31 trier of fact could have found the essential elements of the
32 crime beyond a reasonable doubt.” Jackson v. Virginia, 443
33 U.S. 307, 319 (1979). In evaluating the sufficiency of the
34 evidence, “we must view the evidence in the light most
35 favorable to the government, crediting every inference that
36 could have been drawn in the government’s favor and
37 deferring to the jury’s assessment of witness credibility
38 and its assessment of the weight of the evidence.” United
39 States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008) (internal
40 citations, brackets, and quotation marks omitted).
41 The government presented sufficient evidence that the
42 conspiracy was to distribute, and possess with intent to
43 distribute, more than five kilograms of cocaine. One
44 witness testified to seeing Fallas sell two kilograms of
2
1 cocaine. Testimony also established that Fallas transported
2 two kilograms of cocaine from El Paso to New York and,
3 separately, that Fallas told a witness that he had
4 transported at least nine kilograms of cocaine to New York.
5 In addition, a witness testified that Fallas had discussed
6 with him four additional kilograms of cocaine that Fallas
7 was bringing into the country. And, one of Fallas’s
8 couriers was arrested while in possession of two kilograms
9 of cocaine. That evidence alone established that the
10 conspiracy was to distribute or possess with the intent to
11 distribute more than five kilograms of cocaine.
12 Fallas contends there was insufficient evidence to
13 support those findings. But the quantity of drugs need not
14 be shown only by the drugs actually seized. Instead, it can
15 be proven by “specific evidence,” such as “drug records,
16 admissions or live testimony.” Cf. United States v.
17 Shonubi, 998 F.2d 84, 89 (2d Cir. 1993) (indicating factors
18 applicable to calculating drug quantities for purposes of
19 imposing sentence). Here, there was sufficient evidence in
20 the form of testimony from Fallas’s co-conspirators.
21 Fallas argues that there is insufficient evidence that
22 the conspiracy actually distributed five kilograms of
23 cocaine. However, the success of the conspiracy is
24 irrelevant; what matters is the agreement. United States v.
25 Labat, 905 F.2d 18, 21 (2d Cir. 1990) (“Since the essence of
26 conspiracy is the agreement and not the commission of the
27 substantive offense that is its objective, the offense of
28 conspiracy may be established even if the collaborators do
29 not reach their goal.”); accord United States v. Tejada, 956
30 F.2d 1256, 1264 (2d Cir. 1992) (“Because the agreement
31 defines the conspiracy, the parties’ failure to complete the
32 transaction does not shrink the conspiracy’s scope.”).
33 [2] We generally review sentences for reasonableness under
34 the “deferential abuse-of-discretion standard.” Gall v.
35 United States, 552 U.S. 38, 41 (2007); accord United States
36 v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).
37 Reasonableness review has both a substantive and procedural
38 dimension. United States v. Whitley, 503 F.3d 74, 76 (2d
39 Cir. 2007).
40 Fallas’s offense was premised on a base-level offense
41 of 34 because the quantity of cocaine connected to him was
42 between 15 and 50 kilograms. See U.S.S.G. § 2D1.1(c)(3).
43 He claims that his sentence was procedurally unreasonable
44 because there was insufficient evidence to establish his
45 responsibility for that quantity of cocaine. See Gall, 552
3
1 U.S. at 51 (explaining possible bases for procedural
2 unreasonableness, including reliance on clearly erroneous
3 facts).
4 As described above, sufficient evidence supported
5 Fallas’s connection to and responsibility for more than 15
6 kilograms of cocaine. Moreover, Fallas has not established
7 that the district court relied on factual findings that were
8 clearly erroneous. Accordingly, his procedural challenge to
9 his sentence fails.
10 We have considered all of Fallas’s additional arguments
11 and find them to be without merit. Accordingly, the
12 judgment of the District Court is AFFIRMED.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
4