United States v. Sampel and Gonzalez ( 2021 )

19-1654 (L)
U.S. v. Sampel and Gonzalez
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 6th day of July, two thousand twenty-one.
PRESENT:
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. Nos. 19-1654 (L), 19-2086
JUAN SAMPEL, JOSE GONZALEZ,
Defendants-Appellants.
_________________________________________
FOR APPELLEE: SEAN C. ELDRIDGE, Assistant United
States Attorney, for James P. Kennedy, Jr.,
United States Attorney for the Western
District of New York, Rochester, NY.
FOR APPELLANT JUAN SAMPEL: TINA SCHNEIDER, Law Office of Tina
Schneider, Portland, ME.
Juan Sampel, pro se, Ray Brook, NY.
FOR APPELLANT JOSE GONZALEZ: Mehmet K. Okay, The Okay Law Firm,
Batavia, NY.
Appeal from two judgments of the United States District Court for the Western
District of New York (Siragusa, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment with respect to Jose Gonzalez entered
on June 21, 2019, is AFFIRMED, and the case of Juan Sampel is REMANDED with
instructions that the district court vacate the judgment against him entered on May 31, 2019,
only as to the sentence then imposed, and conduct a resentencing consistent with this order.
Juan Sampel and Jose Gonzalez appeal from the judgments of conviction entered
against them following their joint trial in October 2018, in which a jury found each
defendant guilty of one count of conspiracy to distribute and possess with intent to
distribute five or more kilograms of cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. The
district court sentenced Gonzalez primarily to 262 months’ imprisonment and Sampel
primarily to 360 months’ imprisonment. In his counseled appeal, Sampel challenges the
procedural reasonableness of his sentence, arguing that the district court erroneously applied
three enhancements in calculating his Guidelines sentence. In his separate pro se brief,
Sampel argues that the district court miscalculated the quantity of drugs involved in his
criminal conduct, and therefore wrongly determined his base offense level under the
Guidelines. Gonzalez argues on appeal that the evidence at trial was insufficient to support
his conviction.
I. Procedural Reasonableness of Sampel’s Sentence
A. Managerial Role and Use-of-Affection Enhancements
In calculating the applicable Guidelines offense level, the district court determined
that Sampel was subject to a three-level aggravating role adjustment for being a “manager or
supervisor” in criminal activity that “involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(b). “To qualify for th[is] enhancement, a defendant need only
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manage or supervise one other participant, and may properly be considered a manager or
supervisor if he exercised some degree of control over others involved in the commission of
the offense.” United States v. Pristell, 941 F.3d 44, 50 (2d Cir. 2019). 1 “[A] district court must
make specific factual findings when enhancing a defendant’s sentence based on his role in
the offense, as such findings are necessary for appellate review.” Id. The district court also
determined that Sampel was subject to a two-level enhancement for purportedly using
affection to involve his wife in the drug offense. See U.S.S.G. § 2D1.1(b)(16)(A). We will
review the application of these enhancements for clear error. 2
In support of both enhancements, the district court cited testimony and evidence
presented at trial that described how Miriam Sampel, Juan Sampel’s wife, played a role in her
husband’s crimes. Specifically, Juan Sampel directed a cooperating witness, Angel Ocasio, to
go to Miriam Sampel’s insurance agency to pick up money that Juan Sampel owed him for
the purchase of cocaine. The next day, Ocasio went to the insurance agency and Miriam
Sampel gave him a box containing $117,000.
1Unless otherwise noted, in quoting caselaw and the parties’ briefs, this Order omits all alterations,
citations, footnotes, and internal quotation marks.
2
It can reasonably be debated whether a clear error standard applies to our review of these
enhancements. With respect to the role enhancement in particular, Sampel states that he does not
challenge the district court’s factual findings, but rather attacks the sufficiency of those findings as a
basis for applying the enhancement. See Sampel Appellant’s Br. at 19 (“The problem here is not that
the district court’s findings of fact were unsupported but rather that these facts were insufficient to
support imposition of the manager/supervisor enhancement as a matter of law.”). Under these
circumstances, Sampel’s appeal might be understood to raise a question of law for which de novo
review is appropriate. See, e.g., United States v. Soto-Solivan, 506 F. App’x 86, 87 (2d Cir. 2012)
(summary order) (“Where the parties dispute only whether the facts, as found by the district court,
warrant a leadership enhancement under § 3B1.1, we review a district court’s determination
de novo.”); see also United States v. Burgos, 324 F.3d 88, 91 (2d Cir. 2003) (explaining that “cases in this
Circuit are not wholly consistent in expressing how much deference is ‘due’ the district court’s
determination when reviewing the imposition of an aggravating role adjustment” and that some
decisions review determinations of a defendant’s role de novo and others review those determinations
for clear error). We need not resolve this question here, however, because the parties agree that a
clear error standard applies, and the district court’s application of these enhancements fails under
this more exacting standard.
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Juan Sampel maintains on appeal that neither the evidence cited by the district court,
nor any other record evidence, establishes that he directed his wife’s participation in the
criminal activity or that he used affection to involve her in his crimes. We agree. Evidence
that Sampel told a person to pick up money from his wife does not establish that Sampel
“exercised [any] degree of control” over her, Pristell, 941 F.3d at 50, or that he in any way
directed her involvement in the drug business. Likewise, this evidence does not support the
conclusion that Sampel used affection to involve his wife in the crimes at issue. Simply put,
more is needed. The Government fails on appeal to show that the record otherwise supports
the application of these enhancements. Although the Government asserts that the district
court was in the best position to make determinations based on the totality of evidence
presented at trial, it fails to articulate how the facts considered by the district court provided
an adequate foundation for these two enhancements, which resulted—significantly—in a
five-level increase in Sampel’s offense level. Identifying clear error, we therefore remand
Sampel’s case to the district court for resentencing.
B. Drug Premises Enhancement
The district court also applied a two-level enhancement on the ground that Sampel
“maintained a premises for the purpose of manufacturing or distributing a controlled
substance.” U.S.S.G. § 2D1.1(b)(12). Overruling Sampel’s objection to the Probation
Department’s pre-sentence report (PSR), the district court concluded that Sampel used his
home as a drug premises, citing the testimony presented at trial.
The record supports the district court’s application of this enhancement. Sampel
concedes that a search of his home resulted in the discovery of a digital scale with white
powder residue, gloves, plastic bags, and a large amount of cash. When considered alongside
the credible evidence that Sampel conducted at least two meetings at his home related to his
drug business, we cannot conclude that the district court erred in applying the drug premises
enhancement.
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C. Drug Quantity Calculation
In his pro se brief, Sampel argues that the district court committed clear error in
calculating the drug quantity involved in his conduct to determine his base offense level
under the Guidelines. In the PSR, the Probation Department calculated Sampel’s base
offense level to be 36, citing Ocasio’s testimony that he supplied Sampel with at least 150
kilograms of cocaine between 2015 and 2016. See U.S.S.G. § 2D1.1(a)(5), (c)(2) (providing a
base offense level of 36 for crimes involving “[a]t least 150 KG but less than 450 KG of
Cocaine”). Over Sampel’s objection, the district court found that the PSR’s drug quantity
determination was supported by a preponderance of the evidence.
“Where there has been no seizure of narcotics, or where the quantity seized does not
reflect the scale of the offense, the Guidelines require the district court to estimate the
amount of drugs involved in the offense.” United States v. Blount, 291 F.3d 201, 215 (2d Cir.
2002). We review the district court’s factual determination for clear error. See United States v.
Batista, 684 F.3d 333, 344 (2d Cir. 2012).
At trial, Angel Ocasio testified that Sampel was his biggest customer and estimated
that he sold Sampel between 150–175 kilograms of cocaine. Contrary to Sampel’s arguments
on appeal, nothing in the record suggests that Ocasio’s testimony was facially implausible;
therefore, the district court was entitled to rely on this testimony in calculating the drug
quantity. See United States v. Cirineo, 60 F. App’x 342, 344 (2d Cir. 2003) (summary order)
(upholding district court’s drug quantity determination based on witness testimony and
explaining that “[w]hen a trial judge’s credibility finding is based on his or her decision to
credit the testimony of a witness who has told a coherent and facially plausible story that is
not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error”); see also United States v. Frazier, 805 F. App’x 15, 19 (2d Cir.
2020) (summary order) (upholding drug quantity finding where district court relied on
“specific testimony from a co-conspirator”). Accordingly, we see no error in the district
court’s calculation of the drug quantity underlying Sampel’s base offense level.
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II. Sufficiency of the Evidence Supporting Gonzalez’s Conviction
Gonzalez’s only argument on appeal is that he was convicted based on insufficient
evidence. The Court reviews a challenge to the sufficiency of the evidence de novo. United
States v. Napout, 963 F.3d 163, 184 (2d Cir. 2020). In evaluating the sufficiency of the
evidence, the Court considers “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” In re Terrorist Bombings of U.S. Embassies in
E. Afr., 552 F.3d 93, 112 (2d Cir. 2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original)). A conviction may be upheld based on the testimony of a single
witness “so long as that testimony is not incredible on its face and is capable of establishing
guilt beyond a reasonable doubt.” Id. (quoting United States v. Gordon, 987 F.2d 902, 906 (2d
Cir. 1993)).
Gonzalez contends that the primary evidence against him came from the testimony
of cooperating witness Angel Ocasio, and that Ocasio’s testimony was insufficient to
support his conviction because it was “incredible on its face.” Gonzalez Br. 2. Gonzalez
identifies no specific aspect of Ocasio’s testimony that was incredible, but challenges
Ocasio’s credibility generally, asserting that he lacks moral character. These attacks on
Ocasio’s character do not establish that Ocasio’s testimony implicating Gonzalez was
“incredible on its face.” In re Terrorist Bombings, 552 F.3d at 112. Furthermore, in the context
of sufficiency challenges, this Court has made clear that “[a]ssessments of witness credibility
. . . lie solely within the province of the jury.” United States v. Payne, 591 F.3d 46, 60 (2d Cir.
2010). As the Government emphasizes in its opposition brief, these criticisms of Ocasio’s
character were presented to the jury through the defense’s cross-examination of Ocasio and
in summation. Because Gonzalez fails to establish that Ocasio’s testimony implicating
Gonzalez was incredible on its face, we conclude that his sufficiency challenge fails.
* * *
We have considered Sampel’s and Gonzalez’s remaining arguments on appeal and
find in them no basis for reversal. For the reasons set forth above, the judgment with respect
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to Jose Gonzalez is AFFIRMED, and the case of Juan Sampel is REMANDED with
instructions that the district court vacate the judgment against him only as to the sentence
imposed, and conduct a resentencing consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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