11-1431-cr
United States v. Santo

                            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, 500 Pearl Street, in the City of New York,
on the 9th day of July, two thousand twelve.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            GERARD E. LYNCH,
                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                                       Appellee,

                         -v.-                                              11-1431-cr

WILLIAM VALERIO, HENRY CONDE, LUIS M. BATISTA,
RAPHAEL RODRIGUEZ, DEYANIRA SANCHEZ,
ALEXANDER ALCANTARA, VIRGILIO HICIANO,

                                       Defendants,

MIGUEL SANTO, AKA MIGUEL SANTOS,
AKA EL MECANICO,

                                       Defendant-Appellant.


Appearing for Appellant:        Julia Pamela Heit, New York, N.Y.

Appearing for Appellee:         Anthony M. Capozzolo, Assistant United States Attorney, Eastern
                                District of New York (Loretta E. Lynch, United States Attorney,
                                David C. James, Assistant United States Attorney, on the brief),
                                Brooklyn, N.Y.
     Appeal from a judgment of the United States District Court for the Eastern District of
New York (Irizarry, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant Miguel Santos appeals from a judgment of the district court sentencing him
principally to 120 months’ imprisonment following his plea of guilty to one count of conspiracy
to distribute and possess with intent to distribute cocaine base, cocaine, and MDMA, in violation
of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iii), (b)(1)(A)(ii)(II), and (b)(1)(C). On appeal, Santos
asserts that the district court erred in denying him “safety valve” relief under 18 U.S.C. § 3553(f)
and U.S.S.G. § 5C1.2. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        “We review a sentencing court’s factual findings for clear error.” United States v. Ortiz,
136 F.3d 882, 883 (2d Cir. 1997). “At sentencing, the court . . . may accept any undisputed
portion of the presentence report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). “When a
defendant fails to challenge factual matters contained in the presentence report at the time of
sentencing, the defendant waives the right to contest them on appeal.” United States v. Jass, 569
F.3d 47, 66-67 (2d Cir. 2009) (internal quotation marks omitted). Applying these principles, we
conclude that Santos’s appeal has no merit because he conceded below virtually every finding of
fact he now disputes. See United States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008) (deeming
challenge to role enhancement waived where defendant failed to object to supporting facts in
presentence report).

        As to the court’s finding that a supervisory role enhancement applied, see 18 U.S.C. §
3553(f)(4); U.S.S.G. § 5C1.2(a)(4), Santos argues that the court erred in concluding that Santos
managed his son’s involvement in the conspiracy because: (1) the record is sparse as to the son’s
involvement; (2) the government did not prove that Santos managed or controlled his son in
furtherance of the conspiracy; and (3) the government should have borne the burden of proving
that Santos managed his son but the court did not specify who bore the burden.

        The first two points are issues of fact that Santos conceded below and therefore waived.
See Eberhard, supra. As to whether the court properly assigned and articulated which party bore
the burden of proof, Santos did not raise the issue below and so we review it only for plain error.
See United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). Since Santos conceded the
relevant facts and recognized the validity of the government’s legal reasoning, Santos cannot
prevail on plain error review because any error as to the burden of proof cannot have affected the
outcome of the proceeding and therefore cannot have affected Santos’s substantial rights. See
United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010).

        Regarding the court’s finding that Santos had made a “credible threat[] of violence”
against co-conspirator Virgilio Hiciano, see 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2),
Santos argues on appeal that (1) the allegedly threatening letter was too vague to constitute a

                                                 2
credible threat; (2) the letter was actually a good faith attempt “to warn Hiciano to pay his debt
so that neither he or his family would be injured as [Santos] was,” and (3) the letter “was a
product of coercion and actual violence” against Santos, thereby excusing his actions under a
theory of duress. Appellant’s Br. 31.

        These arguments are waived. See Eberhard, supra. As to the first two arguments, during
the sentencing hearing, defense counsel “concede[d] that there was violence here and [Santos]
availed himself of that when he threatened Mr. Hiciano.” Sentencing Tr. 16:11-12. Santos
cannot now argue that in fact he was not threatening Hiciano. As to the last argument, which
suggests a theory of duress, it is waived; while Santos made a similar argument in his sentencing
memorandum, defense counsel conceded at the sentencing hearing that Santos’s victimization
“d[id]n’t justify his behavior.” Id. at 16:15-16.

       We have reviewed the remainder of Santos’s arguments and have found them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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