15-2558-pr
Medrano v. United States of America



                              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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
1st day of June two thousand seventeen.

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________________

SERGIO MEDRANO,

                                  Petitioner-Appellant,

                         v.                                                   15-2558-pr

UNITED STATES OF AMERICA,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:          Matthew W. Brissenden, Garden City, NY.

Appearing for Appellee:           Michael D. Maimin, Assistant United States Attorney (John P.
                                  Cronan, Michael Ferrara, Assistant United States Attorneys, on the
                                  brief), for Joon H. Kim, Acting United States Attorney for the
                                  Southern District of New York, New York, NY.

       Appeal from the United States District Court for the Southern District of New York
(Swain, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Sergio Medrano appeals from the July 27, 2015 order of the United States District Court
for the Southern District of New York (Swain, J.) denying his petition to vacate, set aside, or
correct his conviction pursuant to 28 U.S.C. § 2255. His Section 2255 petition followed his
guilty plea to a charge of conspiracy to distribute five kilograms or more of cocaine in violation
of 21 U.S.C. § 846. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        “[A]n actual conflict of interest occurs when the interests of a defendant and his attorney
diverge with respect to a material factual or legal issue or to a course of action.” United States v.
Williams, 372 F.3d 96, 102 (2d Cir. 2004) (internal quotation marks and emphasis omitted). “An
actual, as opposed to a potential, conflict of interest exists when, during the course of the
representation, the attorney’s and defendant’s interests diverge with respect to a material factual
or legal issue or to a course of action.” United States v. Malpiedi, 62 F.3d 465, 469 (2d Cir.
1995) (internal quotation marks). “Once an actual conflict is established, a defendant need not
prove prejudice, but simply that a lapse in representation resulted from the conflict.” Williams,
372 F.2d at 106 (internal quotation marks omitted). “To prove a lapse in representation, a
defendant must demonstrate that some plausible alternative defense strategy or tactic might have
been pursued, and that the alternative defense was inherently in conflict with or not undertaken
due to the attorney's other loyalties or interests.” Mapliedi, 62 F.3d at 469 (internal quotation
marks omitted).

        Medrano argues that his attorney at sentencing, Arvom Robin, labored under an actual
conflict because Robin previously represented Juan Ordenas. During sentencing, Medrano
sought to have Robin argue that it was Ordenas, rather than Medrano, who was responsible for
transporting the 180-kilograms of cocaine that the government sought to attribute to Medrano.
Medrano wanted Robin to argue that a confusion had arisen because both Ordenas and Medrano
are known by the nickname “Toca.”

         The district court concluded that there was no actual conflict, because at the time Robin
represented Medrano, Ordenas’s conviction was final. Medrano v. United States, Nos. 13 cv
1604, 06 CR 61, 2015 WL 4522857, at *5 (S.D.N.Y. July 27, 2015). While not persuaded by the
district court’s rationale, we need not decide the issue conclusively. Even assuming arguendo an
actual conflict existed, Medrano’s alternate defense strategy is simply not plausible. Medina
identified Medrano as involved in the 180 kilogram shipment, not because Medina believed the
shipment was controlled by someone called Toca, but because of his personal interactions with
Medrano involving the drugs and the drug proceeds. Medina testified that he (1) met with
Moreno and Medrano in mid-December 2003 at a restaurant in the Bronx and was told by
Moreno that Medrano had just delivered a tractor trailer with 180-kilograms of cocaine
concealed in a trap; (2) was instructed by Moreno to bring tools to open the trap to gain access to
the rugs; (3) once the truck was taken to North Carolina to open the trap (which they had failed
to open), began, at Moreno’s instructions, to sell the drugs; (4) met with Moreno and Medrano in
January 2004, observed them conferring, and was told by Moreno that they had discussed the
need to collect payment for the 180-kilogram shipment; (5) was instructed by Moreno to


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complete selling the drugs and deliver $2 million of the proceeds to Medrano; and (6) personally
delivered to Medrano more than $2 million, representing the proceeds of his sale of the drugs.
Medina’s assertion of Medrano’s involvement in no way depended on a belief on Medina’s part
that the shipment was controlled by someone named Toca. Furthermore, Medrano’s attempt to
attribute this shipment to Ordenas depended on the testimony of Jesus Dominguez. Dominguez
testified that he had driven a truck containing a hidden shipment under Ordenas’s control, which
suffered a problem of inability to extricate the drugs from the trap. According to Dominguez’s
testimony, however, Dominguez was in prison at the time of the event involving the 180-
kilogram shipment, so that the experience he recounted of inability to open a trap could not have
involved the same event Medina described. Finally, even if Ordenas, who was part of the Cuco-
branch of the conspiracy, which shipped drugs from California to New York for sale, might have
had a role in sending the 180-kilo shipment from California to New York, this would in no way
have negated the role Medrano played, according to Medina’s testimony, upon the arrival of that
shipment to the Bronx. Under the circumstances, there was no plausible way attorney Robin
could have negated Medrano’s responsibility for the 180-kilo shipment by arguing that Ordenas
bore responsibility for it. See United States v. Feyrer, 333 F.3d 110, 118 (2d Cir. 2003)
(declining to find alternate strategy plausible after a review of the record demonstrated
otherwise).

        We have considered the remainder of Medrano’s arguments and find 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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