         12-1920-cr
         United States v. Valencia

                                     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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of March, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER, Jr.,
 7                RICHARD C. WESLEY,
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                      Appellee,
17
18                        -v.-                                              No. 12-1920-cr
19
20       CARLOS ALBERTO MERA VALENCIA, AKA
21       Frederico Rivera Diaz, AKA Luis Hernando
22       Motato Velasco, AKA Pintor, AKA El Tio,
23       AKA Max, AKA Maxi,
24
25                                      Defendant-Appellant,
26
27       HERMES SERRANO VARGAS, AKA Diego, JOSE
28       JAVIER ROLDAN CHICA, AKA Javier, JULIO
29       ENRIQUE AYALA MUNOZ, CARLOS SALAZAR,
30       AKA Compi,
31
32                                      Defendants.
33
 1   FOR APPELLANT:     LAURIE S. HERSHEY, Manhasset, NY.
 2
 3   FOR APPELLEE:      SUSAN CORKERY, Assistant United States
 4                      Attorney (Emily Berger, Assistant United
 5                      States Attorney, on the brief), for
 6                      Loretta E. Lynch, United States Attorney
 7                      for the Eastern District of New York,
 8                      Brooklyn, NY.
 9
10        Appeal from the United States District Court for the
11   Eastern District of New York (Sifton, J. and Townes, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the District Court is

15   AFFIRMED.

16        Defendant Carlos Valencia pled guilty to conspiring to

17   distribute heroin internationally in violation of 21 U.S.C.

18   §§ 963, 959(c), and 960(b).   The district court (Townes, J.)

19   sentenced him to 168 months’ imprisonment.   Valencia

20   appeals, asserting (1) that the sentence is substantively

21   unreasonable and (2) that the district court erroneously

22   refused to award Valencia credit for acceptance of

23   responsibility.   We assume the parties’ familiarity with the

24   facts and procedural history of this case.

25                             DISCUSSION

26       In sentencing Valencia, the district court properly

27   considered all of the factors mandated by 18 U.S.C. § 3553,

28   including those identified by Valencia.   In light of the


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1    serious nature of the offense and the need to achieve

2    specific and general deterrence, the district court believed

3    that the Guidelines-minimum sentence of 168 months’

4    imprisonment was appropriate.       Valencia’s prior history –

5    including a previous conviction, incarceration, and

6    deportation - provide ample support for the district court’s

7    belief that 168 months’ imprisonment is a reasonable

8    sentence for Valencia’s role as a middle-man in this

9    international heroin-distribution conspiracy.

10       Valencia further argues that the district court

11   committed procedural error by not crediting him for

12   accepting responsibility despite its unchallenged

13   determination that defendant obstructed justice. Valencia

14   expressed his remorse for his behavior to the court, but the

15   court explicitly refused to credit his acceptance because

16   during the course of the proceedings, he continually lied

17   about his name, date of birth, and criminal history, filed

18   his fingertips to disguise his true identity, and lied about

19   his previous attorney’s role in his many attempts to deceive

20   the court.   The district court did not err in its assessment

21   of defendant’s credibility or in applying this assessment to

22   his expressions of remorse.     See United States v. Ubiera,


                                     3
1    486 F.3d 71, 76-77 (2d Cir. 2007).    The district court

2    distinctly found that the obstruction of justice enhancement

3    was appropriate and that the acceptance of responsibility

4    deduction was not.

5        Finally, Valencia’s multifaceted deceptions provided

6    the basis for both the obstruction of justice enhancement

7    and the loss of the acceptance of responsibility deduction.

8    See United States v. Champion, 234 F.3d 106, 110 (2d Cir.

9    2000) (per curiam).   “The Guidelines explicitly permit the

10   same act to be counted both for an obstruction enhancement

11   under section 3C1.1 and for denial of an acceptance of

12   responsibility decrease under section 3E1.1.”    United States

13   v. Castellanos, 355 F.3d 56, 60 (2d Cir. 2003); see also

14   United States v. Adekanbi, 675 F.3d 178, 187 (2d Cir. 2012).

15       We have considered Valencia’s remaining arguments and

16   find them to be without merit.    For the reasons stated

17   above, the judgments of the district courts are AFFIRMED.

18
19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
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23
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