10-2833-cr
United States v. Soto-Pena

                             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 3rd day of February, two thousand twelve,

Present:       JOHN M. WALKER, JR.,
               ROSEMARY S. POOLER,
                         Circuit Judges.1

_____________________________________________________

UNITED STATES OF AMERICA,

                                             Appellee,

                        -v-                                                10-2833-cr

RAMON SOTO-PENA,

                                             Defendant-Appellant.


Appearing for Appellee:        Nicholas L. McQuaid, Katherina Polk Failla, Assistant United
                               States Attorneys (of counsel), for Preet Bharara, United States
                               Attorney for the Southern District of New York, New York, N.Y.

Appearing for Appellant:       Lawrence Sheehan, Bronx, N.Y.



       1
         Judge Debra Ann Livingston, a member of the original panel recused herself. Therefore,
this case is decided by the two remaining members of the panel pursuant to Second Circuit
Internal Operating Procedure E(b), formerly Section 0.14(b) of the Local Rules of the United
States Court of Appeals for the Second Circuit.
        Appeal from the United States District Court for the Southern District of New York
(Seibel, J.).

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

        Appellant Ramon Soto-Pena pleaded guilty to one count of conspiring to distribute
heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846, and one count of
unlawful reentry after having been deported, in violation of 8 U.S.C. § 1326(a). He was
sentenced principally to 128 months’ imprisonment. He now appeals from his June 17, 2010
judgment of conviction. On appeal, Soto-Pena asserts that the district court erred in imposing an
obstruction of justice enhancement and in denying an acceptance of responsibility credit when
determining his sentence. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

         Appellant first appeals the imposition of an obstruction of justice enhancement pursuant
to U.S.S.G. § 3C1.1. “The imposition of an obstruction-of-justice enhancement is subject to a
mixed standard of review. We review de novo the sentencing court's interpretation of the
Sentencing Guidelines but review its related findings of fact only for clear error.” United States
v. Fiore, 381 F.3d 89, 92 (2d Cir. 2004) (internal citation and quotation marks omitted). To
qualify for the enhancement based on perjury, “a sentencing court must find that the defendant 1)
willfully 2) and materially 3) committed perjury, which is (a) the intentional (b) giving of false
testimony (c) as to a material matter.” United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997).
In imposing this enhancement, the district court found that during a Fatico hearing, appellant
committed perjury by intentionally making materially false statements. We find no merit to his
argument that the statements were not material. As to his arguments that they were not false, the
district court’s credibility determination cannot be upended without more than appellant’s mere
assertions. The district court’s determination that Soto-Pena gave false testimony was not clear
error, and so we decline to disturb it. Accordingly, we affirm the district court’s decision to
apply the obstruction enhancement.

        Appellant also challenges the district court’s denial of credit for acceptance of
responsibility under U.S.S.G. § 3E1.1. The Guidelines indicate that an obstruction of justice
enhancement, like the one appellant received, “ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in
which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1, cmt. note 4.
“Ordinarily, a district court's decision not to grant a defendant a section 3E1.1 adjustment is
entitled to great deference on review. Whether the defendant has accepted responsibility is a
factual question, and [a] district court's determination in this regard should not be disturbed
unless it is without foundation.” United States v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (per
curiam) (internal citation and quotation marks omitted). The district court’s decision here was
well founded. Though appellant may have, as he argues, “cooperated and aided in the arrest of a
co-conspirator,” he also kept to himself significant testimony about another major drug dealer
with whom he dealt until he thought it benefitted him to reveal it. He also minimized his own
conduct, significantly downplaying to the government the number of previous drug transactions

                                                2
with which he had been involved. The district court’s determination that he “minimized up to the
very end” was not unwarranted on this record. Appellant provides no basis for us to disregard the
district court’s determination or to find it erroneous in any way. There was no error in the district
court’s denial of the credit for acceptance of responsibility.

       We have examined appellant’s remaining 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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