         12-2510-cr
         United States v. Reyez-Nieto (Melendez)

                                 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 9th day of April, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                CHRISTOPHER F. DRONEY,
 8                         Circuit Judges,
 9                ALISON J. NATHAN,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                            Appellee,
17
18                      v.                                                          12-2510
19
20       GUILLERMO REYES-NIETO, AKA RAY,
21       AKA FLORENCIO REYES, RAMIRO REYES,
22       AKA CARLOS, ALEXIS JIMINEZ,
23       AKA ALEXIS MUNOZ-JIMENEZ, JUSTINE DURFEE,
24       EDGAR CORONA, AKA EDGAR A. CORONA,
25
26                                            Defendants,
27
28       ROBERTO MELENDEZ, AKA ROBERTO DIAZ,
29       AKA ROBERTO DIAZ-MELENDEZ,

                *
                The Honorable Alison J. Nathan, of the United States
         District Court for the Southern District of New York, sitting by
         designation.
 1                            Defendant-Appellant.**
 2
 3
 4   FOR APPELLANT:      Robert L. Sussman, Blodgett, Watts, Volk
 5                       & Sussman, P.C., Burlington, VT.
 6
 7   FOR APPELLEE:       Heather E. Ross, Assistant United States
 8                       Attorney, Gregory L. Waples, Assistant
 9                       United States Attorney, for Tristram J.
10                       Coffin, United States Attorney for the
11                       District of Vermont, Burlington, VT.
12
13        Appeal from the United States District Court for the
14   District of Vermont (Reiss, C.J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17   AND DECREED that the judgment of the United States District

18   Court for the District of Vermont is AFFIRMED.

19        Defendant-Appellant Roberto Diaz-Melendez1 (“Diaz-

20   Melendez”) appeals from a judgment by the United States

21   District Court for the District of Vermont (Reiss, C.J.)

22   sentencing him principally to 78 months’ imprisonment for

23   conspiring to distribute narcotics in violation of 21 U.S.C.

24   §§ 846 and 841 and conspiring to possess a firearm in

25   furtherance of a drug trafficking crime in violation of 18


          **
            The Clerk of Court is directed to amend the official
     caption to conform to the listing of the parties stated above.
          1
            Defendant-Appellant is variously referred to as Roberto
     Diaz-Melendez, Roberto Melendez-Diaz, Roberto Diaz and Roberto
     Melendez. Because both parties’ briefs identify Defendant-
     Appellant as Roberto Diaz-Melendez, for purposes of this appeal,
     so will we.

                                    2
1    U.S.C. § 924(o).    In reaching this sentence, the district

2    court departed downward from the 120-month statutory minimum

3    applicable in this case pursuant to the Government’s motion

4    under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.    We assume

5    the parties’ familiarity with the underlying facts, the

6    procedural history, and the issues presented for review.

7        Diaz-Melendez argues that the district court erred by

8    refusing to grant a further downward departure on the basis

9    of his extraordinary rehabilitation.    We disagree.     The Pre-

10   Sentence Report identified a Guidelines range of 78-97

11   months.   However, because Diaz-Melendez was subject to a

12   statutory mandatory minimum, the Guidelines sentence became

13   120 months.    The district court had “[l]imited authority” to

14   depart below the Guidelines range on the basis of the

15   Government’s motion pursuant to Section 3553(e).       18 U.S.C.

16   § 3553(e).    “When, as here, the Guidelines sentence ends up

17   as the statutory minimum, both the decision to depart and

18   the maximum permissible extent of this departure below the

19   statutory minimum may be based only on substantial

20   assistance to the government and on no other mitigating

21   considerations.”    United States v. Richardson, 521 F.3d 149,

22   159 (2d Cir. 2008) (citing 18 U.S.C. § 3553(e)); see also

23   United States v. Williams, 551 F.3d 182, 186-87 (2d Cir.

24   2009).

                                    3
1        The district court properly refused to depart downward

2    on the basis of Diaz-Melendez’s post-arrest rehabilitation,

3    which, we note, the district court deemed not to be

4    extraordinary given that Diaz-Melendez tested positive for

5    cocaine on one occasion while under pre-trial supervision.

6    Likewise, the district court separately analyzed the other

7    grounds for downward departure argued by Diaz-Melendez,

8    including family ties, employment record, and totality of

9    the circumstances, and found that they lacked merit based

10   upon its consideration of the factors under 18 U.S.C. §

11   3553(a).

12       For the foregoing reasons, the judgment of the district
13
14   court is hereby AFFIRMED.
15
16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18

19

20




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