09-4847-cr
USA v. Solano (Cardoso)

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                              AMENDED SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day
of November, two thousand ten.

Present:
            ROGER J. MINER,
            ROBERT A. KATZMANN,
                        Circuit Judges,
            DENISE COTE,
                        District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

               Appellee,

                      v.                                           No. 09-4847-cr

NELSON SOLANO,

               Defendant,

CARMEN CARDOSO,

            Defendant-Appellant.
________________________________________________



       *
        The Honorable Denise Cote, United States District Judge for the Southern District of
New York, sitting by designation.
For Defendant-Appellant:                       SAM A. SCHMIDT , New York, NY

For Appellee:                                  JOCELYN E. STRAUBER, Assistant United States
                                               Attorney (Daniel A. Braun, Assistant United States
                                               Attorney, on the brief), for Preet Bharara, 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
(Patterson, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-appellant Carmen Cardoso appeals from an Amended Judgment entered

September 17, 2009 (Patterson, J.) sentencing her principally to 150 months’ imprisonment.

Cardoso was found guilty following a jury trial for (1) conspiring to import cocaine and heroin,

and (2) conspiring to distribute, and to possess with intent to distribute, cocaine and heroin. We

assume the parties’ familiarity with the facts and procedural history of this case.

       On appeal, Cardoso argues that the district court erred when it did not estop the

government from arguing that she was a supervisor or manager under section 3B1.1 of the

Sentencing Guidelines. She contends that the government should have been estopped because it

had taken the inconsistent position at her co-defendant Miguel Diaz’s sentencing that Diaz was

not a supervisor or manager and was therefore eligible for the statutory safety valve under 18

U.S.C. § 3553(f). To the extent that such a claim is viable, Cardoso’s argument is meritless. To

make out a judicial estoppel claim, a party must demonstrate, among other things, that the later

position of the party it seeks to estop is “clearly inconsistent with its earlier position.” Zedner v.

United States, 547 U.S. 489, 504 (2006) (quoting New Hampshire v. Maine, 532 U.S. 742, 750


                                                  -2-
(2001)). Here, there were two different defendants whose conduct differed significantly.

Moreover, in the one scheme in which the two were co-conspirators, Cardoso directed Diaz. The

government’s positions were not “clearly inconsistent.” See id. Therefore, the district court did

not err in failing to estop the government from arguing that Cardoso’s sentence should be

enhanced under U.S.S.G. § 3B1.1 due to her supervisory role.

       We have reviewed Cardoso’s remaining arguments and conclude that they lack merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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