09-1857-cr(L)
United States v. Cuadrado (Cedeño)

                   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 2nd day of May, two thousand eleven.

PRESENT:    DENNIS JACOBS,
                           Chief Judge,
            GUIDO CALABRESI,
            DENNY CHIN,
                           Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

            -v.-                                      09-1857-cr(L),
                                                      09-1908-cr(con),
JORGE CEDEÑO, a/k/a MIGUEL, ANGEL                     09-1909-cr(con),
DIAZ, a/k/a PETE, RAFAEL RODRIGUEZ,                   09-2096-cr(con)
a/k/a DANCE, VICTOR DIAZ, a/k/a GAGO,
          Defendants-Appellants,
GERMAN CUADRADO, a/k/a GERALDO, JORGE
FLORES, JUAN CAMACHO, SAILE PARRA,
PLUTARCO ANGULO-AGUIRRE, a/k/a Matatan,
a/k/a Platano,
          Defendants.*
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      *
          Plutarco Angulo-Aguirre withdrew his appeal (No. 09-
3678-cr) on March 5, 2010.   The Clerk of Court is respectfully
instructed to amend the official case caption as shown above.
FOR DEFENDANTS-APPELLANTS:     CLINTON W. CALHOUN III, Calhoun &
                               Lawrence, LLP, White Plains, New
                               York, for Jorge Cedeño.

                               PAUL P. RINALDO, Grossman &
                               Rinaldo, Forest Hills, New York,
                               for Rafael Rodriguez.

                               RANDALL D. UNGER, Law Office of
                               Randall D. Unger, Bayside, New
                               York, for Angel Diaz.

                               RICHARD D. WILLSTATTER, Green &
                               Willstatter, White Plains, New
                               York, for Victor Diaz.

FOR APPELLEE:                  MICHAEL A. LEVY, Assistant United
                               States Attorney (Nola B. Heller,
                               Assistant United States Attorney,
                               on the brief) for Preet Bhahara,
                               United States Attorney for the
                               Southern District of New York,
                               New York, New York.

          Appeal from judgments of conviction entered in the

United States District Court for the Southern District of New

York (McMahon, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments are AFFIRMED.

          On April 28, 2009, following a month-long jury trial,

defendants-appellants Jorge Cedeño, Angel Diaz ("Angel"), and

Rafael Rodriguez were convicted of conspiracy, kidnapping, armed

robbery, and related crimes.   They now appeal their convictions,

alleging various pretrial and trial errors.    Their co-defendant

Victor Diaz ("Victor") appeals his conviction entered following

his guilty plea.   Cedeño, Angel, and Victor also challenge their

sentences.   We assume the parties' familiarity with the

underlying facts, procedural history, and issues presented for

review, and address the claims of each defendant in turn.


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     1.   Cedeño

          In 2007, Cedeño was charged with kidnapping, armed

robbery, conspiracy, and using a firearm in furtherance of a

crime of violence.   He argues on appeal that the trial court

admitted excessive evidence of uncharged criminal activity,

including evidence of conduct other than kidnapping and robbery

and crimes committed by co-conspirators outside the conspiracy.

Evidence of other crimes is properly admitted under Rule 404(b)

of the Federal Rules of Evidence if:     "(1) the prior acts

evidence was offered for a proper purpose; (2) the evidence was

relevant to a disputed issue; (3) the probative value of the

prior act evidence substantially outweighed the danger of its

unfair prejudice; and (4) the court administered an appropriate

limiting instruction."    United States v. Brand, 467 F.3d 179, 196

(2d Cir. 2006) (internal quotation marks omitted).

          The record reflects that the vast majority of the

disputed evidence -- testimony regarding events that did not

involve Cedeño -- came in as admissions by the government’s
witnesses of their own criminal activity.     The remaining evidence

Cedeño cites -- regarding incidents that did involve him -- were

relevant to establishing how the co-conspirators came to meet or

work with one another, and were thus properly offered for non-

propensity purposes.     United States v. Pipola, 83 F.3d 556, 566

(2d Cir. 1996).    Finally, the district court twice issued

appropriate limiting instructions to the jury.     We find no error

in the admission of this evidence.




                                  -3-
           Cedeño also challenges his sentence of 319 months'

imprisonment, arguing that the district court improperly enhanced

his sentence based upon uncharged conduct -- an armed robbery in

Pennsylvania -- in violation of his Fifth and Sixth Amendment

rights.   Because his challenge raises questions of law, our

review of the district court's application of the United States

Sentencing Guidelines (the "Guidelines") is de novo.    United

States v. Vasquez, 389 F.3d 65, 68 (2d Cir. 2004).

           We conclude that Cedeño's argument is foreclosed by our

recent decision in United States v. Robles, in which we held that

a sentencing enhancement predicated upon uncharged conduct is

constitutional if:   (1) the jury renders a general verdict that

does not establish which offense was the object of a multiple-

object conspiracy; (2) the sentencing court determines that

defendant's conduct was proven beyond a reasonable doubt; and

(3) the sentence imposed does not exceed the statutory maximum

for the count on which the defendant was convicted.    Robles, 562

F.3d 451, 455-57 (2d Cir. 2009) (citing U.S.S.G. §§ 1B1.2(d),
1B1.2 cmt. 4, 5G1.1).

          Here, the jury rendered a general verdict of guilty as

to Cedeño's kidnapping and armed robbery conspiracy counts.      We

note, however, that the Pennsylvania robbery was also

specifically mentioned in those counts in the superseding

indictment and "provided sufficient notice that [it] could be

considered [an object] of the conspiracy."   See id. at 456.
Judge McMahon then determined that the government had proved

beyond a reasonable doubt that Cedeño participated in the


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Pennsylvania robbery and that, by extension, the robbery was

another object of the overall conspiracy.    Finally, Cedeño's 319-

month sentence is below the statutory maximum authorized for the

crimes of conviction.    The statutory maximum for robbery and

conspiracy to commit robbery is twenty years' imprisonment, 18

U.S.C. § 1951(a), while the statutory maximum for both kidnapping

and conspiracy to commit kidnapping is life imprisonment, 18

U.S.C. § 1201(a), (c).    We find no error in the application of

the Guidelines, and affirm the sentence.
     2.   Rodriguez

          Rodriguez challenges Judge McMahon's denial of his

suppression motions as to (1) the guns and other evidence taken

from the trunk of a car in which he was a passenger; and (2) the

bulletproof vest he wore when he was arrested, as evidence

derived from an illegal Terry stop.    We review the district

court's factual findings for clear error and its legal

conclusions de novo.    United States v. Harrison, 606 F.3d 42, 44

(2d Cir. 2010).
          Rodriguez does not argue that the officers lacked

probable cause to search the trunk, but instead, that the

evidence from the trunk was the fruit of an illegal traffic stop.

The record establishes that no such stop occurred.    Testimony at

the suppression hearing established that the car was already

parked, its engine was turned off when the officers drove toward

the car, and Rodriguez had already exited the car.    See Brendlin

v. California, 551 U.S. 249, 257 (2007) ("A traffic stop

necessarily curtails [a driver and passenger’s travel], diverting


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both from the stream of traffic to the side of the road.").

Because no traffic stop occurred, Rodriguez’s challenge to the

admission of the evidence from the car trunk is without merit.

          Rodriguez next contends that a police detective then

committed an illegal Terry stop when he approached Rodriguez for

questioning, placed a hand on Rodriguez's shoulder to get his

attention, and said, "Hey, pal, can I talk to you for a second?"

At a suppression hearing, the detective testified that he

inadvertently felt a "hard, stiff . . . raised portion"

underneath Rodriguez’s clothing that he believed to be a

bulletproof vest.   The detective stated that based upon his

investigation of an earlier robbery-kidnapping, he had reason to

believe that the suspects might be armed and violent.

          We affirm the district court's conclusion that even if

a Terry stop had occurred, it was more than justified because the
officers by then had information from the cooperator and

corroboration from their ongoing investigation of the residence

to support "a reasonable suspicion that the individual [was, had

been, or was] about to be engaged in criminal activity."    United
States v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (citing

Terry v. Ohio, 392 U.S. 1 (1968)).    Accordingly, we affirm the

district court’s denials of the suppression motions.
     3.   Angel

          Angel, joined by Cedeño, argues that the district court

improperly charged the jury with respect to the firearm-

brandishing statute, 18 U.S.C. § 924(c), by stating that "[a]s a

matter of law, a gun is a firearm."   Defendants claim that this


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statement precluded the jury from making a factual determination

regarding an element of the offense.

            A jury instruction is erroneous if it "misleads the

jury as to the correct legal standard or does not adequately

inform the jury on the law."   United States v. Walsh, 194 F.3d

37, 52 (2d Cir. 1999) (internal quotation marks omitted).

Because neither defendant objected to the jury instruction below,

we review the instruction only for plain error.    United States v.

Feliciano, 223 F.3d 102, 114-15 (2d Cir. 2000).     Even assuming

there was error, if this Court finds beyond a reasonable doubt

that the jury would have returned the same verdict, the

conviction is sustained.   United States v. Gomez, 580 F.3d 94,
101 (2d Cir. 2009).

            Section 924(c) criminalizes the use or carrying of a

firearm during the commission of a crime of violence.     18 U.S.C.

§ 924(c).    Section 921(a)(3) defines "firearm" to include "any

weapon (including a starter gun) which will or is designed to or

may readily be converted to expel a projectile by the action of

an explosive."    18 U.S.C. § 921(a)(3).   Although Judge McMahon

provided the jury with a definition virtually identical to

§ 921(a)(3), her statement was inaccurate to the extent she was

suggesting that all guns are firearms.     We have previously

observed that "not all guns are firearms" because, for instance,

a BB gun is not a "firearm."   United States v. Rosa, 507 F.3d

142, 145 n.1, 156 (2d Cir. 2007).

            Any error in the instruction, however, was harmless.

Government cooperators and victims testified at trial regarding


                                 -7-
the use of guns during the robberies, and the government

introduced two revolvers recovered by police matching the color

and calibers described on the stand by police officers,

cooperators, and victims, along with evidence that the guns were

loaded with bullets.     The bullets that the police recovered were

also introduced as exhibits.     Because the weight of the trial

evidence bearing on this element was "overwhelming and

essentially uncontroverted" in this case, we conclude that any

error in the jury instruction was harmless.    See Gomez, 580 F.3d

at 100-01.
     4.      Victor

             Victor argues on appeal that the district court's

failure to infer a request for new counsel from his letter to the

court regarding difficulties communicating with his counsel in

Spanish and from his statements at a subsequent status

conference, as well as its failure to ask him whether he was

satisfied with his counsel, constituted a denial of new counsel.

Assuming, without deciding, that Victor did effectively request

substitution of counsel, we review for abuse of discretion.

United States v. Carreto, 583 F.3d 152, 158 (2d Cir. 2009).
             At a status conference on the matter (at which Victor

was provided a Spanish interpreter), Judge McMahon adequately

addressed each of Victor's concerns.     She adjourned Victor's

sentencing an additional thirty days, and secured a commitment

from his counsel to review his sentencing memorandum with him

through an interpreter in sufficient time for sentencing.     We

agree with the court's finding that new counsel was unnecessary


                                  -8-
because there was no indication of a "fundamental and insoluble

disagreement between client and attorney."    Accordingly, on this

record, we find no abuse of discretion.

            Victor also challenges his sentence, arguing that the

district court committed procedural error while making factual

findings at sentencing.   See United States v. Cavera, 550 F.3d

180, 187 (2d Cir. 2008) (en banc).     We review factual findings in

a sentencing for clear error.   Vasquez, 389 F.3d at 68.

            Victor argues that the district court erred in

referring to him as a "professional truck robber" when he had

only committed truck thefts; calling him a "fence" when he did

not habitually sell stolen goods to third parties; and denying

him a minor role adjustment.    Because his counsel failed to raise

the first two objections below, we apply the plain error

standard.   See United States v. Dorvee, 616 F.3d 174, 179-80 (2d
Cir. 2010).    Upon reviewing the record, we conclude that Judge

McMahon did not clearly err and that she relied upon a factually

accurate presentence report.    Assuming, arguendo, that her

characterizations of the victim as a "professional truck robber"

and "fence" were not technically or precisely accurate, they did

not substantially exaggerate the severity of his crimes.

Finally, Judge McMahon properly denied Victor a minor role
adjustment.    Accordingly, we find no procedural error in the

sentencing.
                             CONCLUSION

            In this appeal, Cedeño also alleges that the district

court erred in limiting cross-examination of a testifying victim,


                                 -9-
alleges that his § 924(c) indictment was duplicitous, and erred

in instructing the jury on § 924(c) "aiding and abetting"

liability.   Rodriguez raises an additional evidence-sufficiency

challenge pro se, and Angel also challenges the denial of his

severance motion and appeals from his sentence.   We have

considered all of the defendants' remaining arguments and find

them to be without merit.2   For the foregoing reasons,

defendants' convictions and sentences are hereby AFFIRMED.


                          FOR THE COURT:
                          CATHERINE O’HAGAN WOLFE, CLERK




     2
          Cedeño raises one additional argument, regarding
impeachment evidence, which we address separately in an opinion
also filed today.

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