12-3758-cr
United States v. Santana

                           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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
29th day of January, two thousand fourteen.

PRESENT:         DEBRA ANN LIVINGSTON,
                 SUSAN L. CARNEY,
                                   Circuit Judges,
                 JOHN G. KOELTL,*
                                   District Judge.


UNITED STATES OF AMERICA,

                              Appellee,

        -v-                                                                No. 12-3758-cr

RAUL SANTANA,

                              Defendant-Appellant,

HIRAM J. TORRES, JOSE GONZALES,

                              Defendants.




        *
       The Honorable John G. Koeltl, of the United States District Court for the Southern District
of New York, sitting by designation.
                                               JESSE M. SIEGEL, Law Office of Jesse M. Siegel, New
                                               York, NY, for Defendant-Appellant.

                                               TODD W. BLANCHE (Michael A. Levy, on the brief),
                                               Assistant United States Attorneys, for Preet
                                               Bharara, United States Attorney for the Southern
                                               District of New York, New York, NY, for Appellee.


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Raul Santana appeals from a judgment of the United States District

Court for the Southern District of New York (Stein, J.), entered September 7, 2012. Santana was

convicted, after a jury trial, of one count of conspiracy to commit Hobbs Act robberies, in violation

of 18 U.S.C. § 1951; two counts of substantive Hobbs Act robbery for the March 20, 2010 and

March 25, 2010 robberies, also in violation of 18 U.S.C. § 1951; and two counts of use of a firearm

in furtherance of a crime of violence for each of the two charged robberies, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) and (c)(1)(C)(i). We assume the parties’ familiarity with the facts of the case and

the issues presented for appellate review.

                                                 I.

       First, Santana argues as to Count 4 that there was insufficient evidence to establish that he

possessed a firearm or aided and abetted the possession of a firearm by his coconspirator, Hiram

Torres, in connection with the March 20 robbery of Hector Flores. We review the sufficiency of the

evidence following a criminal conviction “in the light most favorable to the government, crediting

every inference that could have been drawn in the government’s favor.” United States v. Corsey,

723 F.3d 366, 373 (2d Cir. 2013) (internal quotation marks omitted). “A defendant challenging the

sufficiency of the evidence . . . bears a heavy burden because we must uphold the judgment of

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conviction if any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Vilar, 729 F.3d 62, 91 (2d Cir. 2013) (emphasis in original)

(internal quotation marks, citation, and alteration omitted).

       Under the applicable statute, a defendant committing a crime of violence will be additionally

punished if he “uses or carries a firearm” or, “in furtherance of any such crime, possesses a firearm.”

18 U.S.C.§ 924(c)(1)(A). The district court instructed the jury on three theories of § 924(c) liability:

(1) that Santana personally carried or possessed the firearm during the March 20 robbery; (2) that

he aided and abetted Torres as principal; and (3) that he entered a conspiracy in which it was

reasonably foreseeable that a gun would be used, and Torres used or possessed the firearm in

furtherance of that conspiracy – also known as Pinkerton liability. See Pinkerton v. United States,

328 U.S. 640 (1946). We conclude that the evidence was sufficient as to the second and third of

these theories, and do not reach the actual possession ground.

       First, regarding Santana’s liability for personally carrying or possessing a weapon on March

20, the evidence at trial was conflicted. Flores testified that both Santana and Torres had guns, while

Torres testified that only he was armed. Pursuant to our “exceedingly deferential” review at this

stage, however, see United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012), we are unable to

conclude that no reasonable jury could have credited Flores’s testimony that Santana himself was

armed. But we need not rely on this ground, because we find that the evidence sufficed under the

other two theories; therefore, we do not decide the question.

       The evidence was sufficient to establish that Santana aided and abetted Torres’s use of a

firearm during the March 20 robbery. See 18 U.S.C. § 2. Under this Circuit’s law, an accomplice




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can be convicted for aiding and abetting a violation of § 924(c) if there is “proof that he performed

some act that directly facilitated or encouraged the use or carrying of a firearm.” United States v.

Medina, 32 F.3d 40, 45 (2d Cir. 1994).1 It is insufficient that a defendant simply “know[] (or hav[e]

reason to know) that a gun will be used or carried in relation to the underlying crime . . . without

performing some affirmative act relating to that firearm.” Id. at 46. But in Medina, the defendant

was not present at the scene of the crime, and we made clear that “a defendant who is present but

unarmed during the commission of a crime may ([ ] by the division of labor) make it easier for

another to carry a firearm and therefore aid and abet that act.” Id. at 47.

       Here, the evidence showed that Santana actively facilitated Torres’s use of the firearm by

“division of labor.” Santana entered the apartment with Torres, helped to subdue Flores, and then

Santana guarded Flores while Torres stole untaxed cigarettes, marijuana, jewelry, and electronics.

Santana’s role exceeded the type of assistance to a gunman in a robbery that we have previously

found sufficient for an aiding and abetting conviction under § 924(c). See United States v. Gomez,

580 F.3d 94, 102-03 (2d Cir. 2009) (holding that there was sufficient evidence to convict an

accomplice who was “‘present’ as a lookout at the scene and [who] played a critical supportive role

in the armed robbery” by acting as a driver of a secondary vehicle).

       1
         The standard for aiding and abetting a violation of 18 U.S.C. § 924(c) is currently unsettled
among the federal circuits. Compare, e.g., United States v. Wiseman, 172 F.3d 1196, 1217 (10th
Cir. 1999), and United States v. Harrington, 108 F.3d 1460, 1471 (D.C. Cir. 1997) (holding that no
active facilitation of the principal’s use of the firearm is necessary for an aiding and abetting
conviction under § 924(c)), with, e.g., Medina, 32 F.3d at 45 (requiring some active involvement in
the principal’s use of the firearm for conviction on aiding and abetting). The Supreme Court has
granted certiorari to resolve this split of authority. See Rosemond v. United States, No. 12-895 (U.S.
argued Nov. 12, 2013). Rosemond’s outcome will not affect the result here because this Circuit
requires active facilitation or encouragement in order to establish aiding and abetting liability, which
imposes the strictest standard of proof on the government, and the trial court correctly instructed the
jury with that high standard.



                                                   4
        The evidence was also sufficient to establish Santana’s liability pursuant to Pinkerton

because Torres’s use of the firearm in violation of § 924(c) was an offense “committed by another

coconspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the

conspiratorial agreement.” United States v. Pimentel, 83 F.3d 55, 58 (2d Cir. 1996) (upholding a

§ 924(c) conviction under the Pinkerton theory). The jury found that Santana was guilty of

conspiring with Torres to rob Flores, and based on the prior robbery in which Santana participated

with Torres that involved the use of a firearm, it was reasonably foreseeable that Torres would use

a firearm in this case. Accordingly, Santana’s challenge to the sufficiency of the evidence fails.

                                                    II.

        Santana next asserts that the district court’s instruction to the jury regarding the jurisdictional

element of the Hobbs Act was erroneous. Because there was no objection at trial to this instruction,

we review only for plain error. See United States v. Bruno, 383 F.3d 65, 78 (2d Cir. 2004) (“Before

an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and

(3) that affects substantial rights.” (alteration and internal quotation marks omitted)). Convictions

under the Hobbs Act require that the government “prove, as an element, that a defendant’s conduct

affected interstate commerce,” although this effect “may be very slight.” United States v. Needham,

604 F.3d 673, 677-78 (2d Cir. 2010) (internal quotation marks omitted).

        Even assuming that the district court’s instruction was erroneous, Santana’s argument is

unavailing because his substantial rights were not affected. See Bruno, 383 F.3d at 79 (non-

structural error “affects a defendant’s substantial rights if it is prejudicial and it affected the outcome

of the district court proceedings” (internal quotation marks omitted)). The parties stipulated that the




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untaxed cigarettes stolen as part of the March 2010 robberies affected commerce as necessary for

Hobbs Act purposes. A jury instructed in the manner that Santana requests would necessarily have

found this element satisfied. Indeed, the stipulation regarding the untaxed cigarettes constitutes

uncontroverted proof on this issue – more evidence than was available in United States v. Needham,

where we upheld a conviction despite the lack of a jury finding regarding interstate commerce in a

Hobbs Act case. See 604 F.3d at 679-80 (concluding, despite “little or no direct evidence” on this

point, that a conspiracy to steal cocaine, heroin, and proceeds from the sale of these drugs

necessarily involved interstate commerce because these narcotics could not have been produced in

New York). Accordingly, Santana’s substantial rights were not affected.2

                                                  III.

        The last issue presented for our review concerns Santana’s seven-year sentence on Count 4,

which contained an enhancement for brandishing a firearm under 18 U.S.C. § 924(c)(1)(A)(ii). The

Supreme Court decided Alleyne v. United States after the Defendant-Appellant’s brief was filed in

this case, and held that a factor that increases a mandatory minimum sentence is an “element” of a

crime that must be found by a jury beyond a reasonable doubt under Apprendi v. New Jersey, 530

U.S. 466 (2000). Alleyne, 133 S. Ct. 2151, 2162-63 (2013). The district court correctly applied the



        2
          Santana also argues that the district court erred in instructing the jury that even a “minimal”
effect on interstate commerce is sufficient to satisfy this element of a Hobbs Act robbery charge.
As Santana concedes, however, the prior decisions of this Circuit clearly foreclose this argument.
See, e.g., United States v. Parkes, 497 F.3d 220, 230 (2d Cir. 2007) (“The Hobbs Act prohibits
robberies that affect interstate commerce in any way or degree, so the required showing of an effect
on interstate commerce is de minimis.” (internal quotation marks and citation omitted)); United
States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002). This panel is bound by well-established precedent
in this area and cannot reexamine these conclusions here.



                                                   6
law as it stood at the time of Santana’s trial and sentence, but our review must take the decision in

Alleyne into account. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule for the

conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct

review or not yet final.”); see also United States v. Gutierrez Rodriguez, 288 F.3d 472, 476 n.2 (2d

Cir. 2002).

       Errors “not brought to the court’s attention” are reviewed for plain error, Fed. R. Crim. P.

52(b), including in cases where a change in applicable law occurred after conviction, see Johnson

v. United States, 520 U.S. 461, 465-66 (1997).3 This principle holds for factors affecting a

defendant’s sentence that should have been submitted for a jury finding beyond a reasonable doubt,

but were not. See United States v. Joyner, 313 F.3d 40, 45-46 (2d Cir. 2002); United States v.

Thomas, 274 F.3d 655, 667-71 (2d Cir. 2001) (en banc).

       Our review for plain error has four components. The first three requirements are “(1) error,

(2) that is plain, and (3) that affects substantial rights.” Thomas, 274 F.3d at 667 (quoting Johnson,

520 U.S. at 466-67) (internal quotation marks and alteration omitted). If we find that these three

conditions are satisfied, the court “may then exercise its discretion to notice a forfeited error, but



       3
          As our Court noted in United States v. Needham, our Court has in the past “applied a
‘modified’ plain error analysis in cases ‘where, as here, the source of plain error is a supervening
decision,’” under which “the government, not the defendant, ‘bears the burden to demonstrate that
the error was harmless.’” 604 F.3d at 678 (quoting United States v. Henry, 325 F.3d 93, 100 (2d Cir.
2003)) (ellipsis in original omitted). This may not be the correct standard, however, in light of the
Supreme Court’s decision in Johnson v. United States, where the Court applied plain error review
where the error stemmed from a change in Supreme Court law decided after the defendant’s
conviction. See 520 U.S. at 466. We “need not resolve this open question because, whether plain
error or some modified approach is applied, our conclusions would be the same.” Needham, 604
F.3d at 678.



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only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (alteration omitted) (quoting Johnson, 520 U.S. at 467).

       As the government acknowledges in its brief, the first three prongs of plain error review are

generally satisfied where a defendant’s sentence enhancement is based on a fact that should have

been submitted to a jury. See, e.g., Joyner, 313 F.3d at 45-46. This proposition holds on the facts

of this case: In light of Alleyne, it was plainly an error that Santana’s sentence was increased based

on the brandishing of a firearm without a specific finding of this fact by a jury. Indeed, the

particular increase in mandatory minimum sentence for which the Alleyne Court required a jury

finding was the very one in question here – whether the defendant brandished a weapon in

furtherance of a Hobbs Act robbery. See 131 S. Ct. at 2155-56. Moreover, although this was not

a “structural error,” we assume that it was nonetheless “prejudicial and it affected the outcome of

the district court proceedings.” Bruno, 383 F.3d at 79.

       Even if these initial elements of plain error are satisfied, however, we conclude that the final

element – the question whether the error affects the fairness or public reputation of the judicial

proceeding – is not. Where the evidence supporting an element that was not submitted to the jury

is “‘overwhelming’ and ‘essentially uncontroverted,’” we will affirm despite the error. United States

v. Cotton, 535 U.S. 625, 633 (2002) (quoting Johnson, 520 U.S. at 470). In other words, “[w]e will

not reverse for plain error where there is no disagreement as to the truth of the pertinent facts, and

the record as a whole casts no doubt on the accuracy of that fact.” Joyner, 313 F.3d at 46 (internal

quotation marks and alteration in original omitted).




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        The evidence was uniform that Torres carried a weapon during the March 20 robbery, which

could support Santana’s guilt for brandishing the firearm either for aiding and abetting or under

Pinkerton. At trial, Torres testified that he had a gun “[i]n [his] hand” when he and Santana

threatened Flores during the March 20 robbery. Flores stated that when his assailants entered the

apartment during the first robbery, “each of them was carrying a gun,” and that, upon entering, “they

put a gun in [sic] my head and they direct me to the bathroom.”

        Under 18 U.S.C. § 924(c)(4), “brandish” is defined to mean “to display all or part of the

firearm, or otherwise make the presence of the firearm known to another person, in order to

intimidate that person, regardless of whether the firearm is directly visible to that person.” Santana

does not argue on appeal that Torres’s actions do not constitute brandishing under the statute. We

conclude that the evidence supporting Santana’s conviction for brandishing a firearm was

“overwhelming and essentially uncontroverted,” and as a result, the error here did not “seriously

affect[ ] the fairness, integrity, or public reputation of judicial proceedings.” Cotton, 535 U.S. at 633

(internal quotation marks omitted). Accordingly, we affirm Santana’s sentence on Count 4.

        We have considered all of Defendant-Appellant’s remaining arguments and find them to be

without merit. 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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