16-1158-cr
United States of America v. Jhon Jairo Cruz-Trejos

                               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
25th day of April, two thousand seventeen.

Present:         ROSEMARY S. POOLER,
                 RICHARD C. WESLEY,
                 SUSAN L. CARNEY,
                            Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                          v.                                                   16-1158-cr

JHON JAIRO CRUZ-TREJOS,

                                   Defendant-Appellant.1

_____________________________________________________

Appearing for Appellant:           Guy M. Oksenhendler, Forest Hills, NY.

Appearing for Appellee:            Emil J. Bove, III, Micah W.J. Smith, Assistant United States
                                   Attorneys, for Joon H. Kim, Acting United States Attorney for the
                                   Southern District of New York, New York, NY.



1
    The Clerk of Court is respectfully directed to amend the caption as above.
      Appeal from the United States District Court for the Southern District of New York
(Buchwald, J.).

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

         Defendant-Appellant Jhon Jairo Cruz-Trejos appeals the April 11, 2016 judgment of the
United States District Court for the Southern District of New York (Buchwald, J.). The district
court sentenced Cruz-Trejos to thirteen years of imprisonment, a five-year term of supervised
release, and a $300 special assessment fee after he pled guilty to (1) conspiracy to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 812, 952, 959, 960(b)(1)(B), 963;
(2) distribution of five or more kilograms of cocaine in violation of 21 U.S.C. §§ 812, 959(a),
960(b)(1)(B) and 18 U.S.C. § 2; and (3) conspiracy to use and possess machine guns during and
in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 924(o), 924(c)(1)(A)(i),
924(c)(1)(B)(ii), 3238. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        “Our review of criminal sentences includes both procedural and substantive components
and amounts to review for abuse of discretion.” United States v. McIntosh, 753 F.3d 388, 393-94
(2d Cir. 2014) (per curiam) (internal quotation marks omitted).

        Cruz-Trejos first challenges the procedural aspects of his sentence. “Procedural error
occurs in situations where, for instance, the district court miscalculates the Guidelines; treats
them as mandatory; does not adequately explain the sentence imposed; does not properly
consider the [Section] 3553(a) factors; bases its sentence on clearly erroneous facts; or deviates
from the Guidelines without explanation.” McIntosh, 753 F.3d at 394. Where a district court
imposes a sentence outside the advisory Guidelines range, “[t]he sentencing court’s statement of
reasons must at least explain—in enough detail to allow a reviewing court, the defendant, his or
her counsel, and members of the public to understand—why the considerations used as
justifications for the sentence are sufficiently compelling or present to the degree necessary to
support the sentence imposed.” United States v. Aldeen, 792 F.3d 247, 252 (2d Cir. 2015)
(internal quotation marks and brackets omitted). “A major departure should be supported by a
more significant justification than a minor one.” Id. (internal quotation marks and brackets
omitted).

         On appeal, Cruz-Trejos states that the district court “did everything correct procedurally”
but argues that it failed to provide sufficient explanation for its thirty-six month departure from
the Guidelines range. Appellant’s Br. at 14. This argument is meritless. At sentencing, the
district court explained that it had determined its sentence after considering the “seriousness of
the offense,” “deterrence,” and the “personal characteristics of [Cruz-Trejos].” App’x at 84.
Cruz-Trejos’s crimes were indeed serious, as he engaged in a complicated scheme that involved
trafficking cocaine to the United States and then using the drug proceeds to purchase assault
weapons for use by the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) and the
Ejército de Liberación Nacional (“ELN”), each of which has been designated as a foreign
terrorist organization by the Department of State since October 1997. Defense counsel argued
that Cruz-Trejos was not a sophisticated criminal, but the district court found that any “evidence


                                                 2
of a lack of sophistication” was “inconsistent with the amount of discussion about weaponry” as
well as with “the numerous negotiations that [Cruz-Trejos] was involved in over several years.”
App’x at 83. The district court also rejected Cruz-Trejos’s explanation that his criminal acts
flowed from financial problems, given that Cruz-Trejos could simply have sold his cocaine for
money instead of engaging in an international weapons-trading scheme. The district court thus
determined that the manner in which Cruz-Trejos engaged in trafficking five kilograms of
cocaine was more serious than a scheme involving only drugs and money. The district court
committed no procedural error. It explained its departure from the Guidelines in sufficient detail
to permit this Court, Cruz-Trejos, and the public to understand the factors that justified its
sentence. See Aldeen, 792 F.3d at 252.

         Cruz-Trejos also challenges the substantive reasonableness of his sentence. “We will set
aside a district court’s substantive determination as to an appropriate sentence only in
exceptional cases where the trial court’s decision cannot be located within the range of
permissible decisions.” McIntosh, 753 F.3d at 394 (internal quotation marks and emphasis
omitted). “In sum, [substantive reasonableness review] provide[s] a backstop for those few cases
that, although procedurally correct, would nonetheless damage the administration of justice
because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable
as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

        Cruz-Trejos does not challenge the government’s description of his scheme to traffic
large amounts of cocaine to the United States and to purchase numerous automatic assault
weapons for ELN and FARC. We hold that the district court’s addition of three years to Cruz-
Trejos’s ten-year mandatory minimum sentence for cocaine trafficking to account for his efforts
to acquire and sell one hundred automatic assault weapons to two known terrorist organizations
does not damage the administration of justice. Id. Nor does it strike this Court as shockingly
high. Id.

       We have considered the remainder of Cruz-Trejos’s arguments and find them to be
without merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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