     08-5404-cr
     United States v. Salcedo

                          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 Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 22 nd day of February, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               08-5404-cr
17
18       WASHINGTON SALCEDO, also known as
19       Primo,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       APPEARING FOR APPELLANT:               CHARLES F. WILSON, Nevins &
24                                              Nevins LLP, East Hartford,
25                                              Connecticut.
26
27       APPEARING FOR APPELLEE:                JOSEPH P. FACCIPONTI (Michael A.
28                                              Levy, on the brief), United


                                                  1
 1                              States Attorney’s Office for the
 2                              Southern District of New York,
 3                              for Preet Bharara, United States
 4                              Attorney for the Southern
 5                              District of New York, New York,
 6                              New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Batts, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Washington Salcedo challenges his conviction and his
16   sentence. We assume the parties’ familiarity with the
17   underlying facts, the procedural history, and the issues
18   presented for review.
19
20   [1] Salcedo argues that the district court erred by
21   failing to inform him that his guilty plea would waive his
22   right to compel the attendance of witnesses at trial.
23   Because Salcedo did not raise this issue in the district
24   court, our review is for plain error. Puckett v. United
25   States, 129 S. Ct. 1423, 1428-29 (2009). Plain error review
26   allows vacatur if the defendant proves: (1) error; (2) that
27   is “clear or obvious, rather than subject to reasonable
28   dispute”; (3) that affected substantial rights; and (4) that
29   “seriously affect[s] the fairness, integrity or public
30   reputation of judicial proceedings.” Id. at 1429 (internal
31   quotation marks omitted). In the context of a Rule 11
32   challenge, substantial rights are affected if there is “a
33   reasonable probability that, but for the error, [the
34   defendant] would not have entered the plea.” United States
35   v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
36
37        Salcedo has failed to prove, inter alia, that any error
38   affected his substantial rights. The government recovered
39   800 grams of heroin from Salcedo and his home on the day of
40   his arrest. The multiple witnesses who inculpated Salcedo
41   at the Fatico hearing would likely have done the same had
42   there been a trial. Cf. United States v. Torrellas, 455
43   F.3d 96 (2d Cir. 2006); see also Dominguez Benitez, 542 U.S.
44   at 85.
45
46   [2] Salcedo next argues that the district court erred by

                                  2
 1   failing to advise him that he could be held accountable for
 2   more than the one to three kilograms of heroin for which he
 3   admitted responsibility. Because Salcedo did not raise this
 4   issue in the district court, our review is for plain error.
 5   See Puckett, 129 S. Ct. at 1428-29.
 6
 7        Federal Rule of Criminal Procedure 11 requires a
 8   district court to ensure that a defendant seeking to plead
 9   guilty knows of and understands, inter alia, “any maximum
10   possible penalty, including imprisonment, fine, and term of
11   supervised release” that may result from the guilty plea;
12   “any mandatory minimum penalty” that may be imposed; and “in
13   determining a sentence, the court’s obligation to calculate
14   the applicable sentencing-guideline range and to consider
15   that range, possible departures under the Sentencing
16   guidelines, and other sentencing factors under 18 U.S.C.
17   § 3553(a).” See Fed. R. Crim. P. 11(b)(1)(H), (I), (M).
18   Here, the district court fulfilled all of these
19   requirements. Additionally, the district court advised
20   Salcedo that the final drug quantity to be attributed to him
21   would be determined by the court before sentencing.
22
23   [3] Finally, Salcedo argues that the district court abused
24   its discretion in disallowing him from calling a federal
25   prosecutor (who was prosecuting his case) as a witness. He
26   argues that the prosecutor’s testimony would have helped him
27   prove his eligibility to be sentenced under the safety-valve
28   statute. See 18 U.S.C. § 3553(f). But Salcedo was
29   ineligible for that relief regardless of the substance of
30   the prosecutor’s would-be testimony. Accordingly, any error
31   was harmless beyond a reasonable doubt. See United States
32   v. Arrous, 320 F.3d 355, 361 (2d Cir. 2003).
33
34        Finding no merit in Salcedo’s remaining arguments, we
35   hereby AFFIRM the judgment of the district court.
36
37
38                              FOR THE COURT:
39                              CATHERINE O’HAGAN WOLFE, CLERK
40
41
42
43




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