       06-5840-cr (L)
       U.S. v. Torres-Teyer

 1                            UNITED STATES COURT OF APPEALS
 2                                FOR THE SECOND CIRCUIT

 3                                 SUMMARY ORDER
 4   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 5   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
 6   APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
 7   IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
 8   ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER
 9   MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

10     At a stated term of the United States Court of Appeals for the
11     Second Circuit, held at the Daniel Patrick Moynihan United States
12     Courthouse, 500 Pearl Street, in the City of New York, on the 7th
13     day of March, two thousand eleven.

14     PRESENT:
15                  RALPH K. WINTER,
16                  ROBERT D. SACK,

17                              Circuit Judges.
18
19                  BRIAN M. COGAN,

20                              District Judge.*

21     --------------------------------------
22      UNITED STATES OF AMERICA,

23                        Appellee,

24                   - v -                                    No. 06-5840-cr (L)
                                                              No. 07-0471-cr (con)
25      JORGE MANUEL TORRES-TEYER and
26      OSCAR MORENO AGUIRRE,

27                        Defendants-Appellants.

28     --------------------------------------




             *
               The Honorable Brian M. Cogan, United States District
       Court for the Eastern District of New York, sitting by
       designation.
 1   Appearing for Appellant
 2   Oscar Moreno Aguirre:         Robin C. Smith, Brooklyn, NY.

 3   Appearing for Appellant
 4   Jorge Manuel Torres-Teyer:    Jorge Manuel Torres-Teyer, pro se;
 5                                 Jonathan Edelstein, New York, NY
 6                                 (on supplemental briefing).

 7   Appearing for Appellee:       Anirudh Bansal, Katherine Polk
 8                                 Failla, Assistant United States
 9                                 Attorneys, New York, NY, for Preet
10                                 Bharara, United States Attorney for
11                                 the Southern District of New York.

12        Appeal from judgments of the United States District Court
13   for the Southern District of New York (Gerard E. Lynch, Judge).

14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
15   DECREED that the judgments be, and they hereby are, AFFIRMED.

16        On or about May 24, 2003, and June 9, 2003, respectively,
17   Jorge Manuel Torres-Teyer and Oscar Moreno Aguirre each pleaded
18   guilty to one count of conspiracy to import cocaine in violation
19   of 21 U.S.C. §§ 963, 952(a), and 960(b)(1)(B)(ii); one count of
20   conspiracy to distribute cocaine in violation of 21 U.S.C.
21   §§ 846, 841(a)(1), and 841(b)(1)(A); and one count of possession
22   of a firearm in furtherance of a drug trafficking crime in
23   violation of 18 U.S.C. § 924(c)(1)(A)(i). We assume the parties'
24   familiarity with the underlying facts of these cases and the
25   issues on appeal.

26        On May 4, 2004, the district court sentenced Torres-Teyer
27   principally to 396 months' imprisonment on the two narcotics
28   counts and 60 months' imprisonment on the firearm possession
29   count, to be served consecutively, for a total of 456 months'
30   imprisonment. See United States v. Torres Teyer, 322 F. Supp. 2d
31   359, 363-73 (2004). On the same day, the district court
32   sentenced Moreno Aguirre principally to 144 months' imprisonment
33   on the two narcotics counts and 60 months' imprisonment on the
34   firearm possession count, to be served consecutively, for a total
35   of 204 months' imprisonment. See id. at 378-84.

36        Moreno Aguirre and Torres-Teyer each appealed. Moreno
37   Aguirre challenged both his conviction and his sentence, while
38   Torres-Teyer appealed only his sentence. On appeal, we affirmed
39   Moreno Aguirre's conviction, but vacated and remanded both
40   sentences for further review by the district court in accordance
41   with United States v. Booker, 543 U.S. 220 (2005), and United

                                     2
 1   States v. Crosby, 397 F.3d 103 (2d Cir. 2005). See United States
 2   v. Magana, 147 F. App'x 200, 201-02 (2d Cir. 2005) (summary
 3   order).

 4        On remand, the district court declined to re-sentence
 5   Torres-Teyer, ruling that there was no basis for concluding that
 6   his sentence would have been different under a non-mandatory
 7   Guidelines regime. See United States v. Torres Teyer, No. 01 Cr.
 8   21 (GEL), 2006 WL 3511885, at *3-*11, 2006 U.S. Dist. LEXIS
 9   88150, at *10-*32 (S.D.N.Y. Dec. 6, 2006). The district court
10   determined, however, that resentencing for Moreno Aguirre was
11   required. See id. at *13-*15, 2006 U.S. Dist. LEXIS 88150, at
12   *37-*44.

13        After considering new, mitigating evidence concerning Moreno
14   Aguirre's diminished mental capacity, the district court
15   resentenced Moreno Aguirre on February 2, 2007, to the statutory
16   mandatory minima of 120 months' imprisonment on the two narcotics
17   counts and 60 months' imprisonment on the firearm possession
18   count, to be served consecutively, for a total of 180 months'
19   imprisonment.

20        Torres-Teyer and Moreno Aguirre again filed appeals.
21   Torres-Teyer initially proceeded pro se, while Moreno Aguirre was
22   represented by counsel. In 2007, counsel for Moreno Aguirre
23   moved to withdraw her representation pursuant to Anders v.
24   California, 386 U.S. 738 (1967), and the government cross-moved
25   for summary affirmance. On June 25, 2009, we denied both motions
26   and ordered full briefing. We specifically requested that the
27   parties address the effect of United States v. Williams, 558 F.3d
28   166 (2d Cir. 2009), abrogated by Abbott v. United States, 131 S.
29   Ct. 18 (2010), on the lawfulness of Moreno Aguirre's sentence.1

30        On January 20, 2010, we affirmed the sentence of a third co-
31   defendant, Victor Manuel Adan Carrasco, and reserved decision on
32   Torres-Teyer's and Moreno Aguirre's appeals. See United States
33   v. Carrasco, 361 F. App'x 230, 231 (2d Cir. 2010) (summary
34   order). By order of January 21, 2010, we stayed the two
35   remaining appeals pending resolution of the government's petition
36   for certiorari in Williams. We also appointed Torres-Teyer pro


          1
            In Williams, a panel of this Court held that "the
     mandatory minimum sentence under Section 924(c)(1)(A) is . . .
     inapplicable where the defendant is subject to a longer mandatory
     minimum sentence for a drug trafficking offense that is part of
     the same criminal transaction or set of operative facts as the
     firearm offense." Williams, 558 F.3d at 168.

                                     3
 1   bono counsel to assist him with any further briefing concerning
 2   the lawfulness of Torres-Teyer's consecutive sentence on his
 3   section 924(c) conviction.

 4        On November 29, 2010, the Supreme Court granted certiorari
 5   in Williams and vacated that judgment for further consideration
 6   in light of the Court's decision in Abbott v. United States, 131
 7   S. Ct. 18 (2010).2 See Williams v. United States, 131 S. Ct. 632
 8   (2010). On December 8, 2010, we lifted the stay of these appeals
 9   and directed supplemental letter briefing from the parties.

10        Upon reviewing the parties' supplemental submissions, and in
11   light of the Supreme Court's ruling in Abbott, we conclude that
12   the defendants' challenges to the mandatory consecutive sentences
13   imposed for their respective section 924(c) convictions are
14   without merit.

15        Moreno Aguirre, aside from arguing that he should not have
16   received a consecutive sentence for his section 924(c)
17   conviction, identifies no other error in the proceedings on
18   Crosby remand.

19        Torres-Teyer makes several arguments on appeal that are
20   unrelated to either the issue of consecutive sentencing under
21   section 924(c) or to the district court's decision not to re-
22   sentence him on Crosby remand. Torres-Teyer argues: (1) that the
23   government breached a plea agreement by seeking a two-level
24   sentence enhancement for obstruction of justice; (2) that his
25   extradition to the United States from Belize in 2002 was
26   unlawful; (3) that his guilty plea in 2003 lacked a sufficient
27   factual predicate with respect to the section 924(c) charge; and
28   (4) that the U.S. government unlawfully revoked his family
29   members' visas.

30        As a threshold matter, several of these arguments amount to
31   challenges to his underlying conviction. Insofar as those
32   arguments were not raised by Torres-Teyer in his previous appeal,
33   see Magana, 147 F. App'x at 201-02, they cannot be raised now.
34   See, e.g., Williams, 475 F.3d at 475; United States v. Quintieri,
35   306 F.3d 1217, 1229-30 (2d Cir. 2002), cert. denied, 539 U.S. 902
36   (2003); United States v. Ben Zvi, 242 F.3d 89, 95-96 (2d Cir.


          2
            In Abbott, the Supreme Court held, abrogating Williams,
     that "a defendant is subject to a mandatory, consecutive sentence
     for a § 924(c) conviction, and is not spared from that sentence
     by virtue of receiving a higher mandatory minimum on a different
     count of conviction." Abbott, 131 S. Ct. at 23.

                                     4
1   2001). To the extent that Torres-Teyer's arguments have not been
2   forfeited, we have considered them and conclude that they are
3   without merit.

4        For the foregoing reasons, the judgments of the District
5   Court are hereby AFFIRMED.

6                       FOR THE COURT:
7                       Catherine O'Hagan Wolfe, Clerk of Court

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