         11-5019-cr
         USA v. Casimiro

                                      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 for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       16th day of December, two thousand thirteen.
 4
 5       PRESENT:
 6
 7             DEBRA ANN LIVINGSTON,
 8             GERARD E. LYNCH,
 9             RAYMOND J. LOHIER, Jr.,
10                                 Circuit Judges.
11       _______________________________________________
12       UNITED STATES OF AMERICA,
13
14                                         Appellee,

15                         -v.-                                                       No. 11-5019-cv
16
17       JOSE M. NUNEZ, PEDRO T. ROLFFOT, MANNY A. JIMENEZ,

18                                         Defendants,

19       RAFAEL CASIMIRO,

20                               Defendant-Appellant.
21       _______________________________________________

22                                                  JESSE M. SIEGEL, New York, for Defendant-
23                                                  Appellant.

24                                                  EDWARD Y. KIM, MICHAEL A. LEVY, Assistant United States
25                                                  Attorneys, for Preet Bharara, United States Attorney for the
26                                                  Southern District of New York, New York, NY, for Appellee.

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 1          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 2   that the judgment of the District Court is AFFIRMED.

 3          In a one-count Indictment filed on March 9, 2010, Defendant–Appellant Rafael Casimiro

 4   (“Casimiro”) was charged with conspiring to distribute, and possess with intent to distribute, 500

 5   grams or more of cocaine in violation of Title 21, United States Code, Section 846. Following a jury

 6   trial, Casimiro was convicted of the sole count in the Indictment. On November 14, 2011, Judge

 7   Buchwald conducted a Fatico hearing, see generally United States v. Fatico, 579 F.2d 707 (2d Cir.

 8   1978), at the conclusion of which she sentenced Casimiro to a term of 72 months’ imprisonment to

 9   be followed by five years’ supervised release, and a mandatary $100 special assessment. This

10   appeal followed.    We assume the parties’ familiarity with the underlying facts and procedural

11   history of the case, and with the issues on appeal.

12                                                *   *    *

13          On appeal, Casimiro does not challenge his conviction. Instead, Casimiro challenges only

14   his sentence on the grounds that it was procedurally unreasonable. Specifically, Casimiro asserts

15   that the district court’s finding of fact, crediting Giovani Gonzalez’s testimony and rejecting

16   Casimiro’s testimony at the Fatico hearing, led the Court erroneously to: (i) deny Casimiro safety-

17   valve relief pursuant to 18 U.S.C. § 3553(f); (ii) hold him responsible for between five and fifteen

18   kilograms of cocaine for purposes of calculating his base offense level pursuant to U.S.S.G. § 2D1.1;

19   and (iii) deny him credit for accepting responsibility pursuant to U.S.S.G. § 3E1.1. Casimiro argues

20   that the district court committed clear error when it credited Gonzalez’s testimony over his. Upon

21   a review of the record we find that the district court’s finding was amply supported by the evidence

22   and thus we find no clear error.


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 1          The district court need only find disputed facts relevant to sentencing determinations by a

 2   preponderance of the evidence. See United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005).

 3   We review a district court’s finding of facts made after a Fatico hearing for clear error. See United

 4   States v. Rubenstein, 403 F.3d 93, 99 (2d Cir. 2005). Clear error will be found only where ‘the

 5   reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has

 6   been committed.” United States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007) (internal quotation

 7   marks omitted). “‘Where there are two permissible views of the evidence, the factfinder’s choice

 8   between them cannot be clearly erroneous.’” United States v. Chalarca, 95 F.3d 239, 244 (2d Cir.

 9   1996) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). In particular, we

10   “give a district court’s findings as to the credibility of witnesses strong deference.” United States

11   v. McLean, 287 F.3d 127, 133 (2d Cir. 2002) (internal quotation marks omitted).

12          There was sufficient evidence in the record that we cannot say it was error, much less clear

13   error, for the district court to credit Gonzalez’s testimony over Casimiro’s testimony. As the district

14   court observed, Casimiro’s testimony was “internally inconsistent” while Gonzalez’s testimony was

15   “much more coherent.” For example, Casimiro claimed that prior to April 28, 2009, he had been

16   involved in only four drug deals, the last of which occurred nearly a year prior to the April 28, 2009

17   transaction. Yet, despite testifying that he had completed only four deals the last of which was

18   nearly a year earlier, Casimiro admitted that he had $36,000 in cash at his home on April 28, 2009.

19   Casimiro implausibly explained that he kept this money at home because he liked to have it with him

20   to use at clubs and on vacation, even though he admitted that he would only need “two, three

21   hundred bucks” at any given time for the purposes he mentioned. Casimiro then seemed to change

22   his story and explained that he held onto the cash in case Gonzalez offered him an opportunity to



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 1   participate in a new drug deal. The district court acted well within its discretion in concluding that

 2   the more plausible explanation for why Casimiro had so much cash on hand was, as Gonzales

 3   described, Casimiro was a more active drug dealer than he admitted. In contrast to Casimiro’s

 4   testimony, Gonzalez’s testimony–as the district court found–was “much more coherent.” This alone

 5   is sufficient for us to conclude that the district court’s finding was not clearly erroneous.

 6          In any event, where there are two possible views of the evidence and the result turns on the

 7   credibility of witnesses, we afford the district court strong deference. The district court’s decision

 8   to credit Gonzalez’s testimony and reject Casimiro’s testimony was supported by the record and we

 9   cannot say it was clearly erroneous. With this factual finding affirmed, there is no dispute that the

10   district court correctly denied Casimiro safety-valve relief, denied him credit for acceptance of

11   responsibility, and held him accountable for more than five kilograms of cocaine in calculating his

12   Guidelines offense level.

13          We have reviewed Casimiro’s remaining arguments and find them to be without merit. For

14   the foregoing reasons, the judgment of the District Court is AFFIRMED.

15                                                          FOR THE COURT:
16                                                          Catherine O’Hagan Wolfe, Clerk




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