08-2250-cr
United States v. Serrano




                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 4th day of March, two thousand and ten.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            ROBERT A. KATZMANN,
                        Circuit Judges,
_____________________________________________________

UNITED STATES OF AMERICA,
                                             Appellee,

                           -v-                                             08-2250-cr

MIGUEL ANGEL SERRANO, also known as Flavo,

                                             Defendant-Appellant.


Appearing for Appellant: Lawrence Gerzog, New York, NY.
Appearing for Appellee: Michael J. Garcia, United States Attorney for the Southern District of
      New York, Michael Farbiarz and Katherine Polk Failla, Assistant United States
      Attorneys, New York, NY.

       Appeal from the United States District Court for the Southern District of New York
(Swain, J.).


     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
        Miguel Angel Serrano challenges as procedurally unreasonable the seventy-month
sentence of imprisonment imposed upon him by the district court following his plea of guilty to
conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. We assume the parties’
familiarity with the facts, proceedings below, and specification of issues on appeal.

        Serrano contends that his sentence is procedurally unreasonable because the district court
failed to adjust his Guidelines range downward pursuant to U.S.S.G. § 3B1.2(b) based on the
minor role he claims to have played in the conspiracy. A Section 3B1.2 adjustment is
appropriate only if the defendant is “substantially less culpable than the average participant.”
U.S.S.G. § 3 B1.2 cmt. n.3(A). The defendant seeking the adjustment has the burden of proving
entitlement to it by the preponderance of the evidence. United States v. Yu, 285 F.3d 192, 200
(2d Cir. 2002). There was no error in the district court’s conclusion that Serrano failed to satisfy
this burden. It was Serrano who procured and drove the van in which the transaction took place,
and it was Serrano who showed the drugs to the prospective customer, a confidential informer.
The only other participant in the conspiracy arranged the deal with the customer, rode in the car,
and handed the drugs to the customer. Serrano also bragged to the customer that he had buyers
for large quantities of cocaine. While Serrano argues that the crime was completed before he
displayed the drugs, it certainly was not over in defendants’ minds because they had not yet been
paid. Therefore, both Serrano’s actions and his statement could reasonably be viewed as playing
a significant role in the successful completion of the crime, and the district court correctly
concluded that his role was not “substantially less culpable than the average participant” in a
two-person drug conspiracy. See United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001)
(internal quotation and emphasis omitted).

         Serrano also argues that vacatur is compelled because the district court failed to consider
Serrano’s relationship with his co-conspirator or his knowledge of the scope of the conspiracy as
required by Yu, 285 F.3d at 200. However, absent evidence to the contrary, we will assume the
district court’s understanding of the relevant factors and its consideration of them. See U.S. v.
Verkhoglyd, 516 F.3d 122, 131 (2d Cir. 2008) (in the context of Section 3553(a) sentencing
factors, concluding that “we will not assume a failure of consideration simply because a district
court rails to enumerate or discuss each Section 3553(a) factor individually.”) Further, our
reading of the sentencing colloquy is that the district court did consider all relevant factors albeit
without according them the labels set out in Yu.

       Therefore, we affirm the judgment of the district court.



                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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