06-0198-cr
U.S. v. Salazar


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                     _____________________

                                        August Term, 2006
    (Argued: March 21, 2007                                            Decided: June 13, 2007)
                                       Docket No. 06-0198-cr

                                     _____________________

                                 UNITED STATES OF AMERICA,
                                                       Appellee,

                                                -v.-

                                       JAIME A. SALAZAR,
                                                           Defendant-Appellant.
                                    _______________________

BEFORE:                  SACK, B.D. PARKER, HALL, Circuit Judges.

                                    _______________________

         Appeal from a final judgment of the United States District Court for the Southern District

of New York. Because district judges are required to apply a preponderance of the evidence

standard when finding facts relevant to Sentencing Guidelines calculations, the District Judge

committed no error in applying that standard. Affirmed.

                                   _________________________

                  J. SCOTT PORTER , Syracuse, NY, for Defendant-Appellant.

                  KATHERINE POLK FAILLA , Assistant United States Attorney (Michael J. Garcia,
                       United States Attorney for the Southern District of New York, Boyd M.
                       Johnson, Assistant United States Attorney, on the brief), New York, NY,
                       for Appellee.
                                  ________________________

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PER CURIAM:

       Defendant Jaime A. Salazar (“Salazar”) appeals from a final judgment of the United

States District Court for the Southern District of New York (Wood, J.) sentencing Salazar to 168

months’ imprisonment to be followed by five years’ supervised release and imposing a $100

special assessment. For the reasons that follow we affirm the judgment.

                                          I. Background

       In November 2000, Federal Bureau of Investigation (“FBI”) agents became aware of a

cocaine distribution conspiracy operating in the New York City area and began an investigation

of that conspiracy by conducting surveillance and intercepting conversations through the use of

court-ordered wiretaps. The agents learned, through wiretaps they had placed on telephones used

by Carlos Silverio and Roberto Rodriguez, that a large delivery of cocaine was about to take

place. They then established surveillance on Silverio and Rodriguez. The next day, the agents

observed Edwardo Suarez meet with Silverio and Rodriguez at Rodriguez’s apartment in the

Bronx and leave with a black bag. The agents stopped Suarez, recovered the bag—which

contained twenty kilograms of cocaine—and arrested him. Based on the wiretaps, the agents

determined that Salazar and Omar Lavado had, through their assistant, supplied that cocaine to

intermediaries Silverio and Rodriguez. The recorded conversations and surveillance yielded

evidence of Salazar’s role as a supplier in a conspiracy to traffic cocaine.

       An indictment filed September 25, 2001, charged Salazar with conspiring with others to

distribute and possess with intent to distribute forty-eight kilograms of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A). The indictment also charged sixteen other individuals in

addition to Salazar. Ten months later, Salazar pleaded guilty without a plea agreement before


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Magistrate Judge Peck who accepted Salazar’s guilty plea by written order. The Probation Office

prepared a Pre-sentence Investigation Report which recommended a Sentencing Guidelines range

of 121 to 151 months’ imprisonment based on a base offense level of thirty-four, a two-level

adjustment for acceptance of responsibility, and Salazar’s lack of a criminal history (placing him

in Criminal History Category I). The Probation Office stated that the information available did

not support any enhancement for Salazar’s role in the conspiracy. Prior to sentencing, the

Government urged a four-level enhancement under United States Sentencing Guideline

(“U.S.S.G.”) § 3B1.1(a) asserting that Salazar played a leadership role in an offense involving

five or more participants. Salazar opposed the enhancement. He testified that Lavado was the

true leader of the conspiracy and that his own participation was limited.

       The District Court held a Fatico hearing to resolve the extent of Salazar’s role in the

conspiracy. It determined by a preponderance of the evidence that Salazar was a “leader” under

§ 3B1.1(a), basing the finding on: (1) the credible testimony of law enforcement personnel; (2) a

drug ledger that revealed the scope of the conspiracy and the amount of drugs involved; and (3)

recorded conversations between Silverio and one of Salazar’s assistants and Silverio and Salazar.

       Judge Wood sentenced Salazar to 168 months’ imprisonment to be followed by five years

of supervised release and a special assessment of $100. The sentence was based on a base

offense level of thirty-four, an addition of four levels for Salazar’s leadership role, a three-level

reduction for acceptance of responsibility, and Criminal History Category I, which yielded a

range of 168 to 210 months’ imprisonment. Salazar appealed the sentence to this Court arguing

that the District Court erred in applying a preponderance of the evidence standard rather than

requiring proof beyond a reasonable doubt to find Salazar played a leadership role in the


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conspiracy. In December 2004, this Court affirmed the judgment but withheld its mandate as

United States v. Booker, 543 U.S. 220 (2005), was then pending before the Supreme Court.

Upon the Supreme Court’s decision in Booker and this Court’s decision in United States v.

Crosby, 397 F.3d 103 (2d Cir. 2005), we remanded for re-sentencing.

        In November 2005, the District Court conducted a Crosby re-sentencing hearing. After

reviewing the 18 U.S.C. § 3553(a) factors and hearing argument from both sides, Judge Wood

determined that she was “constrained” to apply a preponderance of the evidence standard in

determining for Guidelines purposes whether Salazar had a leadership role in the conspiracy and

that the previously imposed sentence was appropriate under Crosby. Salazar now appeals,

arguing only that the District Court erred as a matter of law in failing to recognize that, post-

Booker, while entitled to apply a preponderance of the evidence standard in determining

Salazar’s role in the conspiracy, the sentencing court had the discretion, if it so chose, to apply a

more stringent standard, including proof beyond a reasonable doubt.

                                           II. Discussion

       Before the implementation of the Guidelines, we required use of a preponderance of the

evidence standard because it properly balanced the defendant’s due process rights with the “long

history of judicial discretion in sentencing, the strong interest in judicial economy, and the fact

that already over-burdened trial courts would be greatly disserved by the time-consuming

hearings that would be constantly called for under any higher standard.” United States v. Lee,

818 F.2d 1052, 1057 (2d Cir. 1987). This requirement was reaffirmed under the Guidelines. See

United States v. Guerra, 888 F.2d 247, 251 (2d Cir. 1989). Thus, to succeed in his argument,

Salazar must overcome this Court’s seemingly dispositive statement in United States v. Vaughn,


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430 F.3d 518, 526 (2d Cir. 2005), that “district courts remain statutorily obliged to calculate

Guidelines ranges in the same manner as before Booker and to find facts relevant to sentencing

by a preponderance of the evidence.” Salazar argues that, despite our contrary pronouncement in

Vaughn, no statute expressly imposes a preponderance of the evidence standard and Booker

affords judges “the discretion to use a more stringent standard of proof should [they] so choose.”

We disagree.

       In Crosby, we explained that, notwithstanding Booker, because district courts remain

statutorily obliged under 18 U.S.C. § 3553(a) to “consider” the Guidelines, they remain

statutorily obliged to calculate a Guidelines range and to do so “in the same manner” as they did

pre-Booker. Crosby, 397 F.3d at 111-12. As we further explained in United States v. Garcia,

413 F.3d 201, 220 n.15 (2d Cir. 2005), and reiterated in Vaughn, the statutory requirement to

determine a Guidelines range, and do so in the same manner as before Booker, necessarily means

that facts relevant to sentencing must be found by a preponderance of the evidence. This is so

because the preponderance of the evidence standard prescribed by the Guidelines for resolving

disputed issues of fact relevant to sentencing was mandatory pre-Booker. See U.S.S.G. § 6A1.3

(commentary) (“The Commission believes that use of a preponderance of the evidence standard

is appropriate to meet due process requirements and policy concerns in resolving disputes

regarding application of the guidelines to the facts of a case.”); United States v. Cordoba-

Murgas, 233 F.3d 704, 708-09 (2d Cir. 2000) (holding that the preponderance of the evidence

standard is mandated by the Guidelines and drawing a distinction between the standard for

proving a fact relevant to sentencing and the weight such a fact should be accorded once proven).




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       In other words, the discretion afforded district judges by Booker applies only to their

consideration of a Guidelines range as one of the § 3553(a) factors after that range has been

calculated. Booker does not affect a district judge’s obligation to perform a Guidelines

calculation or the burden of proof applicable to facts relevant to sentencing upon which that

Guidelines calculation is made. See Crosby, 397 F.3d at 111-12; see also Guerra, 888 F.2d at

251; Lee, 818 F.2d at 1057. Here, the District Court’s determination that Salazar had a

leadership role in the cocaine conspiracy was a finding upon which the Guidelines calculation

was based. Because the above cited cases make it clear that Booker has no effect on the standard

of proof applicable to such fact-finding, we conclude that the district court was required to use

the preponderance of the evidence standard, as it did, in finding facts relevant to sentencing for

Guidelines calculation purposes.

                                         III. Conclusion

       For these reasons, the judgment of the District Court is affirmed.




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