13-3010-cr (L)
United States v. Bajana, Johnson
                                    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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of January, two thousand fifteen.

PRESENT: GERARD E. LYNCH,
         DENNY CHIN,
                       Circuit Judges,
         EDWARD R. KORMAN,
                       District Judge.*

———————————————————————

UNITED STATES OF AMERICA,

                                            Appellee,

                                   v.                                  Nos. 13-3010-cr
                                                                            13-4225-cr

NATHANIEL JOHNSON, AKA Sealed Defendant 17, AKA Sex Money,

                                            Defendant - Appellant,

ALBERTO BAJANA, AKA Sealed Defendant 12,

                                            Defendant - Appellant,

JUAN FERNANDEZ, AKA Tito, RAMON MORALES, AKA Sealed Defendant 2, AKA


*
 The Honorable Edward R. Korman, United States District Judge for the Eastern District
of New York, sitting by designation.
Seven, ODELL SCARBOROUGH, AKA Sealed Defendant 3, YEMALIA AYALA,
AKA Sealed Defendant 4, AKA Maggie, ANGEL ALICEA, AKA Sealed Defendant 5,
EMMANUEL MILLER, AKA Sealed Defendant 6, AKA Man, ROBERT RIVERA,
AKA Sealed Defendant 7, AKA Little Tito, EUGENE MILLER, AKA Sealed Defendant
8, AKA Gene, EDWARD BROWN, AKA Sealed Defendant 10, AKA Ed, JAMES
MILLER, AKA Sealed Defendant 11, AKA Popeye, MIGUEL OTERO, AKA Sealed
Defendant 13, AKA Buddah, BRYAN CUMMINGS, AKA Sealed Defendant 14, AKA
Dirt, JOSE VALDEZ, AKA Sealed Defendant 15, AKA Gordo, AKA Fat Man, DENNIS
SANDERS, AKA Sealed Defendant 16, KRISTOPHER MEADE, AKA Sealed
Defendant 18, AKA Kristopher Beade, ROLANDO MONTES, AKA Sealed Defendant
19, AKA Tes, RICKY WALKER, AKA Sealed Defendant 20, LAMONT ROBINSON,
AKA Sealed Defendant 10, AKA Slappy, AKA Snow,

                                   Defendants.

———————————————————————
FOR APPELLEE:                                     BRIAN A. JACOBS, Assistant United
                                                  States Attorney (Ryan P. Poscablo,
                                                  Assistant United States Attorney, of
                                                  counsel), for Preet Bharara, United
                                                  States Attorney for the Southern District
                                                  of New York, New York, New York.

FOR DEFENDANT-APPELLANT BAJANA:                   SAM A. SCHMIDT, Law Office of Sam
                                                  A. Schmidt, New York, New York.

FOR DEFENDANT-APPELLANT JOHNSON: Andrew H. Freifeld, Law Office of
                                 Andrew H. Freifeld, New York, New
                                 York.

       Appeal from the United States District Court for the Southern District of New

York (Jesse M. Furman, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that appellant Johnson’s appeal is DISMISSED insofar as he

challenges his sentence to prison and supervised release, and the judgments of the District

Court are otherwise AFFIRMED.




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       Defendants-Appellants Alberto Bajana and Nathaniel Johnson appeal from

judgments of the United States District Court for the Southern District of New York.

Bajana and Johnson were charged, along with eighteen other co-defendants, with offenses

including conspiracy to violate the narcotics laws of the United States, in violation of 21

U.S.C. § 846. Count One charged all defendants, including Bajana and Johnson, with

conspiracy to distribute, and to possess with intent to distribute, crack cocaine, in

violation of 21 U.S.C. § 841(b)(1)(A); cocaine, in violation of 21 U.S.C. § 841(b)(1)(C);

marijuana, in violation of 21 U.S.C. § 841(b)(1)(D); 3-4-

Methylenedioxymethamphetamine (“MDMA” or “ecstasy”), in violation of 21 U.S.C.

§§ 812, 841(a)(1) and 841(b)(1)(C); and oxycodone, in violation of 21 U.S.C. §§ 812,

841(a)(1), and 841(b)(1)(C). Neither Bajana nor Johnson was named in Count Two,

which charged six other defendants with possession of firearms in connection with Count

One.

       Johnson pled guilty, pursuant to a plea agreement, to the lesser-included offense of

conspiracy to distribute crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(C). He now

seeks to appeal both his conviction and his sentence. Bajana waived his right to a jury

trial and elected a bench trial, at the conclusion of which the district court found him

guilty of conspiracy to distribute only marijuana and MDMA, not the other drugs listed in

Count One. Bajana challenges his sentence as procedurally unreasonable. We assume

the parties’ familiarity with the underlying facts and the procedural history of the case.



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I. Johnson

       Johnson stipulated in his plea agreement to a Guidelines range of 24-30 months’

imprisonment; the district court sentenced him to 24 months. Johnson’s counsel has

moved to be relieved pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that

there are no non-frivolous arguments to raise on appeal, either with respect to Johnson’s

conviction or his sentence. The government moves to dismiss his appeal of his sentence

based on a provision in his plea agreement waiving his right to appeal any prison sentence

within the stipulated Guidelines range or term of supervised release that is less than or

equal to the statutory maximum. The government requests that the Court dismiss the

appeal of Johnson’s sentence in light of the appeal waiver, or, in the alternative, that the

judgment of conviction be summarily affirmed due to the absence of non-frivolous bases

for appeal.

       We have reviewed the record and counsel’s Anders brief, and we agree that there

are no non-frivolous issues to be raised on Johnson’s behalf, with respect to his

conviction or the special assessment imposed as part of his sentence (which are not

covered by the appeal waiver). Accordingly, his counsel’s Anders motion, the

government’s motion to dismiss his appeal of the terms of his sentence covered by his

appeal waiver, and the government’s motion for summary affirmance are GRANTED,

the appeal is DISMISSED as it relates to the terms of imprisonment and supervised

release, and the judgment of conviction is otherwise AFFIRMED.



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II. Bajana

       Bajana argues on appeal that the district court erred in: (1) applying an

enhancement for obstruction of justice in calculating his Guidelines range; and (2) its

calculation of drug quantity attributable to him. He argues that his sentence was therefore

procedurally unreasonable.

       Procedural error in sentencing occurs where a district court “fails to calculate the

Guidelines range . . . , makes a mistake in its Guidelines calculation, or treats the

Guidelines as mandatory. It also errs procedurally if it does not consider the § 3553(a)

factors, or rests its sentence on a clearly erroneous finding of fact.” United States v.

Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (internal citations omitted). We

therefore review the factual findings based on which the district court has determined the

Guidelines range for clear error, which occurs when “although there is evidence to

support [the court’s finding], the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985) (internal quotation marks omitted). A district

court must find disputed facts relevant to sentencing by a preponderance of the evidence.

United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005).

       Bajana argues that the testimony that formed the basis for the district court’s

imposition of the obstruction enhancement was not material to the proceeding in which it

was elicited, as it must be in order for an obstruction of justice enhancement to apply, see

United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997), but was instead material, at

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most, only to a separate proceeding (as Bajana would have us characterize his sentencing

proceeding). We need not decide whether the enhancement was appropriate here,

because any error committed by the district court was harmless. In imposing sentence,

the district judge explicitly stated that he would have imposed the same sentence even if

he had not found that an enhancement was warranted, because his sentence was based on

his assessment of the statutory sentencing factors, including Bajana’s culpability and role

in the offense as a whole, his relative culpability as compared to other defendants, and “a

sense of who Mr. Bajana is,” based on the record before the court.

       We find no clear error in the district court’s calculation of the quantity of MDMA

attributable to Bajana for sentencing purposes. The district court based its calculations on

testimony from a cooperator, which it was entitled to credit; on evidence from wire

intercepts; on the drug quantity data presented by both parties that it judged most reliable;

and on its finding as to what criminal activity Bajana jointly undertook as part of his

agreement to participate in the conspiracy. On the record before us, we see no basis for

disturbing the district court’s findings. Because we conclude that the district court did not

clearly err in calculating Bajana’s Guidelines range and that the sentence imposed was

not procedurally unreasonable, we AFFIRM the judgment of conviction as to Bajana.




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      For the foregoing reasons, Johnson’s appeal is DISMISSED insofar as it

challenges his sentence of imprisonment and supervised release, and the judgments of the

District Court are otherwise AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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