     14-1941-cr
     United States v. Troncoso

                                     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
 2          At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 3   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 4   1st day of June two thousand seventeen.
 5
 6   Present:    JON O. NEWMAN,
 7               ROSEMARY S. POOLER,
 8               PETER W. HALL,
 9                           Circuit Judges.
10   _____________________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                               Appellee,
15
16                    v.                                                    14-1941-cr
17
18   JUAN PABLO MAMALEJO TRONCOSO,
19   AKA JUAN PABLO MAMALEJO-TRONCOSO,
20
21                     Defendant-Appellant.1
22   _____________________________________________________
23
24   Appearing for Appellant:           Bruce R. Bryan, Syracuse, NY.
25
26   Appearing for Appellee:            Frank Balsamello, Assistant United States Attorney (Karl Metzner,
27                                      Assistant United States Attorney, on the brief), for Joon H. Kim,
28                                      Acting United States Attorney, Southern District of New York,
29                                      New York, NY.
30


     1
         The Clerk of Court is respectfully directed to amend the caption as above.
 1          Appeal from the United States District Court for the Southern District of New York
 2   (Pauley, J.).
 3
 4        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of said District Court be and it hereby is MODIFIED and
 6   AFFIRMED as modified.
 7
 8           Defendant-Appellant Juan Pablo Mamalejo Troncoso appeals the judgment of conviction
 9   and sentence of 132 months’ imprisonment and five years’ supervised release entered May 28,
10   2014 by the United States District Court for the Southern District of New York (Pauley, J.).
11   Troncoso was convicted of conspiracy to commit Hobbs Act robbery, and of conspiracy to
12   distribute and possess with intent to distribute cocaine, in violation of 18 U.S.C. § 1951 and 21
13   U.S.C. §§ 841(a)(1) and 846. These charges resulted from a “reverse sting” operation in which a
14   government informant created the illusion that defendants would take part in a robbery of
15   significant quantities of cocaine, when in fact no illegal drugs were present and defendants
16   instead were led into the hands of federal agents. We assume the parties’ familiarity with the
17   underlying facts, the procedural history, and the issues presented for review.
18
19           “We review sentences using a ‘deferential abuse-of-discretion standard.’” United States
20   v. Bennett, 839 F.3d 153, 158 (2d Cir. 2016), as amended (Oct. 7, 2016) (quoting United States
21   v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)). “This review has both procedural and
22   substantive components.” Id. “First, we scrutinize whether the District Court has committed
23   ‘significant procedural error, such as failing to calculate (or improperly calculating) the
24   Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
25   selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
26   sentence. . . .’” Id. at 158-59 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
27
28           “Once we have determined that the sentence is procedurally sound, we then review the
29   substantive reasonableness of the sentence, reversing only when the trial court's sentence ‘cannot
30   be located within the range of permissible decisions.’” United States v. Dorvee, 616 F.3d 174,
31   179 (2d Cir. 2010) (quoting Cavera, 550 F.3d at 189). We have “likened our substantive review
32   to the consideration of a motion for a new criminal jury trial, which should be granted only when
33   the jury's verdict was ‘manifestly unjust,’ and to the determination of intentional torts by state
34   actors, which should be found only if the alleged tort ‘shocks the conscience.’” Id. at 183
35   (citations omitted).
36
37            Troncoso contends that the district court erred in making factual findings as to the
38   quantity of cocaine involved in the offense, and its value, and also in finding that he used a
39   firearm in connection with the offense. The district court’s finding that Troncoso conspired to
40   steal a quantity of forty kilograms of cocaine draws support from circumstantial record evidence
41   suggesting that defendants believed a significant quantity would be stolen, including the
42   warehouse target of the robbery and a co-conspirator’s statement that the robbery “is for us to
43   retire.” See Presentence Report ¶ 17. Moreover, the fact that a co-conspirator asked the
44   government agent whether forty kilograms would be in the warehouse suggests that such a
45   quantity had been contemplated by the conspirators. The district court made no error in
46   determining the cocaine’s potential value, as it conducted an evidentiary hearing and accepted


                                                     2
 1   only the lowest value estimate provided by the government’s witness. And the court did not
 2   commit clear error in finding that Troncoso possessed a firearm in connection with the offense,
 3   as Troncoso’s DNA was found on a firearm recovered from one of the cars brought to the
 4   robbery.
 5
 6           Troncoso argues that the district court erred in failing to reduce his guidelines range
 7   because he was a minor or minimal participant in the offense. “A sentencing court's assessment
 8   of the defendant's role in criminal activity is highly fact-specific and depends upon the nature of
 9   the defendant's relationship to other participants, the importance of the defendant's actions to the
10   success of the venture, and the defendant's awareness of the nature and scope of the criminal
11   enterprise.” United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993) (internal quotation marks
12   omitted). We discern no clear error in the court’s finding that his participation in the offense
13   mirrored that of some others, and we do not think his lack of participation in planning or
14   organizing the offense makes him, without more, entitled to this relief. See, e.g., United States v.
15   Garcia, 920 F.2d 153, 154-55 (2d Cir. 1990) (holding that drug courier was not entitled to minor
16   role reduction).
17
18           Troncoso also challenges the substantive reasonableness of his sentence. Given the nature
19   of the offense—particularly the involvement of a weapon—as well as the district court’s below-
20   Guidelines term of imprisonment, we cannot say that the sentence “cannot be located within the
21   range of permissible decisions.” Dorvee, 616 F.3d at 179.
22
23           Troncoso additionally seeks relief because of “sentencing factor manipulation and
24   sentencing entrapment,” Appellant’s Br. at 57-58. “Sentencing entrapment, a concept we have
25   said has not yet been recognized in this Circuit, would, if applicable, preclude a sentence where
26   outrageous official conduct has overcome the defendant’s will.” United States v. Cromitie, 727
27   F.3d 194, 226 (2d Cir. 2013) (internal quotation marks, citations, and brackets removed).
28   “Sentencing manipulation, which we have also not yet recognized, would, if applicable, [also]
29   require a showing of ‘outrageous’ misconduct.” Id. (internal citation omitted). In this case,
30   Troncoso presents no explanation of why the government’s conduct was “outrageous.” Even if
31   we were to adopt the doctrine, it would thus not apply here.
32
33          The parties agree that the district court’s order that the defendant forfeit $100,000 should
34   be eliminated for reasons including lack of factual basis in the record.
35
36           We have considered all of Troncoso’s additional arguments and determine them to be
37   without merit. The district court’s judgment is MODIFIED to eliminate the $100,000 forfeiture
38   order, and the judgment is AFFIRMED as modified.
39
40                                                         FOR THE COURT:
41                                                         Catherine O’Hagan Wolfe, Clerk
42
43




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