         09-0057-cr
         USA v. Torres (Nix)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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
 2       for the Second Circuit, held at the                          Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl                          Street, in the City of
 4       New York, on the 5 th day of October,                         two thousand and ten.
 5
 6       PRESENT: JON O. NEWMAN,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                           09-0057-cr; 09-1558-cr
18
19       CHARLES NIX, JAMAINE MINGO,
20
21                                       Defendants-Appellants. *
22
23
24



                 *
                 A third Defendant-Appellant originally named in this appeal, Sean
         Torres, has been granted an extension of time to respond to an Anders brief.
         Therefore, this third Appellant’s appeal, No. 09-0168, is hereby severed from
         the consolidated appeals of Defendants-Appellants Nix and Mingo, Nos. 09-0057
         and 09-1558, and No. 09-0168 will be decided by a new panel in the ordinary
         course upon the filing of additional papers as required by a summary order
         filed this day in 09-0168. The Clerk of the Court is directed to amend the
         official caption in this action to conform to the caption in this order.
 1   FOR APPELLANTS:      MICHAEL P. MANSION, Albany, NY (for Mr.
 2                        Nix); RICHARD L. MOTT, Albany, NY (for
 3                        Mr. Mingo).
 4
 5   FOR APPELLEE:        RICHARD S. HARTUNIAN, United States
 6                        Attorney for the Northern District of New
 7                        York, Albany, NY (Paul D. Silver and
 8                        Terrence M. Kelly, Assistant United
 9                        States Attorneys, of counsel).
10
11        Appeal from the United States District Court for
12   Northern District of New York (Scullin, J.).
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the district court be

16   AFFIRMED.

17       Appellants appeal from judgments of the United States

18   District Court for the Northern District of New York

19   (Scullin, J.).     All judgments discussed in this order arise

20   from the same underlying charge of conspiracy to distribute

21   cocaine and cocaine base in violation of 21 U.S.C. §§

22   841(a), 846.     Appellant Nix entered a guilty plea and was

23   sentenced, in contested part, to 240 months’ imprisonment.

24   Appellant Mingo was convicted following trial.     This Court

25   has jurisdiction to review both judgments under 28 U.S.C. §

26   1291.   We assume the parties’ familiarity with the

27   underlying facts, the procedural history, and the issues

28   presented for review.

29       Appellant Nix challenges his sentence of 240 months as

                                     2
1    excessive.     This challenge is without merit.    We review

2    sentencing decisions of lower courts under an abuse of

3    discretion standard.     United States v. Friedberg, 558 F.3d

4    131, 133 (2d Cir. 2009).     We have reviewed Appellant Nix’s

5    arguments for why he should be afforded a special downward

6    departure in sentencing, but do not find them sufficient to

7    warrant interference with the result below.       Judge Scullin

8    cannot be said to have abused his discretion in imposing the

9    statutorily required minimum sentence of 240 months.

10   Accordingly, we affirm the sentence imposed on Appellant

11   Nix.

12          Appellant Mingo challenges his conviction on two

13   grounds.     First, he contends that the evidence adduced at

14   trial was insufficient to support conviction.       Second, he

15   claims that the district court erred in failing to deliver

16   his preferred jury instruction concerning the so-called

17   “buyer-seller exception” to the law of conspiracy.       Both

18   challenges are without merit.

19          In a sufficiency challenge, we review the evidence

20   below in the light most favorable to the government,

21   construing all permissible inferences in the government’s

22   favor.     United States v. Reyes, 157 F.3d 949, 955 (2d Cir.



                                     3
1    1998).   Credibility determinations made by a jury must be

2    respected and in ordinary circumstances must not be replaced

3    by our own evaluations of the witness credibility.     United

4    States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000).

5    Accordingly, we decline to usurp the jury’s role in

6    determining credibility and conclude that the evidence

7    presented at trial was sufficient as a matter of law to

8    support conviction.

9        With respect to Appellant Mingo’s objection to the

10   district court’s instruction on the “buyer-seller

11   exception,” it is true that a buyer-seller relationship,

12   without more, is insufficient to establish a conspiracy.

13   United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998).

14   However, while the fact of a buyer-seller relationship does

15   not in itself establish that either party was a member of a

16   conspiracy, such a relationship “does not insulate a buyer

17   from a conspiracy charge ‘if the facts support such a

18   charge.’”   United States v. Rojas, No. 09-3007-cr, ___ F.3d

19   ___ (2d Cir. Aug. 12, 2010) (quoting United States v.

20   Parker, 554 F.3d 230, 232 (2d Cir. 2009)).   Here, additional

21   facts were adduced at trial beyond the existence of a buyer-

22   seller relationship between Appellant Mingo and other



                                   4
1    members of the underlying conspiracy.      Further, Judge

2    Scullin properly instructed the jury that, while they might

3    consider the existence of a buyer-seller relationship in

4    determining whether the defendant entered into a conspiracy,

5    such a relationship alone would not be sufficient to so

6    determine.   Cf. Rojas, ___ F.3d at ___.     Therefore, we find

7    that the instruction given the jury was not in error.

8        For the foregoing reasons, the judgments of the

9    district court are hereby AFFIRMED.

10
11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




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