     15-1842
     United States v. Mumuni

                         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 ASUMMARY 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   24th day of June, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   UNITED STATES OF AMERICA,
13            Appellee,
14
15                -v.-                                           15-1842
16
17   JIBRILLA MUMUNI,
18            Defendant-Appellant.
19
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21
22   FOR APPELLANT:                          MARK S. DeMARCO, Bronx, NY.
23
24   FOR APPELLEE:                           BRENDAN F. QUIGLEY (Rahul Mukhi,
25                                           Anna M. Skotko, on the brief),
26                                           Assistant United States Attorney,
27                                           for Preet Bharara, United States


                                                1
 1                                Attorney for the Southern District
 2                                of New York, New York, NY.
 3
 4        Appeal from a judgment of the United States District Court
 5   for the Southern District of New York (McMahon, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 8   DECREED that the judgment of the district court be AFFIRMED.
 9
10        Jibrilla Mumuni appeals from the judgment of the United
11   States District Court for the Southern District of New York
12   (McMahon, J.) convicting him of conspiracy to distribute and
13   possess with intent to distribute a kilogram or more of heroin.
14   Mumuni was sentenced principally to 71 months’ imprisonment.
15   Mumuni challenges: (i) the jury instructions, (ii) the
16   sufficiency of the evidence supporting his conviction, and
17   (iii) the reasonableness of his sentence. We assume the
18   parties’ familiarity with the underlying facts, the procedural
19   history, and the issues presented for review.

20        1. A defendant seeking vacatur based on an erroneous jury
21   instruction must demonstrate both error and prejudice. United
22   States v. Quinones, 511 F.3d 289, 313 (2d Cir. 2007). We review
23   de novo challenges to jury instructions and we will reverse
24   “only where the charge, viewed as a whole, either failed to
25   inform the jury adequately of the law or misled the jury about
26   the correct legal rule.” Id. at 314 (internal citation and
27   quotation marks omitted).

28        In United States v. Gaines, 457 F.3d 238 (2d Cir. 2006),
29   and United States v. Brutus, 505 F.3d 80 (2d Cir. 2007), we held
30   that a district court cannot instruct a jury that a defendant’s
31   interest in the outcome of the case creates a motive to testify
32   falsely. Brutus, 505 F.3d at 87; Gaines, 457 F.3d at 247. We
33   further held that a district court could, however, charge jurors
34   that a testifying criminal defendant does not assume any burden
35   of proof and they should evaluate the testimony of a testifying
36   defendant just as they would any interested witness. Brutus,
37   505 F.3d at 88 n.7; Gaines, 457 F.3d at 249 n.9.

38        Mumuni asserts that the district court erroneously charged
39   the jury to evaluate his testimony like that of any other witness

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 1   who had an interest in the outcome of the case. The district
 2   court’s charge closely adhered to the charge we explicitly
 3   approved in Gaines and Brutus. It informed the jurors that they
 4   should treat Mumuni’s testimony just as they would that of any
 5   interested witness, and that Mumuni took on no burden of proof
 6   by testifying. Critically, the district court did not instruct
 7   the jury that Mumuni, as an interested witness, had a motive
 8   to testify falsely. Accordingly, the challenged jury
 9   instruction was not erroneous.

10        2. A defendant challenging the sufficiency of the
11   evidence underlying his conviction at trial “bears a heavy
12   burden” because our standard of review is “exceedingly
13   deferential”: we “must view the evidence in the light most
14   favorable to the government, crediting every inference that
15   could have been drawn in the government’s favor,” and will
16   uphold the judgment if “any rational trier of fact could have
17   found the essential elements of the crime beyond a reasonable
18   doubt.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012)
19   (internal citations and quotation marks omitted).

20        The evidence presented at trial supports Mumuni’s
21   conviction of conspiracy to distribute over a kilogram of
22   heroin. An accomplice testified that Mumuni sold him heroin
23   on two occasions, each of which was recorded and photographed
24   by law enforcement agents, and Mumuni had extensive contacts
25   with others involved in the drug trafficking conspiracy. We
26   will not disturb the jury’s finding on grounds that the
27   cooperator was not credible, United States v. Glenn, 312 F.3d
28   58, 64 (2d Cir. 2002), or that Mumuni and his co-defendant were
29   acquitted on other counts, United States v. Acosta, 17 F.3d 538,
30   546 (2d Cir. 1994).

31        3. We review a sentence for procedural reasonableness
32   under a “deferential abuse-of-discretion standard.” Gall v.
33   United States, 552 U.S. 38, 41 (2007). That means a district
34   court’s application of the Sentencing Guidelines is reviewed
35   de novo and its factual findings are reviewed for clear error.
36   United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). A
37   sentence is procedurally unreasonable if the district court
38   “fails to calculate (or improperly calculates) the Sentencing
39   Guidelines range, treats the Sentencing Guidelines as

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 1   mandatory, fails to consider the § 3553(a) factors, selects a
 2   sentence based on clearly erroneous facts, or fails adequately
 3   to explain the chosen sentence.” United States v. Aldeen, 792
 4   F.3d 247, 251 (2d Cir. 2015) (quoting United States v. Chu, 714
 5   F.3d 742, 746 (2d Cir. 2013)).

 6        Mumuni fails to demonstrate any procedural error. In
 7   calculating Mumumi’s sentencing guidelines, the district court
 8   applied a two-point enhancement for obstruction of justice
 9   because it determined that Mumuni willfully had perjured
10   himself at trial with respect to a material matter. This
11   finding, which is not clearly erroneous, is a sufficient basis
12   for applying the obstruction of justice enhancement. United
13   States v. Salim, 549 F.3d 67, 73 (2d Cir. 2008).

14        Accordingly, and finding no merit in Mumuni’s other
15   arguments, we hereby AFFIRM the judgment of the district court.

16                                FOR THE COURT:
17                                CATHERINE O’HAGAN WOLFE, CLERK




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