07-1013-cr
United States v. Marte Robles


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                      _____________________

                                         August Term, 2008
(Argued: January 13, 2009                                             Decided: April 9, 2009)
                                      Docket No. 07-1013-cr (L)
                                      _____________________

                                     UNITED STATES OF AMERICA,

                                              Appellee,

                                                  v.

 FRANCISCO MARTE ROBLES, also known as CHICO, also known as JULIO APONTE,
       JOSE SALDANA, also known as EL PUERCO, HECTOR PENARANDA,

                                       Defendants-Appellants.

                                   ________________________________


BEFORE: HON. CHESTER J. STRAUB, HON. PETER W. HALL, Circuit Judges, and HON.
RICHARD K. EATON, Judge.*

                                   ________________________________


          Defendant-Appellant Francisco Marte Robles (“Marte”) appeals from a judgment of

conviction of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, entered

in the United States District Court for the Southern District of New York (Patterson, J.). We


          *
          The Honorable Richard K. Eaton, of the United States Court of International Trade,
sitting by designation.

                                                  1
review here Marte’s claim that the district court erred in calculating his Sentencing Guidelines

range when it enhanced his sentence based on its finding beyond a reasonable doubt that Marte

had conspired to commit offenses not specifically identified in the conspiracy count of the

indictment as objects of the conspiracy. We also review Marte’s claim that the district court

improperly enhanced his sentence in reliance on “the same conduct” as that of which he had been

acquitted. The Court finds no error. For the reasons stated herein and in an accompanying

summary order, the judgment of conviction and the sentence are AFFIRMED.


                             ________________________________

For Appellee:                         MARCUS A. ASNER , Assistant United States Attorney
                                      (Jonathan S. Kolodner, Assistant United States Attorney,
                                      on the brief), for Lev L. Dassin, Acting United States
                                      Attorney for the Southern District of New York, New York,
                                      New York.

For Defendants-Appellants:            LLOYD EPSTEIN , Epstein & Weil, New York, New York.

                                      PETER J. GUADAGNINO , Elizabeth, New Jersey.

                                      LAWRENCE K. FEITELL, New York, New York.

                             ________________________________

PER CURIAM:

       Defendant-Appellant Francisco Marte Robles (“Marte”) appeals from a March 8, 2007,

judgment by the United States District Court for the Southern District of New York (Patterson,

J.) convicting him of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951.

The district court sentenced Marte principally to a 78-month term of imprisonment. On appeal,

Marte claims: (1) the district court erred in admitting evidence of an uncharged bad act without



                                                 2
engaging in balancing under Fed. R. Evid. 403 and 404(b) and without providing a limiting

instruction; (2) the district court’s Hobbs Act jury instruction deprived him of his Sixth

Amendment right to have the jury decide the “interstate commerce” element of his crimes and;

(3) the district court erred in calculating his Sentencing Guidelines range when it enhanced his

sentence based on (a) its finding beyond a reasonable doubt that Marte had conspired to commit

offenses not specifically identified in the conspiracy count of the indictment as objects of the

conspiracy and (b) “the same conduct” as that of which he had been acquitted. We review here

Marte’s challenges to the district court’s determination of his sentence and find no error. We

address in a separate summary order Marte’s challenges to the court’s evidentiary ruling and jury

instructions. For the reasons stated herein and in the accompanying summary order, the

judgment of conviction and the sentence are AFFIRMED.



                                         BACKGROUND

        Defendant-Appellant Marte participated in a violent police-impersonation robbery crew

during the summer and fall of 2000. The robbery crew totaled approximately ten members, and

included Marte and Defendants-Appellants Hector Penaranda and Jose Saldana, whose

challenges on appeal are addressed in the accompanying summary order. The crew primarily

targeted people whom they believed were involved in narcotics trafficking because they supposed

that drug dealers would be more likely to have significant amounts of money and less likely to

report to the police.

        The superseding indictment filed on July 19, 2005, charged seven counts. Those relating

to Marte are as follows: (1) Count One charged Marte, Saldana, Penaranda, and three other


                                                 3
defendants with conspiracy to “commit [Hobbs Act] robberies of drug dealers in Manhattan and

the Bronx, New York . . . ,” in violation of 18 U.S.C. § 1951; (2) Count Two charged Marte and

Saldana with committing Hobbs Act robbery at 92 Pinehurst Avenue in Manhattan on July 25,

2000 (the “Pinehurst robbery”), in violation of 18 U.S.C. §§ 1951 and 2; (3) Count Three

charged Marte, Saldana, and two other defendants with committing Hobbs Act robbery at 654 W.

161st Street in Manhattan on July 27, 2000 (the “161st Street robbery”), in violation of 18 U.S.C.

§§ 1951 and 2; (4) Count Five charged Marte and Saldana with using, carrying, and possessing a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924

(c)(1)(A)(ii) and (2); and (5) Count Six charged Marte, Saldana, and two other defendants with

using, carrying, and possessing a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. §§ 924 (c)(1)(A)(ii) and (2). [Red 2, JA 18] The trial ended on June 26,

2006, when the jury found all four defendants guilty on Count One of the indictment. The jury

acquitted the defendants of the remaining substantive counts of the indictment.

       Notwithstanding the jury’s acquittal on the substantive charges, the district court found

for purposes of calculating Marte’s sentence for the conspiracy conviction that the Government

had proven beyond a reasonable doubt that he had conspired to commit the Pinehurst and 161st

Street robberies. The court, therefore, considered those robberies as offenses that were the object

of the Hobbs Act conspiracy and took them into account when determining Marte’s sentence.

The district court sentenced Marte principally to a 78-month term of imprisonment, within his

calculated Guidelines range.




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                                          DISCUSSION

       As relevant to this opinion, Marte raises several objections to his sentence. Marte’s

objections center on his claim that the district court erred when, in order to enhance his sentence,

it found beyond a reasonable doubt that the Pinehurst and 161st Street robberies were objects of

the conspiracy. First, Marte argues that the court erred in considering the robberies as objects of

the conspiracy because these robberies were not specifically identified as objects of the

conspiracy in the conspiracy count of the indictment. Marte contends that in considering the

robberies nevertheless, the court (1) misapplied the United States Sentencing Guidelines (the

“Guidelines”) and (2) violated his Sixth Amendment right to a jury trial.1 Second, Marte claims

that the district court violated his Sixth Amendment right to a jury trial when it considered the

robberies as objects of the conspiracy relevant to sentencing because—Marte asserts—the jury

had acquitted him “as to the same conduct.” Marte’s challenges present questions of law, which

this Court considers de novo. See United States v. Sanchez, 517 F.3d 651, 662 (2d Cir. 2008).

       A. Marte’s claim that the court may not consider the robberies as objects of the
conspiracy because the robberies were not identified as objects of the conspiracy in the
conspiracy count of the indictment

               1. Whether such consideration is a misapplication of the Sentencing Guidelines

       Marte contends that the Guidelines prohibit sentencing enhancements based on the

objects of a conspiracy unless those objects are specifically identified in the conspiracy count of

the indictment. He argues that although the Pinehurst and 161st Street robberies were charged as



       1
         Marte nominally claims that the district court’s consideration of the robberies as objects
of the conspiracy create Fifth Amendment problems as well. His arguments in this regard
essentially lie under the Sixth Amendment, however.


                                                 5
substantive offenses in the indictment, they were not specifically designated as the objects of the

conspiracy “in the conspiracy count” of the indictment. For that reason, the argument goes,

Application Note 4 of the Guidelines provision covering conspiracy convictions precludes the

judge from considering the undesignated robberies as objects of the conspiracy when calculating

the defendant’s offense level under § 1B1.2(d) of the United States Sentencing Guidelines. See

United States Sentencing Guidelines (“U.S.S.G.”) § 1B1.2(d) cmt. n. 4 (emphasis added).

       As we stated in United States v. Cavera:

       A district court should normally begin all sentencing proceedings by calculating, with
       the assistance of the Presentence Report, the applicable [Sentencing] Guidelines
       range. Gall [v. United States], 128 S. Ct. [586,] 596 [(2007).] . . . [T]he Guidelines
       provide the “starting point and the initial benchmark” for sentencing, Gall, 128 S. Ct.
       at 596, and district courts must “remain cognizant of them throughout the sentencing
       process,” id. at 596 n. 6.

550 F.3d 180, 189 (2d Cir. 2008) (en banc) (citation omitted). The Guidelines Application

Instructions dictate that the provisions of the Guidelines Manual are to be applied in a specific

order. U.S.S.G. § 1B1.1. A sentencing court must first “[d]etermine, pursuant to § 1B1.2

(Applicable Guidelines), the offense guideline section . . . applicable to the offense of

conviction.” Id. § 1B1.1(a). Guidelines § 1B1.2 provides, inter alia, that the court must “(a)

[d]etermine the offense guideline section in Chapter Two (Offense Conduct) . . .” and “(b) [a]fter

determining the appropriate offense guideline section . . . determine the applicable guideline

range in accordance with § 1B1.3 (Relevant Conduct).” Id. § 1B1.2(a)-(b).

       Significant to the appeal we decide here, § 1B1.2(d) states: “A conviction on a count

charging a conspiracy to commit more than one offense shall be treated as if the defendant had




                                                  6
been convicted on a separate count of conspiracy for each offense that the defendant conspired to

commit.” Id. § 1B1.2(d). Application Note 4 to U.S.S.G. § 1B1.2 comments that:

       Particular care must be taken in applying subsection (d) because there are cases
       in which the verdict or plea does not establish which offense(s) was the object of
       the conspiracy. In such cases, subsection (d) should only be applied with respect
       to an object offense alleged in the conspiracy count if the court, were it sitting as
       a trier of fact, would convict the defendant of conspiring to commit that object
       offense.

Id. § 1B1.2(d) cmt. n. 4.

       The Government argues that Marte’s position—that the above language requires any

object offenses the judge considers at sentencing to be specifically named as object offenses in

the conspiracy count of the indictment—is not mandated by the language of Application Note 4.

We agree.

       The construction of Application Note 4 places its emphasis not on the specificity of the

conspiracy charge but on the standard of proof that must be satisfied to permit a court to find that

a defendant conspired to commit particular object offenses and then to treat such findings as a

sentencing factor in determining the defendant’s offense level. This more rigorous standard of

proof is a protection for the defendant and is imposed because of the impact that the

determination of object offenses has on a defendant’s sentence. We have previously stated as

much, albeit in dicta, noting that: “As the Sentencing Commission made clear in promulgating

this application note . . . it was required because: ‘A higher standard of proof should govern the

creation of what is, in effect, a new count of conviction for the purposes of Chapter Three, Part D

(Multiple Counts).’” United States v. Macklin, 927 F.2d 1272, 1280 (2d Cir. 1991) (quoting




                                                  7
U.S.S.G. App. C. ¶ 75, at C. 36) (discussing then-U.S.S.G. § 1B1.2(d) cmt. n. 5, which contained

the same language as the current Application Note 4).

       Furthermore, the language of Application Note 4 appears to address itself to just such a

situation as the one we encounter here, recommending “particular care,” exercised in the form of

a higher standard of proof, in “cases in which the verdict . . . does not establish which offense(s)

was the object of the conspiracy.” U.S.S.G. § 1B1.2(d) cmt. n. 4. If Application Note 4 required

that the objects of a conspiracy be specifically named in the conspiracy count of an indictment, it

would be difficult to imagine the reason for this comment’s existence. A verdict of guilty on the

conspiracy count in such a situation would establish with precision the offenses a judge could

“permissibly” consider at sentencing, and there would be no occasion warranting the “particular

care” recommended by Application Note 4. Additionally, as the government points out, limiting

Section 1B1.2(d) in the way Marte suggests would conflict with the Guidelines precept that a

defendant should be liable for the full scope of his or her criminal activity, including “all acts and

omissions committed . . . by the defendant” as well as “all reasonably foreseeable acts and

omissions of others . . . that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or responsibility for

that offense.” Id. § 1B1.3 (a)(1).

       The indictment, moreover, provided sufficient notice that the Pinehurst and 161st Street

robberies could be considered as objects of the conspiracy. The indictment charged in Count

One that Marte and others “conspired to commit robberies of drug dealers in Manhattan and the

Bronx . . ..” This put Marte on notice of the nature of the objects of the charged

conspiracy—robberies of drug dealers in Manhattan and the Bronx—and the fact that there were


                                                  8
multiple objects, i.e., robberies in two different boroughs. In addition, Counts Two and Three of

the indictment charged that Marte participated in specific robberies of drug dealers in Manhattan,

one of which took place on Pinehurst Avenue and the other on W. 161st Street. Read as a whole,

the indictment gave Marte both broad and specific notice as to offenses that the court might

legitimately consider as objects of the conspiracy if it found beyond a reasonable doubt that

Marte had conspired to commit those offenses. By its verdict, the jury found Marte guilty of

having “conspired to commit robberies of drug dealers in Manhattan . . ..” The judge’s finding

beyond a reasonable doubt that Marte had specifically conspired to commit the Pinehurst and

161st Street robberies is not inconsistent with the jury verdict finding Marte guilty of having

conspired to commit multiple robberies of the very type planned for Pinehurst Avenue and W.

161st Street.

                2. Whether consideration of the robberies violates the Sixth Amendment

       To the extent Marte argues that the Sixth Amendment right to a jury trial requires the

objects of a conspiracy to be specifically named in the conspiracy count of the indictment in

order for the judge properly to consider those objects as relevant at sentencing, his argument is

unavailing. We have previously ruled that:

       So long as the facts found by the district court do not increase the sentence beyond
       the statutory maximum authorized by the verdict or trigger a mandatory minimum
       sentence not authorized by the verdict that simultaneously raises a corresponding
       maximum, the district court does not violate a defendant’s Fifth or Sixth Amendment
       rights by imposing a sentence based on facts not alleged in the indictment.

United States v. Sheikh, 433 F.3d 905, 906 (2d Cir. 2006) (where judge enhanced defendant’s

sentence based on a finding that defendant’s fraud “crimes resulted in a loss of more than

$400,000 but not more than $1,000,000” there was no constitutional violation because “although


                                                 9
the indictment did not allege a specific loss amount . . . that fact did not enhance the maximum

sentence to which [the defendant] was exposed”).

       In addition, this Court has specifically stated that a “sentencing court’s determinations on

the objects of a multi-object conspiracy do not constitute criminal verdicts, such that a

defendant’s Sixth Amendment rights are violated.” United States v. Malpeso, 115 F.3d 155, 168

(2d Cir. 1997) (emphasis added). This principle continues to stand in the context of U.S.S.G. §

1B1.2(d) even after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005). This is so because, regardless of any enhancements imposed in accordance with

U.S.S.G. § 1B1.2(d) based on the district court’s finding of multiple objects of a conspiracy,

U.S.S.G. § 5G1.1 prohibits the district court from imposing a sentence greater than the statutorily

authorized maximum sentence for the single conspiracy count on which the jury has found the

defendant guilty.2

       While Guidelines § 1B1.2(d) directs a court to treat a jury’s conviction on a count

charging a multiple-object conspiracy “as if the defendant had been convicted on a separate count



       2
           U.S.S.G. § 5G1.1 provides:

       Sentencing on a Single Count of Conviction[:]
       (a) Where the statutorily authorized maximum sentence is less than the minimum of
       the applicable guideline range, the statutorily authorized maximum sentence shall be
       the guideline sentence.
       (b) Where a statutorily required minimum sentence is greater than the maximum of
       the applicable guideline range, the statutorily required minimum sentence shall be the
       guideline sentence.
       (c) In any other case, the sentence may be imposed at any point within the applicable
       guideline range, provided that the sentence--
               (1) is not greater than the statutorily authorized maximum sentence, and
               (2) is not less than any statutorily required minimum sentence.


                                                 10
of conspiracy for each offense that the defendant conspired to commit,” id. § 1B1.2(d), this

direction exists solely for the purpose of enabling the court to calculate a defendant’s sentence

under the Guidelines. To put it another way, a court’s determinations (beyond a reasonable

doubt) that a defendant conspired to commit a certain number of object offenses remain

determinations of sentencing factors. Section 1B1.2(d) is merely the imprimatur to treat each of

those sentencing factors as a separate conspiracy conviction for purposes of determining a

sentence within the Guidelines framework. These so-called “new counts of conviction,” see

Macklin, 927 F.2d at 1280 (quoting U.S.S.G. App. C. ¶ 75, at C. 36), do not transcend the

Guidelines provision in § 5G1.1 such that a defendant could be exposed to a sentence above the

statutory maximum for the one count of conspiracy for which the jury found him or her guilty.

That being the case, there is no violation of such defendant’s Sixth Amendment right to a jury

trial.

       B. Marte’s claim that the court’s consideration of the robberies as objects of the
conspiracy violated his Sixth Amendment right to a jury trial because the jury had
acquitted him “as to the same conduct”

         Marte also argues that the district court may not enhance a defendant’s sentence based on

conduct the court has found the defendant committed when such finding is inconsistent with the

jury’s acquittal “as to the same conduct.” Essentially, Marte contends that because the jury

acquitted him of the substantive Pinehurst and 161st Street robbery charges, the district court

erred at sentencing when it considered those same robberies to be objects of the conspiracy.

Marte’s argument misses the point because the substantive commission of a robbery is not, in

fact, “the same conduct” as conspiring to commit that very same robbery. See Salinas v. United

States, 522 U.S. 52, 65 (1997) (“It is elementary that a conspiracy may exist and be punished


                                                11
whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the

public, and so punishable in itself.”); United States v. Jackson, 335 F.3d 170, 182 (2d Cir. 2003)

(“As in all conspiracy cases, the essence of the crime is what the conspirators agreed to do, rather

than what they actually did.”). The jury’s verdict standing for the fact that Marte failed to carry

out the substantive robberies, therefore, does not preclude the district court from finding beyond

a reasonable doubt that he conspired to commit those robberies. In accordance with Sentencing

Guidelines § 1B1.2(d), the district court properly enhanced Marte’s sentence based on its finding

that the Pinehurst and 161st Street robberies were objects of the overall conspiracy of which

Marte was convicted.



                                          CONCLUSION

       We have considered all of Marte’s arguments, and for the reasons stated herein and in an

accompanying summary order, we AFFIRM the judgment of the district court.




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