16-1865-cr
United States v. Estevez

                                 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
29th day of May, two thousand eighteen.

PRESENT:           ROBERT D. SACK
                   PETER W. HALL,
                   CHRISTOPHER F. DRONEY,

                                      Circuit Judges.
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UNITED STATES OF AMERICA,

                                      Appellee,

                            v.                                                     No. 16-1865-cr

JIMMY ESTEVEZ, MIGUEL ESTEVEZ, AKA DOMI,
JOSUE ORTIZ, AKA SUA, ROBINSON CRUCETTS,
AKA ROBI, MARTIN RODRIGUEZ, WILLIAM
SUAREZ, AND IVAN ESTRADA,

                                      Defendants,

CARLOS GABRIEL ESTEVEZ,

                                      Defendant-Appellant.

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FOR APPELLANT:                                            Steven Y. Yurowitz, New York, New York.


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FOR APPELLEE:                                  Geoffrey M. Stone, Assistant United States Attorney,
                                               Sandra S. Glover, Assistant United States Attorney (on
                                               the brief) for John H. Durham, United States Attorney
                                               for the District of Connecticut, New Haven,
                                               Connecticut.

       Appeal from a judgment of the United States District Court for the District of

Connecticut (Shea, District Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Carlos Estevez (“Estevez”) was convicted by jury of conspiracy

to distribute and possess with intent to distribute more than one kilogram of heroin, in

violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(i), and substantive possession with intent to

distribute and distribution of more than one kilogram of heroin, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A)(i).   He argues on appeal that (1) the district court abused its discretion

in allowing the government to ask leading questions during direct examination of witnesses at

trial; (2) he received ineffective assistance of counsel because his trial counsel did not object

to those leading questions; (3) his rights under the Confrontation Clause were violated when

the district court did not permit his trial counsel to recross a witness; and (4) the district court’s

calculation of the amount of heroin attributable to him was erroneous.              We assume the

parties’ familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

       We ordinarily review the district court’s allowance of leading questions for abuse of

discretion.   United States v. Carboni, 204 F.3d 39, 45 (2d Cir. 2000).   However, where defense

counsel below did not object to questions as leading, the defendant’s claim is reviewed for

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plain error.   See United States v. Marcus, 628 F.3d 36, 41-42 (2d Cir. 2010).   We have held that

“the language of Federal Rule of Evidence 611(c) expressing a preference for non-leading

questions is only precatory and . . . generally trial judges are afforded a large degree of

discretion in overseeing the examination of witnesses.”         Sanders v. New York City Human

Resources Admin., 361 F.3d 749, 757-58 (2d Cir. 2004); accord United States v. Ajmal, 67 F.3d 12,

16 (2d Cir. 1995); United States v. DeFiore, 720 F.2d 757, 764 (2d Cir. 1983).      We have thus

demonstrated an “almost total unwillingness” to reverse for 611(c) infractions.         Ajmal, 67

F.3d at 16 (internal quotation marks omitted).

       Although the district court did allow some leading questions on direct, the testimony

about which the Appellant complains also came in through other means, and there was

otherwise sufficient evidence of guilt to sustain the jury’s verdict.       We do not reach the

question of whether plain error occurred because we see no abuse of discretion.       Carboni, 204

F.3d at 45.

       “We review the trial court’s restriction of cross-examination for an abuse of

discretion[.]” United States v. Vasquez, 82 F.3d 574, 576 (2d Cir. 1996). This is because “trial

judges retain wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns about, among other things . . .

interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986).    Even if we find that the district court has abused its broad discretion, we

will not reverse if error was harmless or “unimportant in relation to everything else the jury

considered on the issue in question.” Vasquez, 82 F.3d at 576 (quoting United States v. Rosa,

11 F.3d 315, 335 (2d Cir. 1993)).

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       Following the government’s redirect of Josh Cameron, a police officer for the Town

of Hamden, Connecticut, assigned to the DEA Task Force in New Haven, Connecticut, the

district court asked Estevez’s trial counsel what it was that had come up that was “so new” he

should allow recross.    App’x at 342.    Defense counsel responded with the subjects which

he would like to examine. He had already covered the first of his three proposed subjects.

The second was not substantively new or indeed particularly probative. The third could be

covered by another witness, to the extent it had not already been covered. We find no abuse

of discretion in the trial court’s decision to decline to allow repetitive or marginally relevant

recross examination.

       With respect to Estevez’s sentencing claim, “[w]hen addressing a claim that there was

insufficient evidence to support a district court’s drug quantity finding, we are mindful that

the district court has broad discretion to consider all relevant information, and the quantity

determination will not be disturbed unless it is clearly erroneous.”             United States v.

Richards, 302 F.3d 58, 70 (2d Cir. 2002) (internal quotation marks and citation omitted).    “A

finding is clearly erroneous when although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. Guang, 511 F.3d 110, 122 (2d Cir. 2007) (internal quotation

marks and citation omitted).       Quantities attributable to the defendant for purposes of

sentencing under the Guidelines must be established by a preponderance of the evidence.

United States v. Rios, 765 F.3d 133, 139 (2d Cir. 2014).

       The district court’s finding that the “quantity of heroin for which [Estevez] is

responsible under the Guidelines is 30 kilograms,” App’x at 875, is likely in error.

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       Although Ortiz initially estimated that he transported “about 30 kilograms” of heroin

for Estevez over the seven-month period that he was working for Estevez, more specific

testimony by Ortiz appears not to support that amount.      App’x at 553, 599.    Two areas of

Ortiz’s testimony allow for more specific estimates of the quantity of heroin he transported

and/or distributed for Estevez: (1) testimony regarding how frequently Ortiz transported

heroin from New York to Connecticut, and how much he transported per trip; and (2)

testimony regarding how frequently Ortiz distributed heroin to Estevez’s three (and

apparently, only) Connecticut customers, and how much he distributed to each per sale.

Regarding the first area, the testimony allows for an estimate of, at most, 16.75 kilograms of

heroin transported from New York to Connecticut.         Testimony regarding the second area

allows for an estimate of between 21 and 31.5 grams distributed to Estevez’s three Connecticut

customers.     Neither of these figures supports, by a preponderance of the evidence, Ortiz’s

30 kilogram estimate of the amount of heroin he transported for Estevez.

       We hold, however, that any error in the quantity calculation was harmless.      “Where

we identify procedural error in a sentence”—including miscalculation of the Guidelines

range—“but the record indicates clearly that ‘the district court would have imposed the same

sentence’ in any event, the error may be deemed harmless, avoiding the need to vacate the

sentence and to remand the case for resentencing.” United States v. Jass, 569 F.3d 47, 68 (2d

Cir. 2009) (quoting United States v. Cavera, 550 F.3d 180, 197 (2d Cir. 2008) (en banc)).   Our

review of the record here leads us to conclude that “the district court would have imposed the

same sentence” had it correctly calculated the quantity of heroin for which Estevez was

responsible.    Id.

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       Had the district court calculated the quantity as between 10 and 30 kilograms, the

resulting Guidelines range would have been 210 to 262 months, as opposed to the 262 to 327

months calculated by the district court.   Since the Guidelines range serves as the “the starting

point and initial benchmark” in arriving at the appropriate sentence, Gall v. United States, 552

U.S. 38, 49 (2007), an error that has such a significant impact on the Guidelines range would

ordinarily not be harmless.

       Here, however, the district court found that “a Guideline sentence would be

substantially greater than what is necessary” since: (1) Estevez had no criminal record; (2) there

is no evidence that Estevez would be unable to lead a law-abiding life; (3) Estevez will be

deported after he serves his sentence; and (4) due to Estevez’s immigration status, he will be

ineligible for release into a halfway house, and will therefore spend more time in custody.

App’x at 898–900, 906. After rejecting the Guidelines range, the district court turned to the

statutory mandatory minimum sentence of 10 years, and found that a mandatory minimum

sentence would be slightly too low in light of Estevez’s supervisory role.   Notably, the district

court did not mention the quantity of the drugs attributable to Estevez in imposing a sentence

six months above the mandatory minimum.          Since the district court rejected the Guidelines

range, turned instead to the mandatory minimum as a guidepost, and then considered only

Estevez’s leadership role in departing from the mandatory minimum, we are confident that

the district court would have imposed the same sentence had it calculated the quantity of

heroin attributable to Estevez as below 30 kilograms.

       Estevez also argues that he received ineffective assistance of counsel when his trial

counsel failed to object to leading questions on direct.        “When faced with a claim for

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ineffective assistance of counsel on direct appeal, we may: ‘(1) decline to hear the claim,

permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary

factfinding; or (3) decide the claim on the record before us.’”         United States v. Morris,

350 F.3d 32, 39 (2d Cir. 2003) (internal quotation marks omitted). The third course of action

is appropriate when the factual record is fully developed and resolution of the Sixth

Amendment claim on direct appeal is “beyond any doubt” or “in the interest of

justice.” United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003) (internal quotation marks

omitted). But we have expressed a “baseline aversion to resolving ineffectiveness claims on

direct review.” United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000). This aversion is due

in part to the reasoning that “the allegedly ineffective attorney should generally be given the

opportunity to explain the conduct at issue.” Khedr, 343 F.3d at 100. Consistent with this

precedent, we decline to decide Estevez’s claim for ineffective assistance of counsel here.

       We have considered all Estevez’s arguments and conclude that they are without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk of Court




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