         09-0402-cr
         USA v. Henriquez (Urena)


                                   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 22 nd day of September, two thousand and
 5       ten.
 6
 7       PRESENT: ROGER J. MINER,
 8                PIERRE N. LEVAL,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-0402-cr
19
20       JOSE RAFAEL URENA,
21
22                                       Defendant-Appellant.
23
24
25
 1   FOR APPELLANT:      SETH L. HUTTNER, (James I. Glasser, on
 2                       the brief), Wiggin and Dana LLP, New
 3                       Haven, CT.
 4
 5   FOR APPELLEE:       JILLIAN B. BERMAN, Assistant United
 6                       States Attorney, (Daniel A. Braun, on the
 7                       brief), for Preet Bharara, United States
 8                       Attorney for the Southern District of New
 9                       York, New York, NY.
10
11        Appeal from the United States District Court for the
12   Southern District of New York (Castel, 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       Defendant-appellant Jose Urena appeals from a judgment

18   of the United States District Court for the Southern

19   District of New York (Castel, J.), convicting him of: (1)

20   one count of conspiracy to commit robbery of narcotics

21   traffickers, in violation of 18 U.S.C. § 1951 (“Count One”);

22   (2) one count of attempt to commit robbery of narcotics

23   traffickers, in violation of 18 U.S.C. § 1951 (“Count Two”);

24   and (3) one count of conspiracy to distribute and possess

25   with intent to distribute at least five kilograms of

26   cocaine, in violation of 21 U.S.C. § 846 (“Count Three”).

27   Urena was sentenced principally to a term of 162 months’

28   imprisonment, to be followed by five years’ supervised

29   release.    We assume the parties’ familiarity with the

                                    2
1    underlying facts, the procedural history, and the issues

2    presented for review.

3        Urena first contends that his convictions on Counts One

4    and Two should be vacated because the district judge did not

5    properly instruct the jury with regard to the interstate

6    commerce nexus that must be proven to support a conviction

7    under the Hobbs Act.    18 U.S.C. § 1951 (“Whoever in any way

8    or degree obstructs, delays, or affects commerce or the

9    movement of any article or commodity in commerce, by robbery

10   or extortion or attempts or conspires so to do” has

11   committed a crime.).    Specifically, he argues that the court

12   erred in providing the following instruction: “Congress

13   determined that all narcotics activity, even purely local

14   narcotics activity, has an effect on interstate commerce.

15   Thus, if you find that the object of the robbery was to

16   obtain narcotics, you may find this element satisfied.”     Tr.

17   at 757-58.   According to Urena, because our Court has since

18   “reject[ed] the proposition . . . that findings recited by

19   Congress in the [Controlled Substances Act] dispense with

20   the need for a jury finding that each element of the Hobbs

21   Act has been proven beyond a reasonable doubt,” United

22   States v. Parkes, 497 F.3d 220, 229 (2d Cir. 2007), his



                                    3
1    conviction must be vacated.

2        Because Urena failed to object to the jury instruction

3    at trial, we review only for plain error. 1     See United

4    States v. Middlemiss, 217 F.3d 112, 121 (2d Cir. 2000); Fed.

5    R. Crim. P. 52(b).   Here, even assuming that the      jury

6    instruction constitutes “error” that was “plain,” no remand

7    is warranted because the jury instruction did not affect

8    Urena’s “substantial rights.”       See United States v. Keigue,

9    318 F.3d 437, 442 (2d Cir. 2003) (noting that a plain error

10   “affects the substantial rights of a defendant if it is

11   prejudicial and affects the outcome of the district court

12   proceedings.” (internal quotation marks and alterations

13   omitted)).   There is no reason to conclude that the jury

14   instruction affected the outcome of the proceeding.       As our

15   Court recently observed, “[a] conspiracy that targets


         1
           In the past, our Court has adopted a “modified” plain
     error approach “where, as here, the source of plain error is
     a supervening decision.” United States v. Henry, 325 F.3d
     93, 100 (2d Cir. 2003). In that circumstance, we have
     required the Government, instead of the defendant, to
     demonstrate that the error was harmless. The viability of
     that standard is less than clear in light of the Supreme
     Court’s decision in Johnson v. United States, 520 U.S. 461
     (1997), as many panels have observed. See, e.g., United
     States v. Needham, 604 F.3d 673, 678 (2d Cir. 2010). Once
     again, however, we need not resolve this question — for
     “whether plain error or some modified approach is applied,
     our conclusions would be the same.” Id.

                                     4
1    cocaine and heroin, and the proceeds from their sale,

2    undoubtedly meets [the] standard” required to support a

3    Hobbs Act conviction.     United States v. Needham, 604 F.3d

4    673, 680 (2d Cir. 2010).     Because “[t]hese narcotics cannot

5    be produced in New York, and thus necessarily travel in

6    interstate commerce,” id., the jury would have found the

7    “minimal” interstate commerce requirement satisfied even

8    without the erroneous instruction.     United States v. Elias,

9    285 F.3d 183, 188 (2d Cir. 2002).

10       Urena next contends that the district court erred in

11   permitting two eyewitnesses to the July 4, 2005 robbery to

12   identify him at trial, because those in-court

13   identifications were necessarily tainted by ex ante out-of-

14   court identifications that the district court found to be

15   unduly suggestive.   That argument fails.    Where, as here, a

16   court concludes that an out-of-court identification

17   procedure was unduly suggestive, the court must go on to

18   determine whether the identification was nevertheless

19   independently reliable.     See Manson v. Brathwaite, 432 U.S.

20   98, 110-14 (1977).   To that end, the district court should

21   consider the totality of the circumstances through the lens

22   of those factors set forth in Neil v. Biggers.     409 U.S.


                                     5
1    188, 199-200 (1972).    Because we discern no error in the

2    district court’s Biggers analysis, and conclude in our

3    independent judgment that the identifications were

4    independently reliable, we reject Urena’s argument.

5         Finally, Urena maintains that the district court

6    clearly erred in imposing a sentence based on a drug

7    quantity of one hundred kilograms of cocaine or more — a

8    finding that yielded a Guidelines range of 292-365 months’

9    imprisonment.    But that argument is meritless.   The record

10   was more than sufficient for the court to conclude, based on

11   a preponderance of the evidence, that the reasonably

12   foreseeable quantity of drugs within the ambit of Urena’s

13   criminal conduct was at least one hundred kilograms.     Not

14   the least of such evidence was Urena’s own post-arrest

15   statement to police that he was engaged in a “hundred kilo

16   rip.” 2   Tr. 265.


          2
           Urena also contends that “the court failed to
     consider that the one hundred kilogram quantity was
     exclusively a government fabrication.” Br. at 44. We
     presume Urena to mean that the court should have afforded
     more weight to the fact that the attempted robbery of July 5
     was a reverse-sting operation orchestrated by government
     agents, and therefore the one hundred kilogram number was an
     artifice easily susceptible to inflation by the Government
     for the sole purpose of augmenting penalties at trial. We
     do not discount the possibility that, under some
     circumstances, such reverse-sting operations might present

                                    6
1       We have considered Urena’s remaining arguments and find

2   them to be without merit.   For the foregoing reasons, the

3   judgment of the district court is hereby AFFIRMED.

4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
9




    the possibility for such abuse. See, e.g., United States v.
    Panduro, 152 F. Supp. 2d 398, 403 (S.D.N.Y. 2001). Yet
    there is no indication of such abuse here; to be sure, the
    record demonstrates that Urena and his co-conspirators
    attempted to rob over one hundred kilograms or more of
    cocaine the day before the reverse-sting. And, in any
    event, there is no indication that the district court failed
    to consider the fact that the drug quantity was unilaterally
    set by the Government in this case.

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