13-1625-cr (L)
United States v. Gabriel


                                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 27th day of April, two thousand fifteen.

PRESENT: RALPH K. WINTER,
                 JOHN M. WALKER, JR.,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                               13-1625-cr (L),
                                                                            13-1655-cr (CON)
LEONARDO GABRIEL, a/k/a Kendry Hernandez, a/k/a
Chique, a/k/a Chicki Ricki,
                                 Defendant-Appellant.
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FOR APPELLANT:                                   Andres Manuel Aranda, Esq., Bronx, New York.

FOR APPELLEE:                                    Jessica K. Fender, Brian A. Jacobs, Assistant
                                                 United States Attorneys, for Preet Bharara,
                                                 United States Attorney for the Southern District
                                                 of New York, New York, New York.




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

of New York (Robert W. Sweet, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 12, 2013, is AFFIRMED.

       Defendant Leonardo Gabriel stands convicted after guilty pleas to one count of

conspiracy to distribute and to possess with intent to distribute at least five kilograms of

cocaine, 50 grams of crack cocaine, and one kilogram of heroin, see 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), 846; and one count of conspiracy to distribute and to possess with

intent to distribute at least 500 grams of cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B),

846. Sentenced to a statutorily mandated 240-month prison term on the first conspiracy

based on the filing of a prior felony information, and a concurrent, mandated 60-month

prison term on the second conspiracy, Gabriel argues on appeal that the district court erred

in (1) failing to inquire whether he affirmed or denied his prior felony conviction, as

required by 21 U.S.C. § 851(b); and (2) finding facts in violation of Alleyne v. United

States, 133 S. Ct. 2151 (2013). 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.

       1.     Prior Felony Conviction

       Gabriel correctly notes the district court’s failure to follow procedures set forth in

21 U.S.C. § 851 for ascertaining whether he affirmed or denied the alleged prior felony

conviction. But as this court has recognized, a “[f]ailure to adhere to the letter of § 851’s

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procedures does not automatically invalidate the resulting sentence.” United States v.

Espinal, 634 F.3d 655, 665 (2d Cir. 2011).             Indeed, “there is no reason why

non-prejudicial errors in complying with the procedural requirements of § 851 should

require reversal.” Id.1 Gabriel demonstrates no such prejudice here.

       First, Gabriel has not disputed—either in the district court or on appeal—that he

was previously convicted of the underlying felony drug offense. See 21 U.S.C. § 851(b);

cf. United States v. Espinal, 634 F.3d at 666–67 (holding that defects in § 851 procedure

“potentially affected” court’s determination where, among other things, defendant might

have filed written response disputing prior conviction if procedures were followed and

court may have been unable to find, beyond a reasonable doubt, “that [defendant] was the

person convicted” of prior felony). Indeed, the fact of such conviction finds support in

(1) Gabriel’s signed cooperation agreement, wherein he agreed to affirm the 1998 felony

drug conviction at the time of his guilty plea; (2) Gabriel’s request for, and procurement of,

numerous sentencing adjournments in order to seek vacatur of that prior conviction in state

court (which he failed to achieve); and (3) Gabriel’s failure to dispute any facts contained

in the presentence report, which included the fact of his 1998 conviction for criminal

possession of a controlled substance in the second degree, or to contest the resulting

Guidelines calculation of a criminal history category of III, which was based in part on that

1
  Because Gabriel’s argument would fail whether reviewed for harmless error or plain
error, we need not decide which standard applies here. See United States v. Espinal, 634
F.3d at 665 n.7 (observing that “[s]ome of our sister circuits have held that only plain error
review is available where the defendant has not objected to § 851 procedural deficiencies
below,” but declining to decide which standard applies).

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prior conviction. Moreover, Gabriel could not challenge the validity (as opposed to the

fact) of his prior felony conviction because it occurred more than five years before the

filing of the prior felony information. See 21 U.S.C. § 851(e) (“No person who stands

convicted of an offense under this part may challenge the validity of any prior conviction

alleged under this section which occurred more than five years before the date of the

information alleging such prior conviction.”).

       Accordingly, we identify no reversible error in the district court’s failure to comply

with the procedures set forth in 21 U.S.C. § 851(b).

       2.     Judicial Fact-Finding

       Gabriel further contends that the district court increased his statutory minimum

sentence, pursuant to 21 U.S.C. § 841(b)(1)(A), on the basis of impermissible judicial

fact-finding about his prior conviction. We disagree. “[W]here a statute provides for an

enhanced penalty based on a defendant’s prior convictions, the fact of those convictions is

a sentencing factor to be determined by the court rather than a jury, and—as far as the

Constitution is concerned—sentencing factors can be proved to a judge at sentencing by a

preponderance of the evidence.” United States v. Espinal, 634 F.3d at 664 (internal

quotation marks omitted); see generally Almendarez-Torres v. United States, 523 U.S.

224, 239–47 (1998) (holding that, where statute provides enhanced penalty based on prior

conviction, fact of conviction is sentencing factor to be determined by court rather than by

jury). Alleyne v. United States, 133 S. Ct. 2151 (2013) is not to the contrary, because the

Supreme Court there declined to revisit Almendarez-Torres. See id. at 2160 n.1; accord

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United States v. Dantzler, 771 F.3d 137, 143 (2d Cir. 2014) (recognizing continued validity

of Almendarez-Torres following Alleyne). Here, as noted above, Gabriel did not dispute

the fact of his previous felony drug conviction. Accordingly, we identify no error in the

district court’s enhancement of Gabriel’s statutory minimum sentence—pursuant to 21

U.S.C. § 841(b)(1)(A)—on that basis.

      3.     Conclusion

      We have considered Gabriel’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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