     11-807-cr
     United States v. Fallas

                          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.

 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 25th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    AMALYA L. KEARSE,
10                    PETER W. HALL
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       United States,
15                Appellee,
16
17                    -v.-                                               11-807-cr
18
19       Edgardo Arroyo; Pedro Delorbe, AKA
20       Compadre; Angelica Guevara, AKA Angie,
21                Defendants,
22
23       Ronald Fallas, AKA Danny,
24                Defendant-Appellant.
25       - - - - - - - - - - - - - - - - - - - -X
26
27       FOR DEFENDANT-APPELLANT:              Alice L. Fontier (Joshua L.
28                                             Dratel, on the brief), Law
29                                             Offices of Joshua L. Dratel,
30                                             P.C., New York, NY.
31



                                                  1
 1   FOR APPELLEE:              Glen A. Kopp (Christopher D.
 2                              Frey and John P. Collins, Jr.,
 3                              on the brief), Assistant United
 4                              States Attorneys for Preet
 5                              Bharara, United States Attorney
 6                              for the Southern District of New
 7                              York, New York, NY.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Southern District of New York (Preska, C.J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13   AND DECREED that the judgment of the District Court is
14   AFFIRMED.
15
16        Defendant-Appellant Ronald Fallas appeals his
17   conviction and sentence for conspiracy to distribute more
18   than five kilograms of cocaine. 21 U.S.C. §§ 841(a)(1),
19   846. He was sentenced principally to 180-months’
20   incarceration.
21   [1] Fallas argues there was insufficient evidence to show
22   beyond a reasonable doubt that the conspiracy that he was a
23   part of was to distribute more than five kilograms of
24   cocaine. A defendant challenging the sufficiency of the
25   evidence undertakes a “heavy burden,” United States v.
26   Gaskin, 364 F.3d 438, 459 (2d Cir. 2004) (internal quotation
27   marks omitted), because the standard of review is
28   “exceedingly deferential,” United States v. Hassan, 578 F.3d
29   108, 126 (2d Cir. 2008). A conviction must be affirmed
30   against a sufficiency-of-evidence challenge if “any rational
31   trier of fact could have found the essential elements of the
32   crime beyond a reasonable doubt.” Jackson v. Virginia, 443
33   U.S. 307, 319 (1979). In evaluating the sufficiency of the
34   evidence, “we must view the evidence in the light most
35   favorable to the government, crediting every inference that
36   could have been drawn in the government’s favor and
37   deferring to the jury’s assessment of witness credibility
38   and its assessment of the weight of the evidence.” United
39   States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008) (internal
40   citations, brackets, and quotation marks omitted).
41        The government presented sufficient evidence that the
42   conspiracy was to distribute, and possess with intent to
43   distribute, more than five kilograms of cocaine. One
44   witness testified to seeing Fallas sell two kilograms of

                                  2
 1   cocaine. Testimony also established that Fallas transported
 2   two kilograms of cocaine from El Paso to New York and,
 3   separately, that Fallas told a witness that he had
 4   transported at least nine kilograms of cocaine to New York.
 5   In addition, a witness testified that Fallas had discussed
 6   with him four additional kilograms of cocaine that Fallas
 7   was bringing into the country. And, one of Fallas’s
 8   couriers was arrested while in possession of two kilograms
 9   of cocaine. That evidence alone established that the
10   conspiracy was to distribute or possess with the intent to
11   distribute more than five kilograms of cocaine.
12        Fallas contends there was insufficient evidence to
13   support those findings. But the quantity of drugs need not
14   be shown only by the drugs actually seized. Instead, it can
15   be proven by “specific evidence,” such as “drug records,
16   admissions or live testimony.” Cf. United States v.
17   Shonubi, 998 F.2d 84, 89 (2d Cir. 1993) (indicating factors
18   applicable to calculating drug quantities for purposes of
19   imposing sentence). Here, there was sufficient evidence in
20   the form of testimony from Fallas’s co-conspirators.
21        Fallas argues that there is insufficient evidence that
22   the conspiracy actually distributed five kilograms of
23   cocaine. However, the success of the conspiracy is
24   irrelevant; what matters is the agreement. United States v.
25   Labat, 905 F.2d 18, 21 (2d Cir. 1990) (“Since the essence of
26   conspiracy is the agreement and not the commission of the
27   substantive offense that is its objective, the offense of
28   conspiracy may be established even if the collaborators do
29   not reach their goal.”); accord United States v. Tejada, 956
30   F.2d 1256, 1264 (2d Cir. 1992) (“Because the agreement
31   defines the conspiracy, the parties’ failure to complete the
32   transaction does not shrink the conspiracy’s scope.”).
33   [2] We generally review sentences for reasonableness under
34   the “deferential abuse-of-discretion standard.” Gall v.
35   United States, 552 U.S. 38, 41 (2007); accord United States
36   v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).
37   Reasonableness review has both a substantive and procedural
38   dimension. United States v. Whitley, 503 F.3d 74, 76 (2d
39   Cir. 2007).
40        Fallas’s offense was premised on a base-level offense
41   of 34 because the quantity of cocaine connected to him was
42   between 15 and 50 kilograms. See U.S.S.G. § 2D1.1(c)(3).
43   He claims that his sentence was procedurally unreasonable
44   because there was insufficient evidence to establish his
45   responsibility for that quantity of cocaine. See Gall, 552

                                  3
 1   U.S. at 51 (explaining possible bases for procedural
 2   unreasonableness, including reliance on clearly erroneous
 3   facts).
 4        As described above, sufficient evidence supported
 5   Fallas’s connection to and responsibility for more than 15
 6   kilograms of cocaine. Moreover, Fallas has not established
 7   that the district court relied on factual findings that were
 8   clearly erroneous. Accordingly, his procedural challenge to
 9   his sentence fails.
10        We have considered all of Fallas’s additional arguments
11   and find them to be without merit. Accordingly, the
12   judgment of the District Court is AFFIRMED.
13
14                              FOR THE COURT:
15                              Catherine O’Hagan Wolfe, Clerk
16
17




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