     16-1112-cr
     United States v. Santillan
 1
 2                                UNITED STATES COURT OF APPEALS
 3                                    FOR THE SECOND CIRCUIT
 4
 5                                       SUMMARY ORDER
 6
 7   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 8   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 9   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
10   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
11   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
12   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
13   COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
14
15          At a stated term of the United States Court of Appeals for the Second Circuit, held
16   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
17   York, on the 24th day of August, two thousand eighteen.
18
19   PRESENT:         JOHN M. WALKER, JR.,
20                    ROSEMARY S. POOLER,
21                                Circuit Judges,
22                    GEOFFREY W. CRAWFORD,
23                                District Judge.∗
24
25
26   UNITED STATES OF AMERICA,
27                     Appellee,                              16-1112-cr
28
29                                v.
30
31   HECTOR SANTILLAN (AKA “BANE”),
32                     Defendant-Appellant,
33




     ∗ Judge Geoffrey W. Crawford, of the United States District Court for the District of Vermont,
     sitting by designation.


                                                     1
 1   JUNIOR RIVERA-VASQUEZ,
 2                     Defendant. ∗∗
 3
 4
 5
 6   FOR APPELLEE:                                            KRISTY J. GREENBERG, Assistant
 7                                                            United States Attorney (Noah
 8                                                            Solowiejczyk,     Michael    Ferrara,
 9                                                            Assistant United States Attorneys, on
10                                                            the brief), for Geoffrey S. Berman,
11                                                            United States Attorney for the
12                                                            Southern District of New York, New
13                                                            York, NY.
14
15   FOR DEFENDANT-APPELLANT:                                 MICHELLE ANDERSON BARTH, Law
16                                                            Office of Michelle Anderson Barth,
17                                                            Burlington, VT.
18
19                                                            Hector Santillan, Ayer, MA, pro se.
20
21             Appeal from a judgment of the United States District Court for the Southern

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

23             UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

24   ADJUDGED, AND DECREED that the district court’s judgment of conviction and

25   sentence is AFFIRMED.

26             Defendant-Appellant Hector Santillan appeals from a judgment of conviction and

27   sentence entered on March 28, 2016, after a jury found him guilty of participating in a

28   conspiracy to distribute or possess with intent to distribute heroin, oxycodone, and

29   cocaine, and distributing and possessing with intent to distribute 500 grams or more of

30   cocaine. The district court sentenced Santillan principally to 151 months’ imprisonment.




     ∗∗   The Clerk of Court is directed to amend the caption to conform to the above.


                                                       2
 1          On appeal, Santillan argues that we should vacate his conviction and sentence

 2   because the district court erred by: (1) denying his motion to suppress evidence seized

 3   from a vehicle in which he was a passenger; (2) denying his motion to suppress evidence

 4   seized from his person and statements he made during the course of the vehicle stop;

 5   (3) permitting the government to vouch for its cooperating witness, Junior

 6   Rivera-Vasquez, in direct examination and during closing arguments; and (4) incorrectly

 7   calculating his sentencing guidelines range by adopting drug amounts that were not

 8   supported by the record. In addition, Santillan, acting pro se, argues that the district court

 9   erred by inappropriately enhancing his sentence based on possession of a rifle and an

10   attempted kidnapping, and that his trial counsel was ineffective for failing to request a

11   minimal- or minor-role adjustment or a downward departure based on Santillan’s

12   physical and medical conditions. The first two issues, concerning whether evidence

13   obtained over the course of the vehicle stop and search should be suppressed, are

14   resolved by an opinion issued simultaneously with this summary order. We assume the

15   parties’ familiarity with the underlying facts and the procedural history of the case.

16          1.     The District Court Did Not Err in Allowing the Government to Bolster a

17   Witness Whose Credibility Had Been Attacked.

18          Santillan argues that prosecutors impermissibly vouched for Rivera-Vasquez’s

19   credibility on direct questioning and during summation. When reviewing claims of

20   prosecutorial misconduct based on inappropriate remarks, we reverse if the misconduct

21   caused “substantial prejudice by so infecting the trial with unfairness as to make the

22   resulting conviction a denial of due process.” United States v. Certified Envtl. Servs., Inc.,

23   753 F.3d 72, 95 (2d Cir. 2014). In assessing whether prosecutorial misconduct caused

24   “substantial prejudice,” we use a three-part test, analyzing the “severity of the

25   misconduct, the measures adopted to cure the misconduct, and the certainty of conviction

                                                   3
 1   absent the misconduct.” Id. Where, as here, defense counsel fails to timely object to the

 2   prosecutor’s questions eliciting the truth-telling provisions of a plea agreement or

 3   summation, we review for plain error. 1 See United States v. Gaind, 31 F.3d 73, 76 (2d Cir.

 4   1994). Plain error requires: (1) error; (2) that is plain; (3) that affects substantial rights and

 5   (4) that seriously affects the fairness, integrity, or public reputation of judicial

 6   proceedings. See Certified Envtl. Servs., 753 F.3d at 96.

 7          Santillan has not shown plain error. First, Santillan’s counsel opened the door to

 8   rehabilitating Rivera-Vasquez’s credibility by attacking it in opening remarks. See, e.g.,

 9   J.A. 394–95. This opening permitted the government to introduce aspects of Rivera-

10   Vasquez’s cooperation agreement on direct examination. See Certified Envtl. Servs., 753

11   F.3d at 86. Second, reviewing the record as a whole, we hold that no substantial prejudice

12   occurred as a result of the government’s references to Rivera-Vasquez’s obligation to the

13   tell the truth. The government was permitted to explain Rivera-Vasquez’s incentives to

14   tell the truth, and its summation did no more than encourage the jury to draw the

15   reasonable inference that Rivera-Vasquez’s cooperation agreement required him to tell

16   the truth in order to receive the benefits of cooperation. See United States v. Carr, 424 F.3d

17   213, 228–29 (2d Cir. 2005). Any references to whether Rivera-Vasquez was telling the

18   truth at trial, even though he had lied in the past, failed to rise to the level of cumulative,

19   pervasive, intentional errors constituting severe prosecutorial misconduct of the sort that

20   would require a new trial. See Certified Envtl. Servs., 753 F.3d at 95–96; United States v.

21   Parker, 903 F.2d 91, 100–01 (2d Cir. 1990).



     1
      Santillan does not contest that this challenge is subject to plain error review, although
     he also notes that his counsel at one point objected to the government’s phrasing of a
     question regarding when Rivera-Vasquez told the government “the truth.” Br. of
     Defendant-Appellant at 15 n.5 (citing J.A. 547).

                                                     4
 1         Having concluded that any prosecutorial misconduct that did occur was not

2    severe and did not deny Santillan’s right to a fair trial, and that the district court took

3    appropriate measures to cure or prevent any misconduct, United States v. Banki, 685 F.3d

4    99, 120 (2d Cir. 2012) (as amended), we deny Santillan’s challenge to his conviction on

5    these grounds.

6          2.     The District Court Did Not Err in its Sentencing Guidelines Calculations

7    or in Failing to Make a Sufficient Record for our Review.

8          Santillan’s presentence report (PSR) estimated that his offenses involved 4 kg of

 9   cocaine, 10,000 pills containing a typical net weight of 30 mg of oxycodone each, and less

10   than 100 grams of heroin. Those quantities resulted in a base offense level of 30. See

11   U.S.S.G. § 2D1.1(c)(5). The Probation Office applied two, two-level sentencing

12   enhancements: one for Santillan’s possession of an assault rifle in connection with his

13   drug offense, U.S.S.G. § 2D1.1(b)(1), and one for Santillan’s role in an attempted

14   kidnapping, U.S.S.G. § 2D1.1(b)(2). These two enhancements brought Santillan’s offense

15   level to 34, with a Criminal History Category of I, and a resulting sentencing guidelines

16   range of 151 to 188 months. Santillan unsuccessfully objected to these calculations.

17         On appeal, Santillan argues that the district court committed a procedural

18   sentencing error by estimating the amount of oxycodone Santillan was responsible for

19   without sufficient evidence and by failing to adequately explain the sentencing

20   calculations. Santillan also argues that the district court did not make the necessary

21   findings of fact that the assault rifle was connected to Santillan’s drug offense conduct

22   and that Rivera-Vasquez’s testimony regarding the kidnapping was not corroborated by

23   any other source.

24         We review a district court’s interpretation of the United States Sentencing

25   Guidelines de novo and its factual findings for clear error. United States v. Rowland, 826

                                                 5
 1   F.3d 100, 116 (2d Cir. 2016). “The clearly erroneous standard requires us to uphold the

 2   ruling of the court below unless we are left with the definite and firm conviction that a

 3   mistake has been committed.” United States v. Ramirez, 609 F.3d 495, 503 (2d Cir. 2010)

 4   (internal quotation marks omitted). The district court must explain its reasoning and

 5   make adequate findings of fact to allow for meaningful appellate review. See Gall v. United

 6   States, 552 U.S. 38, 50 (2007). The district court satisfies this obligation if it indicates that

 7   it is adopting the recommendations in the PSR. See United States v. Prince, 110 F.3d 921,

 8   924 (2d Cir. 1997). A district court must find disputed facts relevant to sentencing,

 9   including any estimate of the amount of drugs involved, by a preponderance of the

10   evidence. United States v. Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005). If direct or

11   circumstantial evidence supports that quantity determination, we must uphold it. See

12   United States v. Jones, 531 F.3d 163, 175 (2d Cir. 2008). For uncharged relevant conduct,

13   however, the district court must rely on specific evidence. Id. at 176.

14          We hold that the district court’s estimate of drug quantities was supported by a

15   preponderance of the evidence. Although Rivera-Vasquez did not specify the exact

16   dosage of oxycodone or the exact number of pills involved, he provided information that

17   allowed the Probation Office to make a reasonable estimate that the district court found

18   credible. Rivera-Vasquez’s testimony therefore provided sufficient circumstantial

19   evidence of the drug quantity and the district court did not commit clear error in adopting

20   the PSR’s calculations.

21          As for the sentencing guidelines enhancement for Santillan’s possession of an

22   assault rifle and the attempted kidnapping, the district court relied on specific evidence

23   for both findings. Rivera-Vasquez testified that he had seen Santillan with the assault

24   rifle, that the assault rifle previously belonged to another member of the drug-trafficking

25   organization, and that he recognized the assault rifle he had seen as the same one shown

                                                    6
 1   in a picture found on Santillan’s phone. He also testified that he had heard from Santillan

 2   himself, as well as other sources, that this particular assault rifle had been used in

 3   connection with violent narcotics activity: specifically, the attempted kidnapping of a

 4   man suspected of stealing narcotics and proceeds. On this record, there was sufficient

 5   evidence for the district court to conclude that the enhancements were warranted because

 6   Santillan had used the assault rifle in connection with his drug offense conduct and had

 7   used violence or made a credible threat to use violence. Having considered each of

 8   Santillan’s arguments with respect to his sentence, we affirm the district court’s

 9   calculations.

10          3.       Santillan’s Ineffective Assistance of Counsel Claim Fails.

11          In his pro se brief, Santillan argues that his trial counsel was ineffective for:

12   (1) failing to request a minimal- or minor-role adjustment pursuant to U.S.S.G. § 3B1.2;

13   and (2) failing to seek a downward departure for Santillan’s physical and mental

14   conditions pursuant to U.S.S.G. §§ 5K2.0, 5K2.13. We reject both arguments.

15          “When faced with a claim for ineffective assistance of counsel on direct appeal,

16   we may: (1) decline to hear the claim, permitting the appellant to raise the issue as part

17   of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand

18   the claim to the district court for necessary factfinding; or (3) decide the claim on the

19   record before us.” United States v. Tarbell, 728 F.3d 122, 128 (2d Cir. 2013) (internal

20   quotation marks omitted). We may decide ineffective assistance claims on direct appeal

21   “when their resolution is beyond any doubt or to do so would be in the interest of justice.”

22   United States v. Kimber, 777 F.3d 553, 562 (2d Cir. 2015). Having determined that the

23   resolution of Santillan’s ineffective assistance claim is beyond any doubt, we choose to

24   decide it on the record before us.



                                                  7
 1          “To prevail on a claim of ineffective assistance of counsel, a [defendant] must

 2   demonstrate that: (1) counsel’s representation fell below an objective standard of

 3   reasonableness; and (2) there is a reasonable probability that, but for counsel’s errors, the

 4   result of the proceeding would have been different.” United States v. Pitcher, 559 F.3d 120,

 5   123 (2d Cir. 2009) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).

 6   “In applying this standard, a reviewing court must indulge a strong presumption that

 7   counsel’s conduct falls within the wide range of reasonable professional assistance.”

8    United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (internal quotation marks omitted).

9           Santillan cannot satisfy the “heavy burden” of demonstrating ineffective

10   assistance of counsel here. Id. First, the record demonstrates that Santillan’s role was

11   neither minor nor minimal. Rivera-Vasquez’s testimony indicates that Santillan was

12   intricately involved in a wide range of narcotics trafficking activity and that he exercised

13   decision-making authority over that activity. Therefore, his counsel was not ineffective

14   for failing to seek an adjustment that would not have been granted. See United States v.

15   Abad, 514 F.3d 271, 275–76 (2d Cir. 2008) (per curiam).

16          Second, Santillan’s defense counsel was not ineffective for failing to move for a

17   downward departure under U.S.S.G. §§ 5K2.0, 5K2.13. The head injury Santillan suffered

18   after the commission of his crimes does not qualify for departure under § 5K2.13, which

19   allows for a departure when the defendant committed the offense while suffering from

20   significantly reduced mental capacity that contributed substantially to the commission of

21   the offense. Although Santillan also argues that he suffers from depression, he has not

22   shown that this condition—even if it manifested itself prior to the offense conduct, which

23   is not clear—contributed substantially to the commission of the offense.

24          Santillan’s prior counsel was not ineffective in failing to seek the adjustments

25   Santillan raises now nor is there any reason to believe the outcome would have been

                                                  8
1   different had his counsel attempted to do so. Santillan’s ineffective assistance of counsel

2   claim fails.

3                                        CONCLUSION

4          For the foregoing reasons, and in conjunction with the opinion issued

5   simultaneously, we AFFIRM the district court’s judgment of conviction and sentence.

6

7

8                                                    FOR THE COURT:
9                                                    Catherine O’Hagan Wolfe, Clerk




                                                9
