14-2494-cr(L)
United States v. Vasquez

                            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 1st day of December, two thousand sixteen.

PRESENT: ROBERT A. KATZMANN,
                                 Chief Judge,
                 RALPH K. WINTER,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                        Nos. 14-2494-cr(L)
                                                                          14-3630-cr(Con)
EMILIANO VASQUEZ, AKA “Patalarga,” and ALEJO
POLANCO, AKA “Hondo,”
                    Defendants-Appellants,*

CARMELO DANILO ARAUJO, EDWIN
TAVARES, AKA “Chegui,” and GILBERTO ARIAS,
AKA “Troy,”
                                 Defendants.
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FOR APPELLANT EMILIANO                            Donna R. Newman, Law Offices of Donna R.
VASQUEZ:                                          Newman, PA, New York, New York; Clara
                                                  Kalhous, Esq. New York, New York.


*
    The Clerk of Court is directed to amend the case caption as set forth above.

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FOR APPELLANT ALEJO                       Ephraim Savitt, Esq., New York, New York.
POLANCO:

FOR APPELLEE:                             Nathan D. Reilly, Soumya Dayananda, and
                                          David C. James, Assistant United States
                                          Attorneys, for Robert L. Capers, United States
                                          Attorney for the Eastern District of New York,
                                          Brooklyn, New York.

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

of New York (Raymond J. Dearie, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments entered on July 7, 2014 and September 17, 2014 are

AFFIRMED.

       Defendants Emiliano Vasquez and Alejo Polanco were convicted after a jury trial

of conspiracy to distribute and possess with intent to distribute heroin, cocaine, and

marijuana, see 21 U.S.C. §§ 841, 846; conspiracy to commit Hobbs Act robbery, see 18

U.S.C. § 1951(a); discharge of a firearm in relation to a drug trafficking crime or a crime

of violence, see id. § 924(c)(1)(A), and causing death through the use of a firearm, see id.

§ 924(j)(1). Vasquez challenges his convictions on the grounds that (1) the district court

should have deemed him incompetent to stand trial, or held a second competency

hearing; (2) his firearms-related offenses were not reasonably foreseeable consequences

of the robbery and narcotics conspiracies; and (3) it cannot be determined whether his

firearms offenses validly rested on any “crime of violence” or “drug trafficking crime.”

Polanco’s counsel moves to be relieved under Anders v. California, 386 U.S. 738 (1967),

and the government moves for summary affirmance of Polanco’s conviction.                We



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assume the parties’ familiarity with the facts and record of prior proceedings, which we

reference only as necessary to explain our decision to grant Anders relief to Polanco’s

counsel and to affirm the convictions of both defendants.

1.     Emiliano Vasquez

       a.     Competency

       Vasquez faults Judge Townes’s finding, made after an evidentiary hearing, that he

was competent to stand trial and Judge Dearie’s failure sua sponte to order a new hearing

after the case was reassigned to him.

       To find a defendant competent to stand trial, a district court must make a

preponderance finding that the defendant has “(1) ‘sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding’ and (2) ‘a rational as

well as factual understanding of the proceedings against him.’”         United States v.

Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (quoting United States v. Nichols, 56 F.3d 403,

410 (2d Cir. 1995)). The determination may rest on both medical evidence and the

court’s own observations of the defendant. See United States v. Nichols, 56 F.3d at 411.

Where, as here, counsel makes no motion for a new competency hearing, the district

court must nonetheless “be alert” to changes in the defendant’s competency, Drope v.

Missouri, 420 U.S. 162, 181 (1975), and order a new hearing sua sponte “if there is

reasonable cause to believe” that such status has changed, 18 U.S.C. § 4241(a). We

review the district court’s competency finding for clear error, see United States v.

Morrison, 153 F.3d at 46, and the failure to order a new hearing for abuse of discretion,



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see United States v. Arenburg, 605 F.3d 164, 168–69 (2d Cir. 2010). We identify

neither here.

       Judge Townes’s competency finding was made after conducting a hearing to

explore the inconsistent opinions of government and defense psychologists.            Judge

Townes’s decisions to credit the findings and opinion of the government expert, and not

to rely on those of the defense expert, were not clearly erroneous given record evidence

that the defense expert lacked formal or institutional training in forensic psychology;

deemed 85–90% of all persons he examined incompetent to stand trial; had employed an

excessively exacting competency standard; and had been criticized by several state and

federal courts for prior competency examinations. See, e.g., United States v. Gigante,

166 F.3d 75, 84 (2d Cir. 1999) (describing competency review as “highly deferential,”

and observing that choice between “two permissible views of the evidence” does not

manifest clear error (internal quotation marks omitted)). To the extent Vasquez urges a

different standard for assessing a defendant’s competency than is presently recognized in

our precedents, this panel is bound by that precedent unless it is reversed by this court en

banc or by an intervening contrary ruling by the Supreme Court. See Centurion v.

Holder, 755 F.3d 115, 123 (2d Cir. 2014).

       We further conclude that Judge Dearie did not abuse his discretion in failing sua

sponte to order a new competency hearing. The record here shows Vasquez stating that

he fully understood the charges against him and both he and his counsel professing to the

district court their ability to communicate effectively with one another. At sentencing,

Judge Dearie acknowledged his awareness of Vasquez’s mental health issues, but stated

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that such issues did not give rise to competency concerns because Vasquez was “entirely

cogent.”     App’x 1733.   On this record, the district court would not have cause to

believe that Vasquez’s competency had deteriorated since Judge Townes had found him

fit for trial.

        In urging otherwise, Vasquez highlights his refusal to plead guilty to firearms

violations under a Pinkerton theory of liability, and his disagreements with four attorneys.

The district court was alert to such issues.   Indeed, it specifically found that Vasquez’s

difficulty dealing with counsel was a function of his personality, not his competency. It

further found his plea decision to reflect not incompetency but a strong, if mistaken,

belief that he was less responsible for the loss of life in the robbery because he was

“separat[ed] from the more violent ends of the[] conspiracies,” App’x 1733. Thus,

neither Vasquez’s plea decision nor his relations with counsel manifest the district court’s

abuse of discretion in not sua sponte ordering a new competency hearing. Compare,

e.g., United States v. Kerr, 752 F.3d 206, 217 (2d Cir. 2014) (holding that district court

did not abuse discretion in declining to order new competency hearing based on

defendant’s “obstinate, belligerent, and obsessive behavior,” “obsession with his [own]

theories of defense,” “distrust of his attorneys,” or desire to represent himself at trial),

with United States v. Auen, 846 F.2d 872, 875, 878 (2d Cir. 1988) (declining to order

competency hearing constituted abuse of discretion where defendant consistently gave

incomprehensible responses to court inquiries and claimed to be victim of

“psychopolitical terrorism by the Internal Revenue Service”), and United States v.



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Arenburg, 605 F.3d at 168 (same, where defendant’s trial strategy involved

cross-examining witnesses on “microwave channels broadcasting his thoughts”).

      Accordingly, Vasquez’s competency challenges fail on the merits.

      b.     Reasonable Foreseeability

      Vasquez argues that the evidence was insufficient to support his 18 U.S.C.

§ 924(c) and (j) convictions premised on Polanco’s discharge of a firearm during the

charged narcotics and robbery conspiracies and the resultant death of Liliana Colmenares.

We review a sufficiency challenge “de novo, viewing the evidence in the light most

favorable to the government, with all reasonable inferences drawn in its favor.” United

States v. Rowland, 826 F.3d 100, 107 (2d Cir. 2016) (internal quotation marks omitted).

      A defendant may be guilty of a crime committed by a co-conspirator “in

furtherance of the conspiracy” if it is “reasonably foreseeable to the defendant as a

consequence of their criminal agreement.”       United States v. Parkes, 497 F.3d 220, 232

(2d Cir. 2007) (citing Pinkerton v. United States, 328 U.S. 640 (1946) (internal quotation

marks omitted)).    “Whether a particular substantive crime is foreseeable and in

furtherance of the conspiracy is a question of fact to be decided by the jury.” United

States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996).

      Vasquez argues that the jury could not find foreseeability proved in the absence of

evidence of an agreement that “weapons would be discharged” during the conspiracy,

and in light of Polanco’s statements to his co-conspirators that Liliana Colmenares’s

death was an “accident.” Def.’s Br. 47–48. The argument fails because Pinkerton

liability extends not only to co-conspirators’ desired results, but to all reasonably

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foreseeable results in furtherance of the conspiracy. Here, the jury could reasonably

have concluded that even an unintended shooting death was a “natural,” and therefore,

foreseeable “consequence of a robbery . . . premised on the use of overmastering force

and violent armed confrontation.” United States v. Parkes, 497 F.3d at 232. The trial

evidence showed that Vasquez’s co-conspirators always carried firearms during their

prior robberies and knew that they were robbing drug dealers, who might well be armed.

The discharge of a firearm and ensuing death are reasonably foreseeable consequences of

such criminal activity.     See id. (upholding Pinkerton liability for death despite

defendants’ expectation that armed robbery would be “easy”). No different conclusion

is warranted by the fact that, as a getaway driver, Vasquez was not in the room when the

discharge of the firearm or the death occurred, see United States v. Heras, 609 F.3d 101,

110 (2d Cir. 2010). In sum, the evidence was sufficient to support the foreseeability

finding necessary for Vasquez’s convictions under 18 U.S.C. § 924(c) and (j).

      c.     “Crime of Violence” or “Drug Trafficking Crime” Predicate

      Vasquez further challenges his § 924 convictions on the ground that the general

verdict form fails to show whether guilt was premised on (1) firearms use “during and in

relation to” the charged narcotics conspiracy (a “drug trafficking crime”) or (2) the

charged Hobbs Act robbery conspiracy. He argues that Hobbs Act robbery is not a

predicate “crime of violence” under the Supreme Court’s reasoning in Johnson v. United

States, 135 S. Ct. 2551 (2015),1 raising a Yates concern. See United States v. Agrawal,


1
 While this court specifically rejected a Johnson challenge to Hobbs Act robbery in
United States v. Hill, 832 F.3d 135, 138 (2d Cir. 2016), the mandate has not yet issued.

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726 F.3d 235, 250 (2d Cir. 2013) (noting that general verdict of guilty may manifest legal

error under Yates v. United States, 354 U.S. 298 (1957), where (1) “disjunctive theories

of culpability” were submitted to jury, (2) it is “impossible to tell which ground the jury

selected,” and (3) “[one] of the theories was legally insufficient” (alteration in original)).

       Whether we review this argument based on intervening law for plain error, see

United States v. Marcus, 560 U.S. 258, 262 (2010) (requiring showing of (1) error;

(2) that is clear and obvious; (3) affecting “substantial rights”; and (4) seriously

impugning “fairness, integrity, or public reputation of judicial proceedings”), or modified

plain error, see United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1990) (placing burden on

government to show absence of prejudice when applicable law is clarified after trial),

abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997), it necessarily

fails for lack of any error.

       Even if Hobbs Act robbery were not a categorical crime of violence, Vasquez’s

§ 924 convictions are clearly supported by a narcotics predicate presenting no legal

concern.    That is because the sole Pinkerton theory supporting Vasquez’s § 924

convictions is that co-conspirator Polanco fatally discharged a firearm in furtherance of

an agreement to rob drug dealers and to distribute any recovered narcotics and narcotics

proceeds. Thus, there was no possibility that the jury’s § 924(c) verdict rested only on a

Hobbs Act robbery predicate because (1) the robbery was an act inextricably intertwined

with and, indeed, in furtherance of the charged narcotics conspiracy, and (2) the jury

found that narcotics conspiracy proved beyond a reasonable doubt.                    In these

circumstances, where a challenged § 924 verdict undoubtedly rests on a valid

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drug-trafficking predicate, no Yates concern arises from a possible defect in a related

“crime of violence” predicate. See United States v. Zvi, 168 F.3d 49, 55–56 (2d Cir.

1999) (rejecting Yates challenge where time-barred money-laundering predicate

implicitly required finding of valid wire-fraud predicate); see also United States v.

Coppola, 671 F.3d 220, 237–38 (2d Cir. 2012) (holding any Yates error harmless where

predicates rested on same extortive acts of which jury found defendants guilty).

       To the extent Vasquez hypothesizes a way in which the firearms discharge and

resulting murder could have related to the robbery, but not the narcotics conspiracy, he

points to nothing in the record showing that such distinct theories were ever advanced at

trial. Rather, the record shows only, as earlier noted, that the robbery scheme was

presented as a part of the proved narcotics scheme. Accordingly, we affirm Vasquez’s

§ 924(c) and (j) convictions based on the narcotics trafficking predicate without needing

to decide if they could also rest on the robbery predicate.

2.     Alejo Polanco

       Polanco’s court-appointed counsel does not challenge his conviction but, rather,

moves to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) (allowing

counsel to ask for permission to withdraw if convinced, after conscientious investigation,

that appeal is frivolous). The government, in turn, moves for summary affirmance.

       “We will not grant an Anders motion unless we are satisfied that counsel has

diligently searched the record for any arguably meritorious issue in support of his client’s

appeal, and defense counsel’s declaration that the appeal would be frivolous is, in fact,

legally correct.” United States v. Whitley, 503 F.3d 74, 76 (2d Cir. 2007) (internal

                                              9
quotation marks omitted)). Assessing the potential merit of an appeal is the role of

counsel, and this court ordinarily will not “independently determine the merits of an

appeal[] absent a properly prepared Anders brief.” United States v. Burnett, 989 F.2d

100, 104 (2d Cir. 1993). Here, Polanco’s counsel did aver that he had searched the

record for any arguments available on appeal, but did not, like counsel for his

co-defendant, supplement the record in light of Johnson v. United States, 135 S. Ct. 2551

(2015). To the extent such an argument is even “arguably meritorious,” it was counsel’s

duty either to supplement the Anders motion or to join in briefing filed on behalf of

Vasquez.        We do not lightly excuse such an omission but, in the particular

circumstances presented here, we are able “independently [to] determine the merits of

[the] appeal” without further briefing on this issue. See United States v. Burnett, 989 F.2d

at 104.

          First, Polanco and Vasquez were convicted, after a joint trial, of the same offenses.

Polanco, however, cannot pursue the first two challenges raised by Vasquez because

(1) his competency was never at issue, and (2) his § 924 liability was not premised on

Pinkerton, but on his role as the actual shooter. Second, while Polanco’s counsel failed

to raise any Johnson argument akin to that advanced by Vasquez’s counsel, such an

argument would fail for the reason just discussed: that is, both defendants’ § 924

convictions are supported by a proved narcotics conspiracy predicate that is inextricably

intertwined with the Hobbs Act robbery predicate but without the latter’s possible

Johnson issue.



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         Third, counsel’s discussion of the substantive and procedural reasonableness of

Polanco’s sentence, see United States v. Whitley, 503 F.3d at 77, while brief, was

adequate. As to procedural reasonableness, Polanco’s killing of Liliana Colmenares

made him statutorily eligible for a life sentence. See 18 U.S.C. § 924(j). The district

court noted that the § 924(j) conviction generated a total offense level of 44, see U.S.S.G.

§ 2A1.1, App. A, elevating Polanco’s Guidelines sentencing range to life imprisonment,

see 2013 U.S.S.G. Manual Ch. 5 Pt. A, Sentencing Table, which sentence the government

urged.    As to substantive reasonableness, the district court sentenced Polanco to a

below-Guidelines 27-year prison term, finding that Polanco had not intended to kill

Colmenares, and appeared “contrite” and “haunted” by her death, see August 20, 2014

Sentencing Transcript, at 16:23, 17:4–6. In general, a below-Guidelines sentence is

strong evidence that a sentence is not substantively unreasonable, see United States v.

Messina, 806 F.3d 55, 66 (2d Cir. 2015), and Polanco has no colorable argument here

that the 27-year sentence was outside the broad range of discretion afforded sentencing

judges, see United States v. Cavera, 550 F.3d 180, 188–89 (2d Cir. 2008) (en banc);

United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).    No other non-frivolous issues

are apparent.

         Finally, the record demonstrates that counsel provided Vasquez with a copy of his

motion and accompanying brief, and wrote to Polanco, even before filing his brief, to

explain its consequences and to clarify that Polanco had a right to pursue his appeal pro

se or to seek new counsel. Counsel directed Polanco to obtain the assistance of a

bilingual inmate in reviewing the message, and thereafter, Polanco confirmed that he

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understood the message and was consenting to counsel’s withdrawal. While counsel

was also required to append to his brief a transcript of the district court proceedings, see

United States Court of Appeals for the Second Circuit, How to File an Anders Brief,

http://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_case/pdf/Anders%20brief%2

0instructions%20and%20checklist%20combined%2010-11.pdf, his failure to do so does

not here require denial of the motion because copies of the relevant transcripts were

available through Vasquez’s appeal and the district court’s docket.

       Accordingly, as to Polanco, we grant counsel’s Anders motion to withdraw and

the government’s motion for summary affirmance.

3.     Conclusion

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

without merit. Accordingly, the Anders motion of Polanco’s counsel is GRANTED and

the judgments of conviction as to both Polanco and Vasquez are AFFIRMED.

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




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