    17-1254-cr
    United States v. Gobern

                           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 21st day of March, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             DEBRA A. LIVINGSTON,
                               Circuit Judges,
             PAMELA K. CHEN, *

                               District Judge.

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    United States of America,
             Appellee,

                 -v.-                                          17-1254-cr

    Argenis Adames, also known as Jomy,
    Kelly Pichardo, Victor Noble Canales,
    Edwin Tapia, Justin Wilburn, Brigido
    Rosario Rivera, Johanny Olmedo,
             Defendants,

    Alexio Gobern,
             Defendant-Appellant.


    *Judge Pamela K. Chen of the United States District Court
    for the Eastern District of New York, sitting by
    designation.
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FOR APPELLANT:             Law Offices of Elizabeth M.
                           Johnson, New York, NY.

FOR APPELLEE:              Alex Rossmiller, Assistant
                           United States Attorney, on
                           behalf of Geoffrey S. Berman,
                           United States Attorney for the
                           Southern District of New York
                           (Shane T. Stansbury, Assistant
                           United States Attorney, on the
                           brief), New York, NY.

     Appeal from an order of the United States District
Court for the Southern District of New York (Broderick,
J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the order of the district court is
AFFIRMED.

     Alexio Gobern appeals the judgment of the United States
District Court for the Southern District of New York
sentencing him principally to 144 months in prison for
conspiring to distribute more than five kilograms of
cocaine. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     As a member of a drug-trafficking organization, Alexio
Gobern participated in the packaging, mailing, and
distribution of narcotics in Puerto Rico and New York.
Between February 2015 and January 2016, Gobern and his co-
conspirators mailed at least twelve packages of cocaine
from U.S. Post Offices in Puerto Rico to various addresses
in the New York area, including Gobern’s residence. Gobern
was convicted of one count of conspiring to distribute or
possess with intent to distribute cocaine. See 21 U.S.C.
§§ 841(a), 841(b)(1)(A). Because the jury found that he
had conspired to distribute five or more kilograms of
cocaine, he was subject to a 10-year mandatory minimum
sentence. 21 U.S.C. §§ 841(b)(1)(A), 846.


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     Gobern challenges the sufficiency of the evidence to
support the drug quantity finding of five or more
kilograms. At trial, the Government presented evidence of
Gobern’s direct involvement in nine of the twelve
identified packages: video surveillance, United States
Postal Service (“USPS”) records, fingerprint analysis,
photographs, text messages and calls, and the testimony of
cooperating witnesses. Four of these packages, which law
enforcement seized and totaled 3.936 kilograms of cocaine,
were directly linked to Gobern. Five packages linked to
Gobern were shipped to the United States but never seized
or weighed, although phone records, witness testimony, and
other circumstantial evidence establish that these too were
parcels of cocaine. And an additional three seized
packages totaling roughly 3.5 kilograms of cocaine were
mailed to and from Puerto Rico by Gobern’s co-conspirators,
including Carlos Pizarro, Victor Canales, Argenis Adames,
and Justin Wilburn.

     In a conspiracy punishable under Section 841(b)(1)(A),
the Government must prove that “it was either known or
reasonably foreseeable to the defendant that the conspiracy
involved the drug type and quantity charged.” United
States v. Santos, 541 F.3d 63, 70-71 (2d Cir. 2008) (citing
United States v. Adams, 448 F.3d 492, 499 (2d Cir. 2006)).
A defendant challenging the sufficiency of evidence “bears
a very heavy burden.” United States v. Desena, 287 F.3d
170, 177 (2d Cir. 2002). We must “credit[] every inference
that the jury might have drawn in favor of the Government,”
United States v. Temple, 447 F.3d 130, 136-37 (2d Cir.
2006), and “affirm the conviction if ‘any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.’” United States v. Kozeny, 667
F.3d 122, 139 (2d Cir. 2011) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis omitted)); see also
United States v. McDermott, 245 F.3d 133, 137 (2d Cir.
2001) (“[T]he task of choosing among competing, permissible
inferences is for the [jury], not for the reviewing
court.”).

     Gobern argues that a rational trier of fact could not
have found that he was involved in the distribution of five
kilograms of cocaine. He suggests that the maximum
tabulation of cocaine product supported by the evidence is
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the sum of the four seized packages tied directly to his
acts. He dismisses as speculative the evidence of the five
unseized packages he shipped or received. Cf. United
States v. Pinckney, 85 F.3d 4, 7 (2d Cir. 1996) (“[A]
conviction cannot rest on mere speculation or
conjecture.”). And he contends that because his
participation in the conspiracy was limited to certain
shipments and certain packages, the jury could not have
considered the additional 3.5 kilograms of cocaine seized
from the packages shipped by Canales, Adames, and others.

     The jury was not limited to consideration of direct
evidence. There is undisputed direct proof that Gobern
conspired to distribute 3.936 kilograms of cocaine, and the
Government presented sufficient evidence for a reasonable
jury to infer the existence of an additional 1.06 kilograms
from the aggregate of the additional unseized packages or
the shipments seized from co-conspirators. See United
States v. Ceballos, 340 F.3d 115, 129 (2d Cir. 2003) (the
jury’s verdict may be “inferred” from circumstantial
evidence); see also United States v. Santos, 541 F.3d at 70
(juries may draw inferences as to the factual elements of
an offense by circumstantial evidence); United States v.
Desimone, 119 F.3d 217, 223 (2d Cir. 1997) (“the absence of
an actual ... seizure of narcotics does not render
insufficient” the evidence of conspiracy to distribute).

     The jury could reasonably have considered that if each
of the five unseized packages contained a comparable weight
as the average of the seized packages, the total would far
exceed five kilograms. Gobern’s alternative theory is that
the five unseized packages could have weighed so much less
than the seized packages (or contained no drugs at all)
that they did not add up to 1.04 kilograms. However, “it
is the task of the jury, not the court, to choose among
competing inferences,” United States v. Martinez, 54 F.3d
1040, 1043 (2d Cir. 1995), and the Government does not
carry the burden of “exclud[ing] every reasonable
hypothesis other than that of guilt.” Holland v. United
States, 348 U.S. 121, 139 (1954); see also United States v.
Abelis, 146 F.3d 73, 80 (2d Cir. 1998).

     Moreover, the Government presented overwhelming
evidence that Gobern had knowledge of the broader
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conspiracy comprising Adames, Pizarro, Wilburn, and
Canales, with whom Gobern regularly trafficked cocaine from
Puerto Rico to New York. For months, Gobern worked closely
with these co-conspirators on multiple packages. That he
did not personally assist with every shipment does not
impair the sufficiency of the evidence. See United States
v. Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir.), cert.
denied, 502 U.S. 928 (1991) (“The defendant’s participation
in a single transaction can, on an appropriate record,
suffice to sustain a charge of knowing participation in an
existing conspiracy.”). It was reasonable for the jury to
conclude that Gobern knew or could reasonably have foreseen
that his close confederates in the drug trafficking
enterprise facilitated other shipments without his direct
assistance, such as the seized packages linked to Pizarro
and Canales.

     For the foregoing reasons, and finding no merit in
Gobern’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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