     13-1593-cr
     USA v. Gonzalez

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of May, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                GERARD E. LYNCH,
 9                              Circuit Judges,
10
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                     -v.-                                              13-1593-cr
17
18       OMAR GONZALEZ,
19                Defendant-Appellant.1
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        LAURIE S. HERSHEY, Manhasset,
23                                             New York.
24


                1
                  The Clerk of Court is directed to amend the
         caption as above.
                                                  1
 1   FOR APPELLEE:              AIMEE HECTOR and JUSTIN S.
 2                              WEDDLE, Assistant United States
 3                              Attorneys, Of Counsel, for Preet
 4                              Bharara, United States Attorney
 5                              for the Southern District of New
 6                              York, New York, New York.
 7
 8        Appeal from a sentence of the United States District
 9   Court for the Southern District of New York (McMahon, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Omar Gonzalez appeals from a judgment of conviction
16   entered on April 18, 2013, sentencing him chiefly to 84
17   months’ imprisonment. We assume the parties’ familiarity
18   with the underlying facts, the procedural history, and the
19   issues presented for review.
20
21        Gonzalez was convicted by a jury in 2010 of one count
22   of conspiracy to distribute and to possess with intent to
23   distribute cocaine, heroin, ketamine, and morphine, in
24   violation of 21 U.S.C. § 846 (Count 1), and three
25   substantive counts of distributing and possessing with
26   intent to distribute cocaine (Count 2) and attempting to
27   distribute and to possess with intent to distribute morphine
28   (Count 3) and ketamine (Count 4), all in violation of 21
29   U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C).
30
31        This is Gonzalez’s second sentencing appeal. He was
32   sentenced originally to four concurrent terms of 120 months’
33   imprisonment, the mandatory minimum provided by 21 U.S.C.
34   §§ 846 and 841(b)(1)(B) for his conviction of conspiracy to
35   traffic in 500 or more grams of a substance containing
36   cocaine. We vacated that sentence and remanded for
37   resentencing on the ground that the Second Superseding
38   Indictment was insufficient to support Gonzalez’s sentencing
39   under § 841(b)(1)(B), because it did not state the quantity
40   of cocaine allegedly involved in the conspiracy. See United
41   States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012).
42
43        On remand, Judge McMahon sentenced Gonzalez to 84
44   months’ imprisonment. Gonzalez primarily challenges the
45   procedural and substantive unreasonableness of that
46   sentence. For the reasons that follow, we affirm the
47   conviction and sentence.

                                  2
 1   I.   Reasonableness of Sentence.
 2
 3        We review criminal sentences deferentially, for
 4   reasonableness only. See Gall v. United States, 552 U.S.
 5   38, 51 (2007) (“The fact that the appellate court might
 6   reasonably have concluded that a different sentence was
 7   appropriate is insufficient to justify reversal of the
 8   district court.”). “Reasonableness review requires an
 9   examination of the length of the sentence (substantive
10   reasonableness) as well as the procedure employed in
11   arriving at the sentence (procedural reasonableness).”
12   United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
13
14        A.  Procedural Reasonableness. “A district court
15   commits procedural error where it fails to calculate (or
16   improperly calculates) the Sentencing Guidelines range,
17   treats the Sentencing Guidelines as mandatory, fails to
18   consider the [18 U.S.C.] § 3553(a) factors, selects a
19   sentence based on clearly erroneous facts, or fails
20   adequately to explain the chosen sentence.” United States
21   v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall,
22   552 U.S. at 51).
23
24         Gonzalez first argues that the district court
25   procedurally erred because it “did not make manifest on the
26   record” that it considered relevant § 3553(a) factors, such
27   as his military service, the “role he has played as a father
28   figure . . . and provider for his extended family,” and his
29   steady employment and status as a business owner. See
30   Appellant’s Br. 15, 16, 19.
31
32        The district court rejected the Government’s request
33   for a sentence within the Guidelines range of 188 to 235
34   months and selected a sentence of only 84 months. In doing
35   so, the district court told Gonzalez that, “nice guy though
36   you be, winning the affection of outstanding lawyers and
37   being a loving father, you have lived a serious criminal
38   life[,]” Tr. of Sentencing, at 20 “and I think there is
39   nothing wrong with the calculation of your [G]uideline
40   range,” id. at 19-20. The below-Guidelines sentence of only
41   84 months was based on Gonzalez’s otherwise good character;
42   his consecutive, unserved term of imprisonment in Puerto
43   Rico on unrelated charges (with its concomitant impact on
44   his family); his personal and vocational strides in prison;
45   and his improper placement in solitary confinement prior to
46   resentencing.
47

                                  3
 1        “We have imposed no . . . requirement that a sentencing
 2   judge precisely identify either the factors set forth in
 3   § 3553(a) or specific arguments bearing on the
 4   implementation of those factors in order to comply with her
 5   duty to consider all the § 3553(a) factors along with the
 6   applicable Guidelines range.” United States v. Fernandez,
 7   443 F.3d 19, 29 (2d Cir. 2006) (emphasis in original).
 8   Given the district court’s stated familiarity with
 9   Gonzalez’s background and characteristics relevant to
10   sentencing, as well as its explanation of some of the
11   considerations that had bearing on the sentencing
12   determination (both in terms of the seriousness of the
13   offense and the mitigating personal characteristics of the
14   defendant), there is no error (let alone plain error) in the
15   district court’s failure to “robotically” recite each §
16   3553(a) factor or argument raised by the defense. United
17   States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005).
18
19        Gonzalez also contends he should have received a
20   adjustment for acceptance of responsibility. While he
21   admitted his guilt as to Counts 2 though 4, Gonzalez denied
22   participating in numerous cocaine and heroin transactions
23   that the Government proved at trial. For example, Gonzalez
24   testified that he had never sold cocaine to any customers,
25   save for 50 grams to an undercover officer; the jury
26   determined, however, that he had in fact participated in the
27   sale of over 500 grams of mixtures and substances containing
28   cocaine. We do not disturb a district court’s decision not
29   to grant a downward departure for acceptance of
30   responsibility “unless it is without foundation,” United
31   States v. Defeo, 36 F.3d 272, 277 (2d Cir. 1994). Here, the
32   record strongly supports the district court’s decision.
33
34        Next, Gonzalez asserts that the district court should
35   have recalculated his Guidelines range in light of this
36   Court’s ruling on his first appeal. Gonzalez did not object
37   to the Guidelines calculation on remand, nor does he now
38   indicate how it should have been revised. In any event, our
39   prior ruling dealt only with the applicability of the
40   mandatory minimum under 21 U.S.C. § 841(b)(1)(B), not with
41   the Guidelines range; accordingly, there was no plain error
42   in the district court’s decision to rely on the original
43   guidelines calculation. See Gonzalez, 686 F.3d at 133 (“He
44   should have been sentenced under § 841(b)(1)(C), which deals
45   with indeterminate quantities of narcotics[.] [W]e remand
46   for the court to resentence Gonzalez, on all counts,
47   pursuant to § 841(b)(1)(C).”).

                                  4
 1        Finally, Gonzalez argues that the district court’s
 2   calculation of the applicable drug quantity was incorrect
 3   because it relied in part on three kilograms of cocaine
 4   possessed by Gonzalez’s co-conspirators before Gonzalez
 5   joined the conspiracy. As we explain below, the district
 6   court properly understood the scope of co-conspirator
 7   liability in this Circuit. See infra, Part II.C. In any
 8   event, any error was harmless because, even without those
 9   three kilograms, Gonzalez’s base offense level would have
10   remained 34. See U.S.S.G. § 2D1.1(c)(3).
11
12        Accordingly, the district court committed no procedural
13   error.
14
15        B.  Substantive Reasonableness. Finally, Gonzalez
16   challenges his sentence as substantively unreasonable. “In
17   reviewing [a sentence] for substantive reasonableness, we
18   consider the totality of the circumstances, and reverse only
19   in exceptional cases where the trial court’s decision cannot
20   be located within the range of permissible decisions[.]”
21   United States v. Mason, 692 F.3d 178, 181 (2d Cir. 2012)
22   (internal quotation marks and citations omitted). This
23   standard “provide[s] a backstop for those few cases that,
24   although procedurally correct, would nonetheless damage the
25   administration of justice because the sentence imposed was
26   shockingly high, shockingly low, or otherwise unsupportable
27   as a matter of law.” United States v. Rigas, 583 F.3d 108,
28   123 (2d Cir. 2009).
29
30        Gonzalez faults the district court for declining to run
31   the sentence at least partially concurrent with the 16-year
32   term in Puerto Rico. Ultimately, the record shows that the
33   district court thoughtfully considered all of the relevant
34   sentencing factors Gonzalez presented (such as the impact of
35   his upcoming prison terms on his family and his personal
36   growth since his conviction) in light of the seriousness of
37   his offenses of conviction and his criminal history. See
38   Tr. of Sentencing, at 21 (“I can certainly take the fact [of
39   the Puerto Rican sentence] into account, and I intend to do
40   so[,] . . . but I just don’t intend to let you walk . . .
41   with no additional time beyond today for this crime.”).
42   After doing so, the district court imposed a sentence 104
43   months below the advisory Guidelines range. Based on our
44   review of the record, we cannot conclude that that sentence
45   is substantively unreasonable.
46
47

                                  5
 1   II. Remaining Arguments
 2
 3        With leave of court, Gonzalez filed a Supplemental Pro
 4   Se Brief and a Pro Se Reply Brief.
 5
 6        A.  Sufficiency of the Indictment. Gonzalez argues in
 7   his Pro Se Reply Brief that the Indictment “did not
 8   adequately state a crime under section . . . 841(b)(1)(C)
 9   because it did not allege a drug quantity.” Pro Se Reply
10   Br. 14. This argument is meritless, however, because
11   “[s]ection 841(b)(1)(C) covers distribution of unspecified
12   amounts of cocaine. Thus, allegations of distribution of
13   cocaine or possession with intent to distribute cocaine are
14   sufficient to state a complete offense under that statute.”
15   Santana-Madera v. United States, 260 F.3d 133, 142 n.5 (2d
16   Cir. 2001).
17
18        B.  Supervised Release Term. Gonzalez argues that his
19   sentence violates Alleyne v. United States, 133 S. Ct. 2151
20   (2013), because the jury allegedly did not find facts
21   sufficient to trigger the mandatory minimum term of
22   supervised release. Supp. Pro Se Br. 7. We reject this
23   claim out of hand, however, as the minimum six-year term of
24   supervised release mandated by 21 U.S.C. § 841(b)(1)(C)
25   (under which Gonzalez was properly sentenced) does not
26   depend on a finding of any particular drug quantity. See
27   § 841(b)(1)(C) (“[A]ny sentence imposing a term of
28   imprisonment under this paragraph shall, . . . if there was
29   [] a prior conviction, impose a term of supervised release
30   of at least 6 years in addition to such term of
31   imprisonment.”).
32
33        C.  Jury Instruction. Finally, Gonzalez challenges
34   the district court’s jury instruction on co-conspirator
35   liability. Specifically, Gonzalez claims that the district
36   court erred in instructing the jury that “when a defendant
37   joins a conspiracy ‘he becomes responsible for all that was
38   done before he joined,’” to the extent those acts are
39   reasonably foreseeable and within the scope of the
40   defendant’s agreement. Pro Se Reply Br. 7; see also
41   Government’s Sur-Reply Br. 5.
42
43        This instruction was an accurate assessment of our
44   well-established law, and the jury was free to judge the
45   evidence in this light. See United States v. Santos, 541
46   F.3d 63, 73 (2d Cir. 2008) (“‘A defendant need not have
47   joined a conspiracy at its inception in order to incur

                                  6
 1   liability for the unlawful acts of the conspiracy committed
 2   both before and after he or she became a member[.]’”)
 3   (quoting United States v. Rea, 958 F.2d 1206, 1214 (2d Cir.
 4   1992)) (internal alteration omitted). Gonzalez’s “confusion
 5   here is that, with regard to liability for conspiracy, a
 6   defendant may be legally responsible for acts of
 7   coconspirators prior to that defendant’s entry into the
 8   conspiracy, . . . whereas, with regard to substantive
 9   offenses, a defendant cannot be retroactively liable for
10   offenses committed prior to his joining the conspiracy.”
11   United States v. Blackmon, 839 F.2d 900, 908-09 (2d Cir.
12   1988) (emphasis in original, citation omitted). The
13   district court’s instruction did not violate these
14   principles.
15
16        For the foregoing reasons, and finding no merit in
17   Gonzalez’s other arguments, we hereby AFFIRM the judgment of
18   the district court.
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
22




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