15-1452
United States of America v. Caballero


                                  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, at 40 Foley Square, in the City of New York, on
the 5th day of December, two thousand sixteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RALPH K. WINTER,
         GUIDO CALABRESI,
                     Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,

                                 Appellee,

                                  v.                                  No. 15-1452

SAUL CABALLERO, a/k/a Paisa,
a/k/a Fernando PenaBaez,

                                 Defendant-Appellant,

JOSE HINOJOSA, JUAN PAULINO, a/k/a Shorty,
CHARLIE FERNANDEZ, EFRAIN RODRIGUEZ,
PEDRO BRITO, a/k/a Cabrito, a/k/a Leica, a/k/a Francisco
Ortega-Almanzar, LORENZO RIVERAS-QUEZADA, a/k/a
Chente, EDWARD RODRIGUEZ-MARTINEZ, CUELLAR
NANCY CASTENEDA, BRINNEL RAHIMER HILARIO-
LOPEZ, a/k/a Brahilion Lopez, a/k/a Boquera, a/k/a Bokera,
HECTOR MENA,

                     Defendants.
_____________________________________________
For Defendant-Appellant:           Darrell B. Fields, Of Counsel, Federal Defenders of New York,
                                   New York, NY.

For Appellee:                      Patrick Egan and Michael Ferrara, Assistant United States
                                   Attorneys, for Preet Bharara, United States Attorney for the
                                   Southern District of New York, New York, NY.


        Appeal from the United States District Court for the Southern District of New York

(Castel, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

        Defendant Saul Caballero appeals from a judgment of the United States District Court for

the Southern District of New York (Castel, J.) sentencing him principally to 210 months’

imprisonment for conspiring to distribute and possess with intent to distribute one kilogram and

more of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and for conspiring to

distribute and possess with intent to distribute 500 grams and more of methamphetamine, also in

violation of §§ 846 and 841(b)(1)(A). We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

        On March 26, 2014, Caballero pleaded guilty to both counts of a Superseding Indictment.

At the plea hearing, the government stated its intent to seek a four-level enhancement under

§ 3B1.1 of the United States Sentencing Guidelines for Caballero’s role, in the government’s

view, as an “organizer or leader” of the charged conspiracies. Caballero objected to the role

enhancement and requested a Fatico hearing. Prior to the Fatico hearing, Caballero filed a

motion requesting that the district court submit the question of Caballero’s role to a jury for

determination beyond a reasonable doubt. Caballero’s motion was premised on the fact that a

finding that he was an “organizer or leader” or “manager or supervisor” of either conspiracy


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would render him ineligible for safety valve relief from the 10-year mandatory minimum

sentence he faced for his convictions.1 Caballero asserted that the availability of the safety valve

— in conjunction with the principle that, under the Sixth Amendment, “any fact that increases

the mandatory minimum is an ‘element’ that must be submitted to the jury” — rendered

Caballero’s leadership role an “element” that required a jury determination beyond a reasonable

doubt. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013).

        On February 24, 2015, the district court denied Caballero’s motion for a jury

determination of his leadership role and found, based on the evidence adduced at the Fatico

hearing, that the government had “proved by a preponderance of the evidence that Caballero

acted as a manager or supervisor of the underlying heroin distribution conspiracy,” albeit not the

methamphetamine distribution conspiracy. United States v. Caballero, 93 F. Supp. 3d 209, 211

(S.D.N.Y. 2015). As such, Caballero did not qualify for safety valve relief and remained subject

to a 10-year mandatory minimum sentence.

        On appeal, Caballero argues (1) that his Sixth Amendments rights were violated when the

district court found facts that rendered him ineligible for safety valve relief, (2) that the district

court’s finding that Caballero was a “manager or supervisor” of the heroin distribution

conspiracy was erroneous in any case, and (3) that his 210-month sentence is substantively

unreasonable. We reject each argument.

        In Alleyne v. United States, the Supreme Court extended its decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000), to hold that “[a]ny fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.”
1
 The safety valve statute provides that, in the case of certain offenses (including the narcotics
offenses at issue here), courts shall impose a sentence “without regard to any statutory minimum
sentence” if the court finds at sentencing proceedings, inter alia, that “the defendant was not an
organizer, leader, manager, or supervisor of others in the offense, as determined under the
sentencing guidelines.” 18 U.S.C. § 3553(f)(4).

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Alleyne, 133 S. Ct. at 2155. Because “[m]andatory minimum sentences increase the penalty for a

crime . . . any fact that increases the mandatory minimum is an ‘element’ that must be submitted

to the jury.” Id. Here, however, the district court’s finding that Caballero played a managerial and

supervisory role in the heroin distribution conspiracy did not “increase” Caballero’s mandatory

minimum, nor did it trigger it. As this Court reasoned in rejecting a near-identical challenge

before Alleyne issued, the safety valve “statute does not require a district court to make

affirmative findings . . . before applying the mandatory minimum sentence.” United States v.

Holguin, 436 F.3d 111, 117 (2d Cir. 2006). “Rather, the mandatory minimum applies whenever”

the drug quantity at issue exceeds the relevant statutory threshold, which, in this case, “was

proved beyond a reasonable doubt by [Cabellero’s] guilty plea.” Id. “[T]he only effect of the

judicial fact-finding is either to reduce a defendant’s sentencing range or to leave the sentencing

range alone, not to increase it.” Id.2 Because Alleyne is concerned with judicial fact-finding that

“aggravates” the legally prescribed punishment, the statutory lenity embodied by the safety valve

is not implicated. 133 S. Ct. at 2158; see also United States v. Jacques, 555 F. App’x 41, 50 (2d

Cir. 2014) (summary order) (rejecting defendant’s theory on plain error review and noting that

Alleyne “len[t] no support” to defendant’s argument).3


2
  Holguin relied in part on the Supreme Court’s holding in Harris v. United States, 536 U.S. 545
(2002), that judicial fact-finding that increases a mandatory minimum sentence does not run
afoul of the Sixth Amendment. See Holguin, 436 F.3d at 118–19 (citing Harris, 536 U.S. at 560–
68). Alleyne squarely overruled Harris, so those portions of Holguin that relied on Harris can no
longer be deemed good law. See Alleyne, 133 S. Ct. at 2155. Holguin’s analysis of the effect of
the safety valve statute on a mandatory minimum remains valid and highly relevant, however.
3
 Every circuit to have considered the issue has rejected Caballero’s argument for substantially
these reasons. See United States v. Leanos, 827 F.3d 1167, 1169 (8th Cir. 2016) (“Five of our
sister circuits have addressed this specific issue, and all five have declined to extend Alleyne in
th[is] manner . . . .”); United States v. King, 773 F.3d 48, 55 (5th Cir. 2014) (“Alleyne
emphasizes the aggravating nature of increasing a mandatory minimum sentence. In contrast, the
safety valve at issue here mitigates the penalty.” (citation omitted)); United States v. Lizarraga-
Carrizales, 757 F.3d 995, 999 (9th Cir. 2014) (“[T]he denial of safety valve relief does not

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       Turning to whether the leadership enhancement was warranted on the merits, “we review

a district court’s determination that a defendant deserves a leadership enhancement under

§ 3B1.1 de novo,” while “review[ing] the court’s findings of fact supporting its conclusion only

for clear error.” United States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009). Under § 3B1.1(b) of

the Sentencing Guidelines, a three-level enhancement to a defendant’s offense level is warranted

“[i]f the defendant was a manager or supervisor (but not an organizer or leader) [of the offense]

and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G.

§ 3B1.1(b). “A defendant may properly be considered a manager or supervisor if he exercised

some degree of control over others involved in the commission of the offense.” United States v.

Diamreyan, 684 F.3d 305, 309 (2d Cir. 2012) (per curiam) (internal quotation marks omitted).

       Here, the district court found that Caballero “supervised the key aspects of obtaining and

distributing the heroin;” “exercised authority over the extraction process and the individuals

involved;” “issued instructions to his co-conspirators and managed key logistics to procure,

transport, pay for and distribute heroin;” and otherwise “directed the actions of his co-

conspirators.” Caballero, 93 F. Supp. 3d at 218.

       Caballero asserts that the individuals the district court found him to have exercised

control over were in fact experienced practitioners of the drug trade who did not require

Caballero’s guidance or instruction. But the relevant question under our case law is whether

Caballero “exercised some degree of control” over these individuals, not whether he groomed or

trained them. Diamreyan, 684 F.3d at 309. In any event, Caballero does not contend that the

district court’s findings were clearly erroneous. And those findings amply support the district

increase the statutory maximum or minimum such that Alleyne is implicated.”); United States v.
Silva, 566 F. App’x 804, 807–08 (11th Cir. 2014) (unpublished per curiam); United States v.
Juarez-Sanchez, 558 F. App’x 840, 843 (10th Cir. 2014) (unpublished); United States v.
Harakaly, 734 F.3d 88, 99 (1st Cir. 2013) (“Judicial fact-finding that precludes safety-valve
relief is permissible because it does not increase th[e] baseline minimum sentence.”).

                                                   5
court’s determination that Caballero qualified as a “manager” or “supervisor” of the heroin

distribution conspiracy under § 3B1.1 of the Sentencing Guidelines. Accordingly, the district

court committed no error in applying the role enhancement at sentencing.

       Finally, “[w]e review a sentence for . . . substantive reasonableness under a ‘deferential

abuse-of-discretion standard.’” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Caballero argues that his 210-month

sentence was substantively unreasonable in light of his age, poor health, lack of criminal history,

likely deportation following release, and the non-violent nature of his offense. In particular,

Caballero argues that his sentence, which was at the bottom of the Guidelines range, is akin to a

life sentence because a doctor consulted for purposes of sentencing determined that he has a life

expectancy of 14 additional years. However, the district court’s rationale for imposing a 210-

month sentence — focused on Caballero’s ability to recidivate and the need to protect the public

— was both reasoned and reasonable. Moreover, Caballero overstates the import of the doctor’s

report on which he relies. The report itself explains that “life expectancy refers to the average

survival time in a large group of persons similar to the individual. It is not a prediction of the

actual number of years the individual will live.” App. 304. It was not unreasonable for the

district court to decline to impose a more lenient sentence solely on account of Caballero’s poor

health. The district court’s sentence was well within the range of permissible outcomes.

       We have considered all of the defendant’s argument on this appeal and find in them no

basis for reversal. Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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