15-0445-cr
United States v. Medina

                               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
15th day of March, two thousand sixteen.

Present:    ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
                        Circuit Judges.
            JANET C. HALL,1
                        Chief District Judge.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                          v.                                                15-0445-cr

ROBERT MEDINA, AKA POPE,

                                 Defendant-Appellant,

GEROD JACKSON, AKA PUSH, RUBEN ESTRADA, AKA MAFIA, JOHN JONES, AKA
DOE, AKA DOUGHBOY,

                        Defendants.
_____________________________________________________

Appearing for Appellant:         Mark D. Taticchi (David M. Rody and Michael D. Mann, on the
                                 brief), Sidley Austin LLP, New York, NY.
1
  The Honorable Janet C. Hall, of the United States District Court for the District of Connecticut,
sitting by designation.
Appearing for Appellee:        Christopher DiMase, Assistant United States Attorney (Margaret
                               Garnett and Frank Balsamello, Assistant United States Attorneys,
                               on the brief), 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 (Gardephe,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Robert Medina appeals from the February 3, 2015 judgment of conviction entered in the
United States District Court for the Southern District of New York (Gardephe, J.). The district
court sentenced Medina principally to 133 months’ imprisonment. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

       On appeal, Medina argues that his conviction on Count Two must be reversed because, in
his view, “18 U.S.C. § 924 authorizes only a single Section 924 charge for each narcotics
predicate.” Appellant’s Br. at 11. Medina also argues that his sentence on Count One violates
due process and the Sixth Amendment.

I. Medina’s Challenge to His Conviction on Count Two

        In United States v. Lindsay, 985 F.2d 666 (2d Cir. 1993), we held that “a defendant who
uses multiple firearms in relation to a single drug-trafficking crime may be charged with only
one violation of § 924(c)(1).” Id. at 676. In reaching this conclusion, we noted that Congress
considered the appropriate “unit of prosecution” under Section 924(c)(1) to be “the underlying
drug-trafficking offense, not the separate firearms.” Id. at 674. In the district court, Medina relied
on Lindsay to argue that Count Two must be dismissed because Count Two and Count Four each
charged a separate Section 924 offense in relation to a single drug-trafficking crime.

        The district court denied the motion to dismiss as premature, reasoning that Medina’s
challenge sounded in double jeopardy and that the Double Jeopardy Clause barred only multiple
punishments for the same offense, not multiple charges. United States v. Medina, No. S3 13 CR
272 PGG, 2014 WL 3057917, at *5 (S.D.N.Y. July 7, 2014). The district court rejected Medina’s
argument that Lindsay provided a separate, statutory basis for challenging the indictment on
“unit of prosecution” grounds. Id. The court held that “the ‘unit of prosecution’ inquiry is part of
the analysis as to whether a double jeopardy violation has occurred.” Id.

       On appeal, Medina argues that the district court committed reversible error in failing to
dismiss Count Two. The government disagrees with Medina on the merits, but also argues that
we may affirm on the alternative ground that Medina cannot demonstrate prejudice because he
was convicted of only one Section 924 offense, and, as noted, the Double Jeopardy Clause bars
only multiple punishments for the same offense. The government agrees with the district court



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that Medina’s challenge sounds only in double jeopardy and that Lindsay provides no separate,
statutory basis for challenging an indictment on “unit of prosecution” grounds.

        It is true that the unit of prosecution inquiry is often part of the analysis as to whether a
double jeopardy violation has occurred. See, e.g., United States v. Polouizzi, 564 F.3d 142, 154-
57 (2d Cir. 2009); United States v. Ansaldi, 372 F.3d 118, 124 (2d Cir. 2004). But other courts
have used the inquiry to answer what appears to be a separate, statutory question. See, e.g.,
United States v. Cureton, 739 F.3d 1032, 1040 (7th Cir. 2014) (“The absence of a Double
Jeopardy problem does not end the inquiry, however. The issue here is one of statutory
interpretation . . . so the question we focus on is whether a defendant may receive multiple 18
U.S.C. § 924(c) convictions for a single firearm use when the predicate offenses are also
committed simultaneously and without any distinction in conduct. . . . So-called ‘unit of
prosecution’ questions have long arisen before the courts.”) Indeed, in Lindsay itself, we engaged
in the unit of prosecution inquiry without reference to the Double Jeopardy Clause. See 985 F.2d
at 672-76. Thus, the district court may have erred in concluding that Lindsay provides no
statutory basis for a challenge to the indictment, separate and apart from the double jeopardy
analysis.

        We need not conclusively decide this issue, however, because, even assuming that
Medina could bring a “statutory” unit of prosecution challenge, he would not be entitled to relief.
Any error from the district court’s conclusion was harmless, because Medina was convicted of
only one Section 924 charge. Unlike the defendant in Lindsay, Medina was not charged with
multiple Section 924(c) offenses; he was charged with one Section 924(c) offense and one
Section 924(j) offense. Much of the Lindsay court’s reasoning applies only to defendants charged
with multiple Section 924(c) offenses. See, e.g., 985 F.2d at 673 (expressing a concern that
multiple Section 924(c) charges could “expose defendants to enhanced penalties that congress
may never have contemplated”). However, even assuming that the Lindsay court’s reasoning
extends to a case, like Medina’s, that involves the charging and prosecution of one Section
924(c) violation and one Section 924(j) violation, Lindsay does not support Medina’s contention
that the district court erred in refusing to dismiss the Section 924(c) count before trial. In
Lindsay, as in other cases in this Circuit, the remedy afforded by the court makes clear that the
potential problem with multiple Section 924(c) counts is the possibility of multiple convictions
and corresponding, draconian punishments “that congress may never have contemplated.”
Lindsay, 985 F.2d at 673; see also United States v. Wallace, 447 F.3d 184, 190 (2d Cir. 2006);
United States v. Finley, 245 F.3d 199, 207-08 (2d Cir. 2001). Those concerns are absent in a
case, like Medina’s, in which the defendant is convicted of a single Section 924 violation.
Because Medina was convicted of only one violation of Section 924, any error in the district
court’s decision was harmless.

II. Medina’s Challenge to His Sentence

       Medina argues that his 57-month sentence for conspiring to distribute a small quantity of
marijuana violates the Sixth Amendment’s jury-trial guarantee and the Fifth Amendment’s Due
Process Clause.

       Medina contends that his sentence violates his right to a jury trial because it could not
survive reasonableness review absent the district court’s determination that Medina conspired to

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distribute crack cocaine. In a dissent from the denial of certiorari in Jones v. United States, 135
S. Ct. 8 (2014), three Justices endorsed the view that “any fact necessary to prevent a sentence
from being substantively unreasonable—thereby exposing the defendant to the longer sentence—
is an element that must be either admitted by the defendant or found by the jury.” Id. at 8 (Scalia,
J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari); see also United
States v. Bell, 808 F.3d 926, 929 (D.C. Cir. 2015) (Millett, J., concurring in the denial of
rehearing en banc) (“I agree with Justices Scalia, Thomas, and Ginsburg . . . that the circuit case
law’s incursion on the Sixth Amendment ‘has gone on long enough[.]’” (quoting Jones, 135 S.
Ct. at 9)). But we agree with our sister circuits that “[w]hatever the merits of [this view], it is not
the law.” United States v. Jones, 744 F.3d 1362, 1369 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 8
(2014). To the contrary, our precedents establish the principle that a district court may consider
“‘facts relevant to sentencing by a preponderance of the evidence’ . . . so long as those facts do
not increase the maximum statutory punishment to which a defendant is exposed.” United States
v. Martinez, 525 F.3d 211, 215 (2d Cir. 2008) (emphasis added) (quoting United States v.
Garcia, 413 F.3d 201, 220 n.15 (2d Cir. 2005)). We join every circuit that has considered this
argument and reject it as inconsistent with this principle. See Jones, 744 F.3d at 1369; see also
United States v. Norman, 465 F. App’x 110, 120-21 (3d Cir. 2012) (collecting cases).

        Medina also argues that his sentence violates the due process and jury-trial guarantees of
the Fifth and Sixth Amendments because the district court relied on acquitted conduct at
sentencing. But, as Medina acknowledges, this Court has, on a number of occasions, upheld the
legality of acquitted-conduct sentencing. See, e.g., United States v. Vaughn, 430 F.3d 518, 527
(2d Cir. 2005). We are bound by this precedent. Accordingly, we must reject Medina’s argument
that his sentence is unconstitutional because the district court relied on acquitted conduct.

                                          *       *       *

        We have considered the remainder of Medina’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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