     11-204
     United States v. Feliciano-Galves

                          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 15th of May, two thousand thirteen.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    ROBERT D. SACK,
10                         Circuit Judge,
11                    JED S. RAKOFF,*
12                         District Judge.
13
14       - - - - - - - - - - - - - - - - - - - -X
15       UNITED STATES OF AMERICA,
16                Appellee,
17
18                    -v.-                                               11-204
19
20       TONY FELICIANO-GALVES, A/K/A PELOTERO,
21                Defendant-Appellant,
22

                *
               Judge Jed S. Rakoff, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1   LUIS APONTE, A/K/A MIGUEL,
 2            Defendant.
 3   - - - - - - - - - - - - - - - - - - - -X
 4
 5   FOR APPELLANT:             Sanford Talkin, Talkin,
 6                              Muccigrosso & Roberts, LLP, New
 7                              York, New York.
 8
 9   FOR APPELLEES:             Preet Bharara, United States
10                              Attorney for the Southern
11                              District of New York, New York,
12                              New York (Edward B. Diskant,
13                              Katherine Polk Failla, Assistant
14                              United States Attorneys for the
15                              Southern District of New York,
16                              New York, New York, on the
17                              brief).
18
19        Appeal from a judgment of the United States District
20   Court for the Southern District of New York (Stein, J.).
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23   AND DECREED that the judgment of the district court be
24   AFFIRMED.
25
26        Tony Feliciano-Galves appeals from a judgment of
27   conviction entered on January 18, 2011, in the United States
28   District Court for the Southern District of New York (Stein,
29   J.) following a jury trial. The jury convicted on both
30   counts of the Superseding Indictment: (1) conspiring to
31   distribute and to possess with the intent to distribute 50
32   grams or more of crack cocaine, in violation of 21 U.S.C. §
33   846, and (2) distributing and possessing with intent to
34   distribute 50 grams or more of crack cocaine, in violation
35   of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(A). We assume
36   the parties’ familiarity with the underlying facts, the
37   procedural history, and the issues presented for review.
38
39        The jury found, specifically, that the conspiracy count
40   (Count I) involved more than 280 grams of crack cocaine, and
41   that the distribution count (Count II) involved 50 grams or
42   more, but less than 280 grams. On January 11, 2011,
43   Appellant was sentenced to concurrent terms of ten years’
44   imprisonment, to be followed by five years of supervised
45   release. On appeal, Appellant seeks resentencing in
46   accordance with the Fair Sentencing Act of 2010 (“FSA”),
47   Public Law No. 111-220, 124 Stat. 2372 (2010), in light of
                                  2
 1   Dorsey v. United States, 132 S. Ct. 2321 (2012). Dorsey
 2   held that the FSA applies to defendants (like Appellant)
 3   whose crimes preceded the effective date of the Act (August
 4   3, 2010), but who were not sentenced until after the Act
 5   took effect. Id. at 2335. Here, however, the failure to
 6   sentence pursuant to the FSA is harmless error because the
 7   conviction for conspiracy to distribute more than 280 grams
 8   of crack cocaine triggers a ten-year mandatory minimum
 9   sentence under the FSA. See FSA § 2(a) (codified at 21
10   U.S.C. § 841(b)(1)(A)(iii)).
11
12        Appellant seeks to avoid this outcome by arguing that
13   there was insufficient evidence to convict him of the
14   conspiracy charge. This argument is unavailing.
15
16        In reviewing a jury’s verdict, this Court “consider[s]
17   the evidence in its totality, not in isolation,” United
18   States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000), and
19   views that evidence in the light most favorable to the
20   government, see United States v. Temple, 447 F.3d 130, 136-
21   37 (2d Cir. 2006). A defendant challenging the sufficiency
22   of the evidence bears a “very heavy burden.” United States
23   v. Desena, 287 F.3d 170, 177 (2d Cir. 2002). The jury’s
24   verdict must be sustained if “any rational trier of fact
25   could have found the essential elements of the crime beyond
26   a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
27   (1979) (emphasis in original).
28
29        At trial, FBI Special Agent Scott Byers testified
30   extensively about Appellant’s post-arrest admissions and his
31   later statements at the July 2009 proffer session,
32   evidencing his (ultimately unsuccessful) efforts to sell an
33   additional 300 grams of crack cocaine. A 143-48. According
34   to Agent Byers, on both occasions, Appellant described (1)
35   conversations with a confidential informant named Tony about
36   a 300-gram sale, (2) a meeting with Tony and a suspected
37   drug trafficker named Miguel in order to arrange a 300-gram
38   sale, and (3) a conversation with Victor (his supplier), who
39   lacked current inventory to fulfill the order. Call logs
40   indicated that Appellant and Tony were in frequent contact
41   in the period leading up to the unconsummated 300-gram sale.
42   In addition, Appellant’s wiretapped statements during the
43   April 21 sale--in particular, Appellant’s remark that he
44   could “move anything . . . something heavy,” A 103, and his
45   suggestion that he could procure more “raw and good”
46   cocaine, “however you want it,” id.--evinced an intent to
47   engage in subsequent transactions. Finally, Appellant

                                  3
 1   admitted at trial that he discussed the 300-gram sale with
 2   Tony: Tony “wanted me to try to get him 300 [grams] or more”
 3   of crack cocaine. A 393.
 4
 5        There was therefore ample evidence to support the
 6   verdict that Appellant conspired to distribute more than 280
 7   grams of cocaine. Appellant, therefore, has not satisfied
 8   his “very heavy burden” of demonstrating the insufficiency
 9   of the evidence. Desena, 287 F.3d at 177.
10
11        Finally, there is no question that the relevant
12   quantity (280 grams or more) was treated as an element of
13   the offense and proved beyond a reasonable doubt. As a
14   result, Apprendi v. New Jersey, 530 U.S. 466 (2000) is only
15   implicated insofar as the indictment did not contain the
16   precise quantity that the jury later found, instead charging
17   Appellant broadly with conspiracy to distribute fifty grams
18   or more of crack cocaine. But “an Apprendi violation
19   concerning an omission from an indictment is not noticeable
20   as plain error where the evidence is overwhelming that the
21   grand jury would have found the fact at issue.” United
22   States v. Confredo, 528 F.3d 143, 156 (2d Cir. 2008). As
23   outlined above, it is clear that the grand jury, reviewing
24   the evidence under the far more lenient probable cause
25   standard, would have reached the same conclusion as the
26   petit jury with regard to drug quantity. Cf. United States
27   v. Cotton, 535 U.S. 625, 633 (2002).
28
29        For the foregoing reasons, and finding no merit in
30   Appellant’s other arguments, we hereby AFFIRM the judgment
31   of the district court.
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35




                                  4
