09-1477-cr
United States v. Nunez-Gonzalez


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9 th day of June, two thousand ten.

PRESENT:            JON O. NEWMAN,
                    CHESTER J. STRAUB,
                    REENA RAGGI,
                               Circuit Judges.

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UNITED STATES OF AMERICA,
                        Appellee,
               v.                                                                      No. 09-1477-cr

MARCO ANTONIO NUNEZ-GONZALEZ,
                      Defendant-Appellant.
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APPEARING FOR APPELLANT:                                      MICHAEL A. YOUNG (Joyce C. London, on the
                                                              brief), New York, New York.

APPEARING FOR APPELLEE:                                       KATHERINE POLK FAILLA, Assistant United
                                                              States Attorney (Jason P.W. Halperin, Assistant
                                                              United States Attorney, on the brief), for Preet
                                                              Bharara, United States Attorney for the Southern
                                                              District of New York, New York, New York.
       Appeal from the United States District Court for the Southern District of New York

(Richard M. Berman, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s order entered on January 27, 2009, is AFFIRMED.

       Marco Antonio Nunez-Gonzalez pleaded guilty to conspiracy and attempt to distribute

and to possess with intent to distribute five kilograms or more of cocaine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.        Sentenced principally to 135 months’

imprisonment, the low end of his Guidelines range, Nunez-Gonzalez now appeals the

reasonableness of the sentence and the district court’s decision declining to resentence him

on remand. See United States v. Nunez-Gonzalez, 295 F. App’x 473 (2d Cir. 2008). We

review Nunez-Gonzalez’s sentence for abuse of discretion, see United States v. Cavera, 550

F.3d 180, 187-88 (2d Cir. 2008) (en banc), considering both “the procedures used to arrive

at the sentence (procedural reasonableness)” and “the length of the sentence (substantive

reasonableness),” United States v. Canova, 485 F.3d 674, 679 (2d Cir. 2007); accord United

States v. Cavera, 550 F.3d at 189. In undertaking this review, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

       1.     Mitigating Role Adjustment

       Nunez-Gonzalez submits that a Guidelines calculation error in failing to grant him a

minor or minimal role adjustment, see U.S.S.G. § 3B1.2, renders his sentence procedurally

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unreasonable.    While we have acknowledged some ambiguity regarding the standard

governing our review of role adjustments, see United States v. Labbe, 588 F.3d 139, 145 n.2

(2d Cir. 2009), we properly review the district court’s factual findings for clear error and its

legal conclusions de novo, see United States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006). A

minimal role adjustment is warranted for “defendants who are plainly among the least

culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. A minor

role adjustment “applies to a defendant . . . who is less culpable than most other participants,

but whose role could not be described as minimal.” Id. § 3B1.2 cmt. n.5. In making the

“highly fact-specific determination” to grant either adjustment, a district court considers such

factors as “the nature of the defendant’s relationship to other participants, the importance of

the defendant’s actions to the success of the venture, and the defendant’s awareness of the

nature and scope of the criminal enterprise.” United States v. Ravelo, 370 F.3d 266, 269-70

(2d Cir. 2004) (internal quotation marks omitted).

       With these standards in mind, we conclude that the district court committed no error

in declining to award a mitigating role adjustment. The district court was not required to

accept Nunez-Gonzalez’s assertions that his involvement with the drug trafficking conspiracy

was merely “sporadic and peripheral,” Appellant’s Br. at 25, or that “his presence [was] more

social than business-related,” id. at 26; see United States v. Shonubi, 998 F.2d 84, 90 (2d Cir.

1993) (“A sentencing court is not bound to accept defendant’s self-serving characterizations

of his role in an offense.”); accord U.S.S.G. § 3B1.2 cmt. n.3(C). In fact, the record shows

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that Nunez-Gonzalez made three trips to New York to visit Jorge Arturo Perez Campos, who

was involved in a drug trafficking conspiracy. During the second trip in early 2003, Nunez-

Gonzalez accompanied a co-conspirator to Philadelphia to collect drug proceeds. During the

third trip, Nunez-Gonzalez delivered an amount of money estimated at $100,000 to an

individual associated with the drug trafficking conspiracy, accompanied a co-conspirator to

the Bronx to pick up cocaine, made two more trips to Philadelphia to deliver drugs, and

dropped off a car containing approximately ten kilograms of cocaine in New Jersey. While

perhaps incipient, Nunez-Gonzalez’s involvement was plainly important to the success of the

venture.

       Even if Nunez-Gonzalez’s confederates were more involved in the drug trafficking

enterprise, “a defendant may not receive a minor role adjustment solely because he played

a lesser role than his co-conspirators; to be eligible for a reduction, the defendant’s conduct

must be minor as compared to the average participant in such a crime.” United States v.

Jeffers, 329 F.3d 94, 103 (2d Cir. 2003) (alterations, internal quotation marks, and ellipsis

omitted). In this respect, we have routinely upheld the denial of mitigating role adjustments

for brokers or couriers dealing in even relatively small quantities of drugs. See, e.g., United

States v. Imtiaz, 81 F.3d 262, 265 (2d Cir. 1996); United States v. Garcia, 920 F.2d 153, 154-

55 (2d Cir. 1990); United States v. Adames, 901 F.2d 11, 12 (2d Cir. 1990). Accordingly,

we identify no error in the district court’s denial of a mitigating role adjustment.




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       2.     Cooperation

       Nunez-Gonzalez’s contention that “the district court’s erroneous belief that it could

not consider appellant Nunez-Gonzalez’s cooperation absent a § 5K1.1 motion by the

government renders the sentence unreasonable,” Appellant’s Br. at 29, finds no support in

the law or the record. Absent record evidence suggesting otherwise, we presume that a

sentencing judge understood his sentencing discretion under United States v. Booker, 543

U.S. 220 (2005), and faithfully discharged his duty to consider the 18 U.S.C. § 3553(a)

factors, see United States v. Legros, 529 F.3d 470, 478 (2d Cir. 2008); see also United States

v. Keller, 539 F.3d 97, 101 (2d Cir. 2008) (disavowing “formulaic requirements” or “robotic

incantations” to discharge § 3553(a) duty). The record in this case provides no reason to

question this presumption. To the contrary, Judge Berman expressly stated, “I acknowledge

the efforts of [Nunez-Gonzalez] to cooperate and have taken those into account now twice

so far . . . .” December 22, 2008 Tr. at 12. “Although [the sentencing judge] had the power,

as long as the sentence imposed was reasonable, to reduce [defendant’s] sentence in light of

‘non-5K cooperation’ under 18 U.S.C. § 3553(a), []he was under no obligation to provide

any such benefit.” United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006). Accordingly,

we identify no procedural unreasonableness in the district court’s decision declining to

impose a lesser sentence based on Nunez-Gonzalez’s attempts to cooperate with the

government. Nor can we conclude that Nunez-Gonzalez’s 135-month sentence – the bottom

of the applicable Guidelines range – is substantively unreasonable. See Rita v. United States,

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551 U.S. 338, 347 (2007); United States v. Cavera, 550 F.3d at 189.

       3.     Post-Sentence Rehabilitation

       We last remanded this case to the district court for the sole purpose of allowing it “to

consider whether resentencing the defendant is appropriate in light of § 3553(a)’s axiom that

courts should ‘avoid unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct.’” United States v. Nunez-Gonzalez,

295 F. App’x at 474. Nunez-Gonzalez asserts that, on remand, the district court erred by not

considering his post-sentence rehabilitation and resentencing him accordingly. We disagree.

       Our remand order did not vacate Nunez-Gonzalez’s sentence or direct that he be

resentenced.1 Rather, it asked the district court “to consider whether resentencing the

defendant is appropriate” in light of a single factor: possible sentencing disparity with co-

defendants. Id. Such a remand was limited, not de novo. Cf. United States v. Rigas, 583

F.3d 108, 115-16 (2d Cir. 2009); United States v. Quintieri, 306 F.3d 1217, 1228 & n.6 (2d

Cir. 2002). Indeed, it was akin to that in United States v. Crosby, 397 F.3d 103, 117 (2d Cir.

2005) (remanding for “determination of whether to resentence” (emphasis in original)). Such

a remand does not permit consideration of post-sentence circumstances, such as

rehabilitation, unless and until the district court decides that resentencing is warranted. See



       1
         This case is not analogous to United States v. Hernandez, --- F.3d ---, 2010 WL
1780364, at *4 (2d Cir. 2010), in which we had vacated the sentence, requiring the district
court to resentence, a circumstance requiring consideration of all factors identified in 18
U.S.C. § 3553(a) at the time of the new sentence.

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id. at 120; United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir. 2007).

         Even if the district court could have considered rehabilitation evidence in deciding

whether to resentence defendant, we would identify no abuse of discretion in its conclusion

that Nunez-Gonzalez’s post-sentence activities – including learning to read, speak, and write

English; obtaining his GED; working as a Spanish instructor; participating in Toastmasters;

and completing an anger management course – did not warrant a reduced sentence. See, e.g.,

United States v. Cavera, 550 F.3d at 189 (“[W]e will not substitute our own judgment for the

district court’s on the question of what is sufficient to meet the § 3553(a) considerations in

any particular case. We will instead set aside a district court’s substantive determination only

in exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions.” (internal quotation marks, citation, and emphasis omitted)).

         We have considered Nunez-Gonzalez’s other arguments on appeal and conclude that

they are without merit. Accordingly, we AFFIRM the January 27, 2009 order of the district

court.

                              FOR THE COURT:
                              CATHERINE O’HAGAN WOLFE, Clerk of Court




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