11-2282-cr
United States v. Delossantos

                           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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 28th day
of September, two thousand twelve.

Present:
         CHESTER J. STRAUB
         ROBERT D. SACK
         ROBERT A. KATZMANN,
                     Circuit Judges,
________________________________________________

UNITED STATES OF AMERICA,

                  v.                                            No. 11-2282-cr

ALEXIS DELOSSANTOS, aka John Doe, aka Lexi, aka Alexis

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                 Michele Hauser, New York, N.Y.

For Appellee:                            H. Gordon Hall, Sandra S. Glover, Assistant United
                                         States Attorneys, for David B. Fein, United States
                                         Attorney for the District of Connecticut.
        Appeal from the United States District Court for the District of Connecticut (Hall, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

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

        Defendant-Appellant Alexis Delossantos appeals a May 23, 2011 judgment of conviction

entered by the United States District Court for the District of Connecticut (Hall, J.) following his

guilty plea to possession with the intent to distribute 500 grams or more of cocaine and

conspiracy to possess with the intent to distribute 500 grams or more of cocaine, in violation of

21 U.S.C. §§ 841 and 846. The district court sentenced Delossantos to, principally, 60 months’

imprisonment, which was based, in part, on the court’s imposition of a two-level enhancement

for obstruction of justice in its calculation of the recommended sentencing range under the

United States Sentencing Guidelines (the “Guidelines range”). We presume the parties’

familiarity with the facts and procedural history of this case.

        “We review the reasonableness of a district court’s sentence under a deferential abuse of

discretion standard.” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir. 2010). This review

“encompasses two components: procedural review and substantive review.” United States v.

Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). A district court “commits procedural error

where it fails to calculate the Guidelines range (unless omission of the calculation is justified),

makes a mistake in its Guidelines calculation, . . . treats the Guidelines as mandatory[,] . . . does

not consider the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact.”

Id. at 190 (internal citations omitted).

        We “review the sentencing court’s interpretation of the Sentencing Guidelines de novo,

but review its related findings of fact only for clear error.” United States v. Potes-Castillo, 638


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F.3d 106, 108 (2d Cir. 2011). Accordingly, “[w]e apply a mixed standard of review to

obstruction-of-justice enhancements in sentencing,” in which we “review[] for clear error the

sentencing court’s [factual] findings” such as “what acts were performed, what was said, what

the speaker meant by [his] words, and how a listener would reasonably interpret those words,”

but review de novo the sentencing court’s “ruling that the established facts constitute obstruction

. . . under the Guidelines.” United States v. Bliss, 430 F.3d 640, 646 (2d Cir. 2005) (internal

quotation marks omitted). Under the clear error standard, “[i]f the district court’s account of the

evidence is plausible in light of the record viewed in its entirety, the court of appeals may not

reverse it even though convinced that had it been sitting as the trier of fact, it would have

weighed the evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).

       The law is clear that “where a defendant willfully fails to appear for a judicial

proceeding,” he obstructs justice. United States v. Feldman, 647 F.3d 450, 464 (2d Cir. 2011);

see also U.S.S.G. § 3C1.1, Cmt. n.4(E) (including, as an example of obstruction of justice that

triggers the sentencing enhancement, “willfully failing to appear, as ordered, for a judicial

proceeding”). To impose an offense level enhancement for obstruction of justice, “the district

court must make a finding that the defendant had a specific intent to obstruct justice.” United

States v. Carty, 264 F.3d 191, 194 (2d Cir. 2001) (per curiam) (internal quotation marks and

citations omitted). In determining whether this intent exists, the court may “rely on

circumstantial evidence and on all reasonable inferences that may be drawn from all of the

evidence.” United States v. Cassiliano, 137 F.3d 742, 747 (2d Cir. 1998). “The facts necessary

to support an obstruction of justice enhancement need to be proven only by a preponderance of

the evidence.” Carty, 264 F.3d at 194.


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       Here, Delossantos argues that the district court reached the clearly erroneous factual

conclusion that he “willfully” obstructed justice, thereby committing procedural error,

because the record evidence compelled it to find that he was unaware of his scheduled

sentencing date at the time he fled the country. This is wholly unconvincing. As an initial

matter, defense counsel below conceded that Delossantos was aware of his impending July 10,

2007 sentencing date when he fled the United States on July 2, 2007. See J.A. 79 (stating “I’m

sure he knew about July 10”); id at 116 (stating that “he would certainly have known” about the

July 10 date). Moreover, the district court reasonably refused to credit Delossantos’s own

assertion that he was unaware of the date, given that he also claimed to not have been aware of

the original June 14, 2007 sentencing date even though that date was scheduled in open court

immediately after he entered his guilty plea, see id. at 57.

       Delossantos next argues that, even if he knew there was a July sentencing date, this does

not support an inference that he wilfully fled to avoid sentencing because, before his flight, his

defense counsel had prepared a motion to continue sentencing until after September 15, 2007.

This is similarly unconvincing. Even if Delossantos knew that his counsel had prepared such a

motion before he fled on July 2, 2007, it is undisputed that the motion was not granted until July

3, 2007, the day after he fled the country. Moreover, the motion was not to suspend sentencing

indefinitely, but to a date after September 15, 2007. Accordingly, in granting the motion, the

district court simultaneously re-scheduled sentencing for September 18, 2007, and Delossantos

remained under an obligation to appear on that date. Instead, he remained in the Dominican

Republic for several years to avoid sentencing, and -- as reasonably found by the district court --

made no attempt whatsoever to contact federal authorities or his defense counsel during that

time. This is willful obstruction of justice.


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       We have considered Delossantos’s other arguments on appeal and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

hereby AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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