     09-4343-cr
     USA v. Naranjo-Ramirez




 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                             SUMMARY ORDER
 5
 6     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7     SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
 8     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 9     W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
10     M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
11     NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
12     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14
15           At a stated term of the United States Court of Appeals for the Second Circuit, held at
16     the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
17     York, on the 23 rd day of November, two thousand ten.
18
19     PRESENT:        AMALYA L. KEARSE,
20                     ROBERT D. SACK,
21                     GERARD E. LYNCH,
22                                Circuit Judges.
23
24
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26     UNITED STATES OF AMERICA,
27                                               Appellee,
28                              v.                                                   No. 09-4343-cr
29
30     ROBINSON, also known as
31     Chicho, also known as Robinson Flores, also known as
32     Roy,
33                                               Defendant-Appellant.
34     --------------------------------------------------------------------
35
36     FOR APPELLANT:                                    Lawrence Gerzog, New York, New York.
37
38
39
40     FOR APPELLEE:                                     Justin D. Lerer, Assistant United States Attorney
41                                                       (Susan Corkery, Assistant Unitd States Attorney,



                                                            1
 1                                              on the brief), for Loretta E. Lynch, United States
 2                                              Attorney for the Eastern District of New York.
 3
 4         Appeal from the United States District Court for the Eastern District of New York
 5   (Sandra L. Townes, District Judge).
 6
 7       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 8   DECREED that the judgment, entered on August 10, 2009, is AFFIRMED.
 9
10          Defendant-Appellant Robinson Naranjo-Ramirez was convicted, following a guilty

11   plea, of conspiracy to import heroin in violation of 21 U.S.C. §§ 952(a), 960(a)(1),

12   960(b)(1)(A), and 963. The district court sentenced Naranjo-Ramirez to 150 months of

13   imprisonment, followed by five years of supervised release, and a $100 special

14   assessment. Naranjo-Ramirez now appeals, arguing that his sentence was procedurally

15   unreasonable. We assume the parties’ familiarity with the facts and the record of prior

16   proceedings, which we reference only as necessary to explain our decision.

17          The Presentence Investigation Report (“PSR”) concluded that Naranjo-Ramirez

18   was the leader of a conspiracy involving at least eleven participants, resulting in a four-

19   point aggravating role adjustment. At sentencing, when asked by the district court

20   whether the government could prove the leadership enhancement proposed in the PSR

21   was justified, the government indicated that it had previously represented to Naranjo-

22   Ramirez that it would not argue for such an adjustment, but that it could prove the

23   leadership role if the court ordered a hearing. The district court noted that it had an

24   independent obligation to determine the advisory guideline range and to consider the

25   factors pursuant to 18 U.S.C. § 3553(a), and it ordered a hearing to determine whether


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 1   such an adjustment was appropriate. The parties eventually stipulated to a two-level

 2   adjustment, and no hearing was held. Naranjo-Ramirez now argues that his sentence is

 3   unreasonable because the district court lacked the authority to order the hearing.

 4          Naranjo-Ramirez did not object when the district court ordered the hearing, and he

 5   specifically withdrew his letter objecting to the two-level stipulated enhancement at

 6   sentencing. Accordingly, we review the district court’s decision to order the hearing for

 7   plain error. United States v. Olano, 507 U.S. 725, 732 (1993); United States v.

 8   Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007). We find no error, let alone plain error.

 9          It was “clearly within [the] power” of the district court to “direct[] the Government

10   to provide [it] with the pertinent information.” United States v. Goodman, 165 F.3d 169,

11   173 (2d Cir. 1999). Further, even if we were to construe the government’s prior

12   representation in an unsuccessful plea negotiation as a binding promise, such a promise

13   by the Government to refrain from arguing for a specific position would “not forbid the

14   government from responding to a specific request of the court by ‘supply[ing] the Court

15   with the law and the facts.’” United States v. Riera, 298 F.3d 128, 135 (2d Cir. 2002),

16   quoting Goodman, 165 F.3d at 172. Thus, the district court committed no procedural

17   error in ordering a hearing to determine whether or not Naranjo-Ramirez’s role in the

18   crime merited a leadership enhancement.

19          Naranjo-Ramirez also alleges procedural error because the district court allegedly

20   failed to account for the “harsh” conditions of his pre-extradition confinement in



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 1   Colombia’s Combita prison. “[P]re-sentence confinement conditions may in appropriate

 2   cases be a permissible basis for downward departures.” United States v. Carty, 264 F.3d

 3   191, 196 (2d Cir. 2001) (emphasis added). However, the district judge was under no

 4   obligation to depart from the Guidelines on the basis of Naranjo-Ramirez’s allegedly

 5   harsh pre-sentence confinement conditions. This is so notwithstanding that other district

 6   court judges have invoked the unusually difficult conditions in the Combita prison in

 7   granting downward departures. See, e.g., United States v. Torres, No. 01 CR 1078, 2005

 8   WL 2087818 at *2 (S.D.N.Y. Aug. 30, 2005).

 9          Naranjo-Ramirez argues that, even if such a downward departure is not mandatory,

10   the district court committed error because it “failed to consider” the harsh conditions at

11   Combita. There is a “strong presumption that a sentencing judge has taken properly

12   presented arguments into account and considered all the § 3553(a) factors in the course of

13   imposing a sentence.” United States v. Fernandez, 443 F.3d 19, 34-35 (2d Cir. 2006).

14   Naranjo-Ramirez has failed to overcome this presumption.

15          In the instant case, the district judge specifically noted that she had reviewed the

16   defense’s July 29, 2009 letter, which discussed the conditions at Combita, and Naranjo-

17   Ramirez’s attorney reiterated the harshness of the conditions there during the very hearing

18   at which the district judge imposed Naranjo-Ramirez’s sentence. The “absence of

19   explicit discussion” of the conditions at Combita “does not overcome our strong

20   presumption that the District Court faithfully performed its statutory obligation to



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 1   consider the § 3553(a) factors.” Id. at 33; see also United States v. Bonilla, 618 F.3d 102,

 2   111 (2d Cir. 2010) (“[W]e never have required a District Court to make specific

 3   responses to points argued by counsel in connection with sentencing . . . .”). We therefore

 4   conclude that Naranjo-Ramirez has not overcome the presumption that the district judge

 5   properly considered his pre-sentencing confinement conditions, even though she did not –

 6   and was not required to – specifically address those harsh conditions when imposing the

 7   sentence.

 8          We have considered all of Naranjo-Ramirez’s contentions on this appeal and have

 9   found them to be without merit. For the foregoing reasons, the judgment is AFFIRMED.

10
11
12                               FOR THE COURT:
13                               CATHERINE O’HAGAN WOLFE, Clerk of Court
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