     18-1644-cr
     United States v. Boria

                                   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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   8th day of July, two thousand nineteen.
 4
 5   Present:         PIERRE N. LEVAL,
 6                    ROSEMARY S. POOLER,
 7                    BARRINGTON D. PARKER,
 8                                Circuit Judges.
 9
10   _____________________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                                   Appellee,
15
16                            v.                                                  18-1644-cr
17
18   OSCAR BORIA, JR.,
19
20                           Defendant-Appellant.1
21   _____________________________________________________
22
23   Appearing for Appellant:        James R. DeVita, White Plains, N.Y.
24
25   Appearing for Appellee:         Allison Nichols, Assistant United States Attorney (Anden Chow,
26                                   Won S. Shin, Assistant United States Attorneys, on the brief), for
27                                   Geoffrey S. Berman, United States Attorney for the Southern
28                                   District of New York, New York, N.Y.
29


     1
         The Clerk of the Court is directed to amend the caption as above.
 1   Appeal from the United States District Court for the Southern District of New York (Seibel, J.).
 2
 3        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 4   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 5
 6            Defendant-Appellant Oscar Boria, Jr. appeals from a judgment of conviction entered on
 7   May 25, 2018, in the United States District Court for the Southern District of New York (Seibel,
 8   J.), following a jury trial. Boria was sentenced to a term of 30 months’ imprisonment, to be
 9   followed by three years’ supervised release. We assume the parties’ familiarity with the
10   underlying facts, procedural history, and specification of issues for review.
11
12            Boria primarily argues that: (1) the evidence was insufficient to support his conspiracy
13   conviction; (2) the district court erred with respect to its buyer-seller jury instruction; (3) the
14   district court erred in admitting a detective’s testimony that he recognized Boria; (4) the district
15   court erred in failing to hold an evidentiary hearing regarding his motion to suppress; and (5) his
16   sentence was unreasonable because the district court erred in approximating drug quantity and in
17   denying a two-level reduction for acceptance of responsibility. We reject each argument.
18
19           First, the evidence was sufficient to support Boria’s membership in the charged
20   conspiracy. Although this Court reviews sufficiency of the evidence claims de novo, see United
21   States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010), a defendant mounting such a challenge
22   “bears a heavy burden,” United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) (internal
23   quotation marks omitted). This is because, in assessing whether the evidence was sufficient to
24   sustain a conviction, “we view the evidence in the light most favorable to the government,
25   drawing all inferences in the government’s favor and deferring to the jury’s assessments of the
26   witnesses’ credibility.” Sabhnani, 599 F.3d at 241 (quoting United States v. Parkes, 497 F.3d
27   220, 225 (2d Cir. 2007)).
28
29           To establish that a defendant knowingly joined and participated in the scheme alleged in
30   the indictment, the government must offer evidence of the defendant’s “purposeful behavior
31   aimed at furthering the goals of the conspiracy.” United States v. Chavez, 549 F.3d 119, 125 (2d
32   Cir. 2008) (internal quotation marks omitted). “[T]he government need not show that the
33   defendant knew all of the details of the conspiracy, so long as he knew its general nature and
34   extent.” Id. (internal quotation marks omitted). “Both the existence of a conspiracy and a given
35   defendant’s participation in it with the requisite knowledge and criminal intent may be
36   established through circumstantial evidence.” United States v. Stewart, 485 F.3d 666, 671 (2d
37   Cir. 2007).
38
39           Under the buyer-seller exception, a purchase and sale do not constitute a conspiracy
40   unless there is “additional evidence showing an agreement to join together to accomplish an
41   objective beyond the sale transaction.” United States v. Hawkins, 547 F.3d 66, 72 (2d Cir. 2008).
42   This exception effectuates a “policy judgment that persons who acquire . . . illegal drugs for their
43   own consumption because they are addicted . . . should not be punished with the severity
44   directed against those who distribute drugs.” United States v. Parker, 554 F.3d 230, 235 (2d Cir.
45   2009). If, however, “the evidence supports a finding that the seller shared with the buyer an
46   interest in furthering resale by the buyer, the seller and buyer may be found to be in a



                                                      2
 1   conspiratorial agreement to further the buyer’s resale.” Id. “[C]ircumstances surrounding a
 2   buyer-seller relationship” that can, but do not necessarily, “establish an agreement to participate
 3   in a distribution conspiracy” include “whether there was prolonged cooperation between the
 4   parties, a level of mutual trust, standardized dealings, sales on credit (‘fronting’), and the
 5   quantity of drugs involved.” Hawkins, 547 F.3d at 74. Whether there is a distribution conspiracy
 6   as opposed to a mere buyer-seller relationship “is a highly fact-specific inquiry.” Id.
 7
 8            Here, the evidence—viewed in the light most favorable to the government—is sufficient
 9   to sustain Boria’s conviction on the conspiracy charge. Goodman distributed wholesale
10   quantities to Boria; other dealers at issue purchased narcotics from Goodman on credit;
11   Goodman communicated the same messages at around the same time to the dealers to inquire
12   when he was going to be paid; Boria was among these dealers; and both the other dealers and
13   Boria would respond with phrases like, “got that for u,” in reference to payment. Trial Tr. at 561;
14   see also Tr. at 242-43, 472-73, 259-60. Additionally, Boria was one of the only people Goodman
15   contacted during the relevant time frame; Boria had a designated “spot” to meet with Goodman
16   that was referred to as “your spot,” Trial Tr. at 242-43; and they did not need to discuss
17   quantities or price beforehand. Taken in the light most favorable to the government, the evidence
18   was sufficient for the jury to conclude that Goodman repeatedly, within a short period of time,
19   sold wholesale quantities to Boria with the shared expectation and purpose that Boria would
20   resell, thus financing further purchases for further distribution. Accordingly, the evidence was
21   sufficient for the jury to conclude that Boria and Goodman conspired together that Boria would
22   distribute the drugs he acquired from Goodman.
23
24            Second, Boria argues that the jury’s note requesting clarification shows that the district
25   court’s instruction on the buyer-seller relationship was inadequate and that the instruction should
26   have contained his two requested sentences. “The trial court enjoys considerable discretion in
27   construing the scope of a jury inquiry and in framing a response tailored to the inquiry.” United
28   States v. Rommy, 506 F.3d 108, 126 (2d Cir. 2007). “In doing so, it is not required to reference
29   specific arguments advanced or defenses raised by counsel in urging particular outcomes.” Id.
30   Ultimately, “[b]ecause the jury may not enlist the court as its partner in the factfinding process,
31   the trial judge must proceed circumspectly in responding to inquiries from the jury.” Id. at 126-
32   27 (internal quotation marks omitted). Here, the district court did not err in responding to the
33   jury: “Could you be more specific? I am not clear on what you are interested in (beyond what
34   appears on Pages 18 to 31 of the jury charge).” Trial Tr. at 921. The given instruction accurately
35   represented the law and Boria’s defense—as the district court observed, Boria’s requested
36   instruction was tilted to favor the defendant—and the district court did not err in attempting to
37   clarify a broad inquiry from the jury before responding.
38
39           Third, Boria argues that the district court abused its discretion where it allowed, without
40   notice, the government’s question to Detective Slanovec—whether he recognized Boria when he
41   and Officer Rosen drove up to the spot where Boria had been stopped—and Detective
42   Slanovec’s response, “Yes.” Trial Tr. at 542. Evidentiary rulings are reviewed for abuse of
43   discretion, United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009), and “harmless error
44   analysis applies to evidentiary errors,” United States v. Tropeano, 252 F.3d 653, 659 (2d Cir.
45   2001). “[A] police officer’s testimony that he often saw the defendant in the area where the
46   relevant drug transactions occurred [is] not other acts evidence subject to Rule 404(b).” United



                                                      3
 1   States v. Scott, 677 F.3d 72, 77-78 (2d Cir. 2012) (internal quotation marks and alteration
 2   omitted). Here, the detective’s single-word response affirming that he had recognized Boria did
 3   not constitute other-acts evidence subject to Rule 404(b). Accordingly, the district court did not
 4   err in admitting it.
 5
 6            Fourth, Boria argues that the district court erred in not holding an evidentiary hearing on
 7   his motion to suppress the cocaine recovered from his vehicle and the statements he made while
 8   stopped by law enforcement because of his assertion that the police fabricated the traffic
 9   violation. This Court reviews the denial of a request for a suppression hearing for abuse of
10   discretion. United States v. Getto, 729 F.3d 221, 226 n.6 (2d Cir. 2013). “[A] warrantless search
11   of a movable vehicle is permissible when the police have probable cause to believe that the
12   vehicle contains contraband.” United States v. Harwood, 998 F.2d 91, 96 (2d Cir. 1993). A
13   district court does not abuse its discretion by denying a hearing when the defendant’s allegations,
14   “even if assumed to be true, would not require suppression.” Getto, 729 F.3d at 226 n.6. Here,
15   the police had probable cause to believe there was contraband in Boria’s vehicle, and the search
16   was therefore lawful under the automobile exception. As a result, the district court did not abuse
17   its discretion by denying a hearing because even if Boria’s allegations regarding fabrication of
18   the traffic violation were true, they would not require suppression.
19
20           Finally, Boria argues that his sentence was unreasonable because a) the district court used
21   too high a drug quantity when “the only quantity that the evidence shows is the 186 grams seized
22   from Mr. Boria the day of his arrest,” Appellant’s Br. at 46, and b) the district court erred in
23   denying him a two-level reduction for acceptance of responsibility despite his offer to plead
24   guilty to the possession conduct charged in Count Two.
25
26            “We review the district court’s interpretations of the Sentencing Guidelines de novo and
27   its related findings of fact for clear error.” United States v. Cain, 671 F.3d 271, 301 (2d Cir.
28   2012). “The quantity of drugs attributable to a defendant is a question of fact. As such, if the
29   evidence—direct or circumstantial—supports a district court’s preponderance determination as
30   to drug quantity, we must sustain that finding.” United States v. Jones, 531 F.3d 163, 175 (2d
31   Cir. 2008). “[W]e are mindful of the Guidelines’ express instruction that where there has been no
32   seizure of narcotics, or where the quantity seized does not reflect the true scale of the offense, a
33   sentencing judge should ‘approximate’ the relevant drug quantity, see id. § 2D1.1, Application
34   Note 12, based on a preponderance of the evidence, see id. § 6A1.3 (Policy Statement),
35   comment.” Id. “In making such an estimate, the court has broad discretion to consider all
36   relevant information . . . .” United States v. Blount, 291 F.3d 201, 215 (2d Cir. 2002). Here, the
37   district court did not err in finding by a preponderance of the evidence that Boria participated in
38   transactions involving at least 500 grams of cocaine and that the quantity was reasonably
39   foreseeable to him. It was not clear error for the district court to conclude that the phone at issue
40   belonged to Boria, that his previous meetings with Goodman involved the transaction of drugs,
41   and that he reasonably should have known that there were other players like him.
42
43           A district court’s decision not to grant an acceptance-of-responsibility adjustment is
44   “entitled to great deference on review.” U.S.S.G. § 3E1.1 cmt. n.5. “Whether the defendant has
45   accepted responsibility is a factual question, and a district court’s determination in this regard
46   should not be disturbed unless it is without foundation.” United States v. Taylor, 475 F.3d 65, 68



                                                      4
 1   (2d Cir. 2007) (internal quotation marks and alteration omitted). Though Boria offered before
 2   trial to plead to possession of 186 grams of cocaine, he neither admitted nor offered to plead to
 3   the conspiracy, of which he was found guilty. Accordingly, the district court did not err in
 4   declining to apply the acceptance-of-responsibility adjustment.
 5
 6           We have considered the remainder of Boria’s arguments and find them to be without
 7   merit. Accordingly, we hereby AFFIRM the district court’s judgment.
 8
 9                                                        FOR THE COURT:
10                                                        Catherine O’Hagan Wolfe, Clerk
11
12




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