     09-0980-cr; 09-0983-cr
     United States v. Acosta and Melo

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1 st day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT D. SACK,
 9                PETER W. HALL
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               09-0980-cr;
17                                                                       09-0983-cr
18       RAMON ACOSTA, also known as Juicy,
19       also known as Arsenio Rodriguez, also
20       known as Fnu Lnu, MANUEL MELO, also
21       known as El Gago, also known as Gago,
22
23                Defendants-Appellants.
24       - - - - - - - - - - - - - - - - - - - -X
25
26       APPEARING FOR APPELLANTS:              MITCHELL J. DINNERSTEIN, Law
27                                              Office of Mitchell J.
28                                              Dinnerstein, New York, NY for
29                                              Defendant-Appellant Ramon
30                                              Acosta; THOMAS H. NOOTER,
31                                              Freeman Nooter & Ginsberg, New
32                                              York, NY, for Defendant-
33                                              Appellant Manuel Melo.
34

                                                  1
1    APPEARING FOR APPELLEE:      TELEMACHUS P. KASULIS, (Michael
2                                 Q. English, Katherine Polk
3                                 Failla on the brief) for Preet
4                                 Bharara, United States Attorney
5                                 for the Southern District of New
6                                 York, New York, NY.
7
8

9        Appeal from judgments of the United States District

10   Court for the Southern District of New York (Marrero, J.).

11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the judgments of the district court be

13   AFFIRMED.

14       Co-defendants Ramon Acosta and Manuel Melo each appeal

15   from judgments of conviction entered on March 9, 2009, in

16   the United States District Court for the Southern District

17   of New York (Marrero, J.) following an 11-day jury trial.

18   Both were charged with various offenses related to their

19   involvement in a robbery gang operating between 2003 and

20   2006.

21       Melo was convicted of (among other things) an attempted

22   Hobbs Act robbery on June 23, 2004, and a subsidiary firearm

23   offense.    See 18 U.S.C. § 1951, 1952; 18 U.S.C. §

24   924(c)(1)(A).    He argues--as he did in the district court

25   under Rule 29--that the record supports no inference that he

26   attempted to commit a crime of violence or threatened

27   violence, a finding required by the statute.    See 18 U.S.C.


                                    2
1    § 1951, 1952; Fed. R. Civ. P. 29.   “A court may overturn a

2    conviction on this basis only if, after viewing the evidence

3    in the light most favorable to the Government and drawing

4    all reasonable inferences in its favor, it finds that no

5    rational trier of fact could have concluded that the

6    Government met its burden of proof.”   United States v.

7    Triumph Capital Group, Inc., 544 F.3d 149, 158 (2d Cir.

8    2008) (internal citations and quotation marks omitted); see

9    also United States v. Florez, 447 F.3d 145, 154 (2d Cir.

10   2006) (“We review de novo a district court’s denial of a

11   Rule 29 motion, applying the same standard of sufficiency as

12   the district court.”).

13       Melo cannot satisfy this burden here.   Melo points to

14   testimony suggesting that the planners of the attempted

15   robbery thought it would target a willing victim, who was in

16   reality their accomplice; therefore, he argues, the crime

17   was unlikely to involve violence.   However, the robbery crew

18   clearly accounted for the strong possibility that the

19   willing-victim accomplice might be accompanied; that the

20   public scene of the crime (a supermarket parking lot in

21   Manhattan) would have bystanders who might intervene and

22   need to be overcome; or that the willing-victim accomplice

23   would change his mind.   The ringleader brought four men

24   (including Melo) and several weapons, including a loaded

                                   3
1    gun, to commit the robbery.     As the district court observed

2    when denying the Rule 29 motion, “if the robbery was

3    supposed to be of a willing victim then you wonder why did

4    you need guns and knives.     They could have gone in there and

5    simply said, ‘hand over the stuff.’”     One inference

6    available to the jury was that Melo attempted to commit a

7    crime of actual or threatened violence.     Cf. United States

8    v. Skowronski, 968 F.2d 242, 247 (2d Cir. 1992), overruled

9    by statute on other grounds as stated in United States v.

10   Amato, 46 F.3d 1255, 1261 (2d Cir. 1995).     Melo’s attempted

11   Hobbs Act robbery conviction and the associated firearm

12   conviction (which he only challenges as subsidiary to the

13   Hobbs Act conviction) are affirmed.

14       Acosta was convicted of (among other things) conspiracy

15   to commit armed robberies under the Hobbs Act.     See 18

16   U.S.C. § 1951.   The conspiracy charge in the indictment

17   alleged as overt acts that Acosta committed four robberies

18   or attempted robberies in furtherance of the conspiracy.

19   The district court found that the government proved beyond a

20   reasonable doubt that Acosta conspired to commit each of the

21   four robberies, and calculated Acosta’s Sentencing Guideline

22   range accordingly.   Acosta argues that the district court’s

23   finding was procedurally unreasonable because it did not

24   take into account the jury’s not guilty verdict as to the

                                     4
1    August 2003 robbery, see United States v. Vaughn, 430 F.3d

2    518, 527 (2d Cir. 2005) (“[D]istrict courts should consider

3    the jury’s acquittal when assessing the weight and quality

4    of the evidence presented by the prosecution and determining

5    a reasonable sentence.”), and did not take into account the

6    absence of a jury verdicts on the other robberies.

7        These arguments are unavailing.     The district court

8    acknowledged that the jury acquitted Acosta of one of the

9    underlying robberies before finding the relevant facts.      A

10   district court can determine for sentencing purposes that a

11   defendant conspired to commit an offense even after the jury

12   has acquitted on the substantive offense.    See United States

13   v. Robles, 562 F.3d 451, 457 (2d Cir. 2009).    We review the

14   district court’s factual findings for clear error.    See

15   United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir. 2005).

16   Under this standard, there was sufficient evidence to

17   support the district court’s finding.

18       Finding no merit in either Acosta or Melo’s remaining

19   arguments, we hereby AFFIRM the judgments of the district

20   court.

21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
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