14-1633-cr
United States v. Aponte


                           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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 7th day of March, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                               No. 14-1633-cr

HECTOR APONTE, AKA “Green Eyes,”
                                 Defendant-Appellant.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          JAMES A. NAPIER, Napier & Napier,
                                                  Rochester, New York.

APPEARING FOR APPELLEE:                          JOSEPH J. KARASZEWSKI, Assistant United
                                                 States Attorney, for William J. Hochul, Jr.,
                                                 United States Attorney for the Western District
                                                 of New York, Buffalo, New York.

          Appeal from a judgment of the United States District Court for the Western

District of New York (Charles J. Siragusa, Judge).



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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 25, 2014, is AFFIRMED.

       Defendant Hector Aponte stands convicted after a guilty plea of distributing more

than 50 grams of cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(B); possessing with

intent to distribute cocaine and more than 50 grams of cocaine base, see id. § 841(a)(1),

(b)(1)(B), (b)(1)(C); possessing more than 5 grams of cocaine base, see id. § 844(a), and

maintaining a place to manufacture and distribute cocaine and cocaine base, see id.

§ 856(a)(1), (b). On appeal, he challenges his low-end Guidelines prison sentence of

262 months as procedurally and substantively unreasonable, claims to which we apply “a

particularly deferential form of abuse-of-discretion review.” United States v. Cavera,

550 F.3d 180, 187–88 & n.5 (2d Cir. 2008) (en banc); accord United States v.

Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012).1 In doing so, 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.     Procedural Reasonableness

       Aponte argues that the district court committed procedural error in calculating his

Guidelines range and refusing to grant a downward departure therefrom based on his

lengthy pre-trial confinement, post-offense conduct, family hardship, and health

problems.   See United States v. Cavera, 550 F.3d at 190.          But in the absence of

1
  To the extent Aponte seeks to preserve a claim of ineffective assistance of counsel, we
decline to address it on this record, consistent with our preference for hearing such claims
on collateral review. See Massaro v. United States, 538 U.S. 500, 504 (2003).
Accordingly, we dismiss that claim without prejudice to Aponte presenting it on a 28
U.S.C. § 2255 petition if he so chooses.

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miscalculation, the decision not to grant a downward departure will not support a claim

of procedural error unless the district judge clearly misapprehended the scope of his

departure authority. See, e.g., United States v. Jackson, 658 F.3d 145, 153–54 (2d Cir.

2011).        Because no such misapprehension is evident here, we focus on alleged

Guidelines miscalculations in reviewing Aponte’s procedural challenge.

         a.      Acceptance of Responsibility

         Aponte maintains that he was entitled to a two-point offense level reduction for

acceptance of responsibility based on his timely guilty plea, which permitted the

government to avoid preparing for trial. See U.S.S.G. § 3E1.1(a). A defendant who

pleads guilty is not automatically entitled to a § 3E1.1(a) adjustment, see United States v.

Kumar, 617 F.3d 612, 635 (2d Cir. 2010) (citing U.S.S.G. § 3E1.1 cmt. n.3), and the

“‘great deference’” we accord the district court’s determination in this respect, United

States v. Zhuang, 270 F.3d 107, 110 (2d Cir. 2001) (quoting U.S.S.G. § 3E1.1 cmt. n.5),

will not be disturbed unless it is “without foundation,” United States v. Ubiera, 486 F.3d

71, 77 (2d Cir. 2007) (internal quotation marks omitted). The record here admits no

such conclusion. As the district court explained, by disputing that $24,000 recovered

from his house represented drug proceeds, Aponte effectively denied relevant conduct

proved by a preponderance of the evidence, which is inconsistent with acceptance of

responsibility. See U.S.S.G. § 3E1.1 cmt. n.1(A).2

         United States v. Lee, 653 F.3d 170 (2d Cir. 2011), cited by Aponte, warrants no

different result. In Lee, we held that the government could not refuse to move for an

2
    Aponte does not challenge the district court’s preponderance finding on appeal.

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additional one-level reduction under § 3E1.1(b)—available only to defendants who

satisfy § 3E1.1(a)—based on the defendant’s demand for a Fatico hearing to resolve a

disputed sentencing issue. Id. at 172. Here, Aponte did not simply request a hearing

as to the source of the seized money. Rather, he falsely represented that the money was

not drug proceeds but the legitimate assets of his father.        Such circumstances are

distinguishable from Lee and sufficient to provide the necessary foundation for the

district court to exercise its discretion in denying a § 3E1.1(a) adjustment. Cf. United

States v. McKay, 183 F.3d 89, 96 (2d Cir. 1999) (“[I]f someone . . . were to say ‘John

Smith did it, not me,’ when in fact John Smith was not involved, such a statement . . .

would be more than a simple denial of guilt and could be treated as an obstruction of

justice.” (internal quotation marks omitted)).

       b.     Obstruction Enhancement

       Relying on United States v. Pena, 751 F.3d 101 (2d Cir. 2014), Aponte challenges

the district court’s application of a two-level enhancement for obstruction of justice under

U.S.S.G. § 3C1.1 based on his attribution of the $24,000 to his father.

       Pena holds that an adverse credibility determination can support an obstruction

determination only upon a finding of willful falsity. Obstruction is not evident where a

defendant “may have reasonably believed that his statements were true,” whether because

of misunderstanding, a lapse in memory, or otherwise. See id. at 106–07. No such

“confusion, mistake, or faulty memory” is evident here. Id. at 105 (internal quotation

marks omitted). Aponte’s representation that the money belonged to his father and was

not tied to drug transactions (1) admitted no ambiguity, (2) was made through his

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attorney, and (3) repeated on several occasions, (4) notwithstanding the district court’s

warnings as to the consequence of maintaining this untenable position. Aponte argues

that because the money could have been partly his and partly his father’s, “the denial that

it was all the defendant’s would not be false.” Appellant Br. 18–19. This argument is

defeated by the record, wherein Aponte denied that the $24,000 was tied to him “in any

way.” J.A. 92. In these circumstances, the district court did not clearly err in finding

that Aponte’s false representations in court and to his probation officer were made

willfully and with the intent to mislead. See United States v. Pena, 751 F.3d at 105

(stating standard of review).3

       Insofar as Aponte argues that application of the obstruction enhancement punished

him for exercising his constitutional right to require the government prove its case, he

misrepresents the nature of his conduct.      The district court determined that Aponte

impeded the administration of justice not because he objected to the presentence

investigation report, but because he repeatedly and dishonestly insisted that the $24,000

3
  In a letter submitted pursuant to Fed. R. App. P. 28(j), Aponte points to our recent
decision in United States v. Young, --- F.3d ----, 2016 WL 362604 (2d Cir. Jan. 29,
2016), arguing that, as in Young, the district court made no record finding that he
specifically intended to obstruct justice. Because we required such a finding long before
Young, see, e.g., United States v. Brown, 321 F.3d 347, 351–52 (2d Cir. 2003); United
States v. Reed, 49 F.3d 895, 902 (2d Cir. 1995), Aponte’s failure to raise this claim in his
briefs renders the argument forfeited, cf., e.g., Sompo Japan Ins. Co. of Am. v. Norfolk S.
Ry. Co., 762 F.3d 165, 175 n.18 (2d Cir. 2014). In any event, Aponte’s reliance on
Young is misplaced, where, as here, the district court explicitly acknowledged this
requirement, see J.A. 101–02, and the record reflects that Aponte made this false
representation not only to a probation officer, see Presentence Investigation Report ¶ 30,
but also in open court, see J.A. 135–36. Cf. United States v. Young, 2016 WL 362604,
at *8 (remanding sentence where district court found “no need to articulate [defendant’s]
motivation in speaking falsely” during interview with probation officer (internal
quotation marks omitted)).

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belonged to his father. See generally United States v. McKay, 183 F.3d at 96. Such

deliberate and material falsehoods easily fell within the scope of U.S.S.G. § 3C1.1. See

id. § 3C1.1 cmt. n.4(F) (providing “materially false information to a judge”), (H)

(providing “materially false information to a probation officer in respect to a presentence

or other investigation for the court”).

       Accordingly, because we identify no Guidelines calculation error, Aponte’s claim

of procedural unreasonableness fails on the merits.4

2.     Substantive Reasonableness

       Aponte somewhat perfunctorily challenges his 262-month, low-end Guidelines

sentence as “severe,” arguing that a sentence closer to the 120-month mandatory

minimum would be “the least severe punishment necessary” to do justice. Appellant Br.

21. Because the law recognizes a broad range of sentences as substantively reasonable,

see United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008), a reviewing court will not

set aside a sentence as substantively unreasonable except “in exceptional cases where the

trial court’s determination cannot be located within the range of permissible decisions,”

United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted).              A


4
  Aponte also requests, without further elaboration, “that he be classified a level 30 under
the new drug quantity table.” Appellant Br. 15. Ordinarily, issues adverted to in such
perfunctory manner, “unaccompanied by some effort at developed argumentation,” are
waived. United States v. Botti, 711 F.3d 299, 313 (2d Cir. 2013). In any event, even if
Aponte were entitled to a two-level reduction in total offense level as a result of
Guidelines Amendment 782, see U.S.S.G. § 2D1.1(c) (2015), he cannot demonstrate that
his sentence is procedurally unreasonable because the district court referenced the
amendment’s anticipated reduction and stated that it would have imposed the same
sentence regardless, see J.A. 177; see also United States v. Jass, 569 F.3d 47, 68 (2d Cir.
2009).

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within-Guidelines sentence will rarely be held to fall outside the permissible range. See

United States v. Broxmeyer, 699 F.3d at 299. The “few cases” raising substantive

concerns are those in which the sentence is so “shockingly high, shockingly low, or

otherwise unsupportable as a matter of law” that allowing them to stand would “damage

the administration of justice.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

That is not this case.   In considering the nature and seriousness of Aponte’s offense, see

18 U.S.C. § 3553(a)(1), (a)(2)(A), the district court observed that Aponte operated a

large-scale drug trafficking operation, see J.A. 167, 175, the nature and extent of which

was underestimated by the Guidelines calculation, see id. at 168. The district court

further explained that Aponte’s history illustrated that he “knew what he was getting

into,” id. at 175, in light of his prior felony convictions for drug sales and weapon

possession—which, the district court noted, were offenses Aponte committed while on

probation, see id. at 166, indicating a heightened need to protect the public and promote

respect for the law. See 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(C). Under these

circumstances, we reject Aponte’s claim of substantive unreasonableness as meritless.

3.     Conclusion

       We have considered Aponte’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

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




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