     16-227
     United States v. Fernandes

                         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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   3rd day of April, two thousand seventeen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            CHRISTOPHER F. DRONEY,
 8                          Circuit Judges,
 9            TIMOTHY C. STANCEU,
10                          Chief Judge, U.S. Court of Int’l Trade.*
11   - - - - - - - - - - - - - - - - - - - -X
12
13   United States of America,
14            Appellee,
15
16                -v.-                                           16-227
17
18   Andrej Konopski, Mindy A. Konopski,
19            Defendants,
20
21   Jonathan Fernandes,
22            Defendant-Appellant.
23
24
25   - - - - - - - - - - - - - - - - - - - -X
     *
       Judge Timothy C. Stanceu, Chief Judge of the United States Court
     of International Trade, sitting by designation.

                                                1
 1   FOR APPELLANT:               Robert G. Smith, Jay S. Ovsiovitch,
 2                                Federal Public Defender’s Office,
 3                                Western District of New York,
 4                                Rochester, NY.
 5
 6   FOR APPELLEE:                Monica J. Richards, Assistant
 7                                United States Attorney, for James
 8                                P. Kennedy, Jr., Acting United
 9                                States Attorney for the Western
10                                District of New York, Buffalo, NY.
11
12        Appeal from a judgment of the United States District Court
13   for the Western District of New York (Wolford, J.).

14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
15   DECREED that the judgment of the district court be AFFIRMED.

16        Jonathan Fernandes appeals from a criminal judgment and an
17   order of forfeiture entered in the United States District Court
18   for the Western District of New York (Wolford, J.). Fernandes
19   was convicted on eleven counts (and acquitted on three), and
20   was sentenced principally to a 240-month term of incarceration.
21   The district judge also ordered the forfeiture of thirteen
22   firearms seized from Fernandes’s home. Fernandes challenges
23   the forfeiture order, and also the sufficiency of the evidence
24   and the reasonableness of the sentence with respect to a single
25   count of conviction--namely, aiding and abetting witness
26   tampering in violation of 18 U.S.C. § 1512(b)(1) and (2). We
27   assume the parties’ familiarity with the underlying facts, the
28   procedural history, and the issues presented for review.

29         1. “We review challenges to the sufficiency of evidence
30   de novo.” United States v. Pierce, 785 F.3d 832, 837 (2d Cir.
31   2015). A defendant challenging the sufficiency of evidence
32   takes up a heavy burden because “we view the evidence in the
33   light most favorable to the government, drawing all inferences
34   in the government’s favor and deferring to the jury’s assessments
35   of the witnesses’ credibility.” Id. at 838. “We will sustain
36   the jury’s verdict if any rational trier of fact could have found
37   the essential elements of the crime beyond a reasonable doubt.”
38   Id. (internal quotation marks omitted) (emphasis omitted).
39   “The jury may reach its verdict based upon inferences drawn from

                                    2
 1   circumstantial evidence,” and on review, “the evidence must be
 2   viewed in conjunction, not in isolation.” United States v.
 3   Persico, 645 F.3d 85, 104 (2d Cir. 2011) (quotation marks
 4   omitted).

 5        To prove witness tampering in violation of 18 U.S.C.
 6   § 1512(b)(1), the government must establish that the defendant
 7   “knowingly use[d] intimidation, threaten[ed], or corruptly
 8   persuade[ed] another person, or attempt[ed] to do so . . . with
 9   intent to influence, delay, or prevent the testimony of any
10   person in an official proceeding.” And any person who “aids,
11   abets, counsels, commands, induces or procures” the commission
12   of such a crime “is punishable as a principal.” 18 U.S.C. § 2(a).
13   “As at common law, a person is liable under § 2 for aiding and
14   abetting a crime if (and only if) he (1) takes an affirmative
15   act in furtherance of that offense, (2) with the intent of
16   facilitating the offense’s commission.” Rosemond v. United
17   States, 134 S. Ct. 1240, 1245 (2014); see also Hicks v. United
18   States, 150 U.S. 442, 449 (1893) (accomplice liability attaches
19   to conduct done “with the intention of encouraging and abetting”
20   the crime).

21        At trial, the government introduced recordings of telephone
22   conversations between Fernandes and his co-defendants while
23   Fernandes was in custody. In one of them, his co-defendants (who
24   took turns on the line) referred to a court document pertaining
25   to an inmate who was cooperating against Fernandes. One
26   co-defendant said, “what I would like to do bub is, I mean if
27   it is alright with you, I would like to make about 25 copies
28   of this . . . and just send them to about 25 guys up in Greene
29   just randomly up in Greene Correctional.” Appellant Br. 29-30
30   (citation omitted). Fernandes replied, “[t]here you go, do it,
31   do it.” Id. at 30. The co-defendant said, “that’s all I want
32   to know,” and Fernandes said, “[y]ep, fuck yeah, do it.” Id.
33   When his other co-defendant asked again whether he was ok with
34   the plan, Fernandes replied, “[y]eah, yeah do that.” Id.

35        Fernandes argues that he “may have had an interest in the
36   outcome of” the plan to intimidate or harm a cooperating witness,
37   but that “he did not actively participate in it being carried
38   out.” Id. His words, however, were enough. “In proscribing
39   aiding and abetting, Congress used language that ‘comprehends

                                    3
 1   all assistance rendered by words, acts, encouragement, support,
 2   or presence’ . . . .” Rosemond, 134 S. Ct. at 1246 (quoting Reves
 3   v. Ernst & Young, 507 U.S. 170, 178 (1993)). Fernandes not only
 4   encouraged the crime, he authorized it. He may not have devised
 5   the plan or personally carried it out, but his co-defendant
 6   described it to him with the caveat “if it is alright with you”;
 7   and when Fernandes assented, the co-defendant said, “that’s all
 8   I want to know.” When his other co-defendant double-checked
 9   that the plan was acceptable to him, Fernandes said, “Yeah, yeah
10   do that.” His co-defendants proposed the crime and sought
11   Fernandes’s approval. He unambiguously provided it. Viewed in
12   the light most favorable to the government, the evidence was
13   easily sufficient for a reasonable jury to find Fernandes guilty
14   of aiding and abetting witness tampering.1

15        2.   We review sentences imposed by the district court for
16   reasonableness, which includes procedural and substantive
17   dimensions. Gall v. United States, 552 U.S. 38, 51 (2007). A
18   district court errs procedurally when it fails to calculate or
19   miscalculates the Sentencing Guidelines range, treats the
20   Guidelines as mandatory, fails to consider the sentencing
21   factors required by 18 U.S.C. § 3553(a), or does not adequately
22   explain the sentence. Id. Substantive reasonableness is
23   reviewed for abuse of discretion. Id.

24        Fernandes argues that a 240-month sentence (the statutory
25   maximum) is substantively unreasonable for witness tampering,
26   especially in light of the shorter sentences imposed on his
27   co-defendants; and he argues that it is procedurally
28   unreasonable because the district judge failed to explain it
29   adequately. His arguments fundamentally misunderstand the role
30   of the witness-tampering conviction in the sentence. Fernandes
31   was not sentenced to 240 months on the witness tampering
32   conviction alone; he was sentenced to a total term of 240 months
33   for all eleven counts of conviction.

34        Under USSG § 3D1.2(c), counts of conviction are “grouped”
35   together if one of them “embodies conduct that is treated as
     1
       That the plan to intimidate the cooperating witness may not have
     been carried out the way Fernandes and his codefendants had discussed
     during the phone conversation is of no moment, as § 1512(b)(1)
     criminalizes attempted witness tampering.

                                      4
 1   a specific offense characteristic in, or other adjustment to,
 2   the guideline applicable to another” of them. That applies here
 3   because the guideline applicable to the drug counts includes
 4   a two-point offense-level increase if the defendant both
 5   receives an aggravating-role adjustment under § 3B1.1 (Fernandes
 6   did) and also “engaged in witness intimidation . . . or otherwise
 7   obstructed justice in connection with the investigation or
 8   prosecution of the offense.” USSG § 2D1.1(b)(15)(D). Since the
 9   witness-tampering count is included as a specific offense
10   characteristic of the drug counts, those counts are “grouped”
11   together; and under USSG § 3D1.3(a), the offense level of the
12   group is that of the highest offense level of the counts within
13   it. In this case, that is the drug counts, which are driven by
14   drug quantity and effectively “swallow” the witness-tampering
15   count. The only effect of the latter is therefore the two-point
16   offense-level increase, which resulted in no more than a
17   one-point increase because the total offense level with the
18   two-point increase was one point higher than the maximum possible
19   43.

20        In sum, the witness-tampering count brought the offense
21   level to 43, resulting in a guidelines sentence of life
22   imprisonment, rather than an offense level of 42 and a guidelines
23   range of 360 months to life. The actual sentence imposed was
24   a total term of 240 months on all counts--the statutory maximum
25   sentence for the witness tampering count on its own, but a
26   substantial downward departure in terms of the total sentence
27   in either case. Fernandes has not shown any procedural error
28   or substantive unreasonableness in that sentence.

29        3.   Fernandes contends that the district court erred by
30   finding a nexus between the crimes of conviction and the seized
31   firearms pursuant to 18 U.S.C. §§ 924(d) and 3665, and that the
32   order of forfeiture should be vacated. “Because criminal
33   forfeiture is viewed as part of the sentencing process, the
34   government need prove facts supporting forfeiture only by a
35   preponderance of the evidence. We review the district court’s
36   factual findings for clear error and its legal conclusions de
37   novo.” United States v. Gaskin, 364 F.3d 438, 461-62 (2d Cir.
38   2004) (citations omitted).

39


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 1        At Fernandes’s sentencing, the district court found by a
 2   preponderance of the evidence that his residence was used for
 3   the manufacture and distribution of methamphetamines; that all
 4   thirteen firearms that were seized from the residence were
 5   readily accessible and in close proximity to the drug trafficking
 6   operation;2 that most were loaded; and that Fernandes would have
 7   a gun with him whenever an unknown person arrived. The firearms
 8   were in proximity to the manufacture and sale of methamphetamines
 9   and were visible to persons who entered the residence to purchase
10   methamphetamines or to assist in its manufacture. “It is
11   axiomatic that drug dealing and guns go hand in hand.” United
12   States v. Bermudez, 529 F.3d 158, 170 (2d Cir. 2008) (Underhill,
13   J., concurring in part and dissenting in part). Even accepting
14   as true Fernandes’s argument that he used (at least some of)
15   the weapons for skeet shooting or other sporting purposes, the
16   district court’s finding that all of the weapons were involved
17   in and facilitated Fernandes’s drug crimes was not clearly
18   erroneous.

19        Accordingly, and finding no merit in appellant’s other
20   arguments, we hereby AFFIRM the judgment of the district court.

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




     2
      As the district court explained, three of the firearms were located
     on a work bench in Fernandes’s garage near numerous items related
     to the manufacturing of methamphetamines. Nine of the firearms were
     located in Fernandes’s bedroom, which was the epicenter of the drug
     manufacturing activity. Of the firearms in the bedroom, one was
     leaning against the desk where the drugs were weighed and distributed,
     one was strapped to the side of that desk, and the others were visibly
     displayed on the back wall. The final firearm, which was seized during
     the execution of the second search warrant at Fernandes’s home, was
     the weapon that Fernandes had taken with him when he fled the scene
     before law enforcement arrived to execute the first search warrant.

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