12-2555-cr
United States v. Hidalgo



                               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
4th day of June, two thousand thirteen.

Present:
            RALPH K. WINTER,
            PETER W. HALL,
            GERARD E. LYNCH,
                        Circuit Judges.
____________________________________________________

United States of America,

                           Appellee,

                 v.                                                         No. 12-2555-cr

Carlos Hidalgo, AKA Carlos Gomez, AKA Carlos Rodriguez,

                           Defendant-Appellant,

Elias Jimenez, AKA Moreno, AKA Elias Jiminez, AKA Ramadan
Rodriguez, AKA Elbi Rodriguez, Juan Rosado-Caraballo, AKA
Juan Tony Caraballo,

                  Defendants.
____________________________________________________


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FOR APPELLANT:                 Lawrence Gerzog, New York, NY.

FOR APPELLEE:           Shane T. Stansbury and Andrew L. Fish, Assistant United States
                        Attorneys, for Preet Bharara, United States Attorney for the
                        Southern District of New York, New York, NY.
____________________________________________________

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

New York (Scheindlin, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Carlos Hidalgo appeals from the district court’s judgment

sentencing him principally to 60 months’ imprisonment after he pled guilty to conspiring to

distribute 3, 4-methylenedioxymethamphetamine, commonly referred to as MDMA or Ecstasy,

and 1-benzylpiperazine, commonly referred to as BZP, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), and 846. On appeal, Hidalgo challenges the procedural reasonableness of his

sentence, arguing that the district court based his sentence on a clearly erroneous factual finding

as to the quantity of narcotics involved in his offense and erroneously declined to apply a

mitigating role adjustment under U.S.S.G. § 3B1.2(b) and a downward departure under U.S.S.G.

§ 4A1.3(b)(2). We assume the parties’ familiarity with the underlying facts and the procedural

history of the case.

I.     Drug Quantity Finding

       “[T]he [district] court’s underlying factual findings with respect to sentencing,

established by a preponderance of the evidence, are reviewed for clear error.” United States v.

Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (internal quotation marks omitted). “In deciding upon a

sentence, a district court has the discretion to rely on the wide array of facts before it, including

information set forth in the pre-sentence report, as well as evidence that would not be admissible

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at trial, so long as the defendant is given an opportunity to contest the accuracy of that

information.” Id.

       There is no basis to determine that the district court clearly erred in finding that Hidalgo

was accountable for 8,000 pills containing MDMA and BZP, which it determined to be the

equivalent of between 100 and 400 kilograms of marijuana for the purpose of calculating the

applicable Guidelines range. Contrary to Hidalgo’s argument, the court’s finding that he had

negotiated to sell 7,000 pills to a confidential informant was supported by the Presentence

Investigation Report (“PSR”), which the court properly relied on at the sentencing hearing and

properly adopted in the written statement of reasons for its sentence. See United States v.

Highsmith, 688 F.3d 74, 77-78 (2d Cir. 2012) (“[A] district court satisfies its obligation to make

the requisite factual findings when it indicates in its written judgment that it is adopting the

findings set forth in the PSR.” (internal quotation marks omitted)). Moreover, while Hidalgo

correctly notes that a confidential informant cannot be considered a co-conspirator in this

context, see United States v. Vazquez, 113 F.3d 383, 387 (2d Cir. 1997), the record supports a

finding that Hidalgo’s conduct in negotiating to sell narcotics to the informant was part of an

underlying conspiracy involving other individuals. Hidalgo’s challenges to the district court’s

drug quantity finding are thus unavailing.

II.    Mitigating Role Adjustment and Criminal History Departure

       Under U.S.S.G. § 3B1.2, reducing a defendant’s offense level is appropriate if he was a

“minimal” or “minor” participant in criminal activity. “[I]n determining the appropriate

standard of review of a district court’s application of the Guidelines to the specific facts of a

case, this Court follows an either/or approach, adopting a de novo standard of review when the

district court’s application determination was primarily legal in nature, and adopting a clear error



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approach when the determination was primarily factual.” United States v. Hsu, 669 F.3d 112,

120 (2d Cir. 2012) (internal quotation marks omitted). In contrast to offense level adjustments, a

district court’s “refusal to downwardly depart [under the Guidelines] is generally not

appealable.” United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per curiam) (internal

quotation marks omitted). Appellate review of such a determination is available “only when a

sentencing court misapprehended the scope of its authority to depart or the sentence was

otherwise illegal.” Id. (internal quotation marks omitted).

        Here, regardless of which standard of review applies, the district court properly declined

to apply a mitigating role adjustment under § 3B1.2(b) on the ground that Hidalgo was no less

culpable than his codefendants or the average “middleman” in a drug distribution conspiracy.

See Suppl. App’x at 13-14; United States v. Neils, 156 F.3d 382, 383 (2d Cir. 1998) (per curiam)

(“Under U.S.S.G. § 3B1.2, the district court is required to gauge the appellant’s culpability

relative to the elements of the offense of conviction as well as in relation to the co-

conspirators.”). While Hidalgo asserts that he was a mere “steerer” in that he introduced the

confidential informant to one of his co-conspirators, as noted above, the district court did not

clearly err in finding that he had directly negotiated a narcotics transaction with the informant as

part of the conspiracy at issue. Finally, there is no indication that the district court

misunderstood the scope of its authority to impose a downward departure under § 4A1.3(b) on

the ground that Hidalgo’s criminal history category substantially overrepresented the seriousness

of his criminal history. The court’s decision declining to impose such a departure, therefore, is

not appealable. See Stinson, 465 F.3d at 114.




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       We have considered Hidalgo’s remaining arguments on appeal and find them to be

without merit. The judgment of the district court is AFFIRMED.



                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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