14-4368
     United States v. Ramos-Nunez

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of February, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RICHARD C. WESLEY,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-4368
16
17       HERRY RAMOS-NUNEZ,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLEE:                         EUN YOUNG CHOI (Michael A. Levy on
22                                             the brief), Assistant United
23                                             States Attorneys, for Preet
24                                             Bharara, United States Attorney
25                                             for the Southern District of New
26                                             York.
27


                                                  1
 1   FOR APPELLANT:             BRIAN E. SPEARS, Brian Spears LLC,
 2                              Southport, Connecticut.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Broderick, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Herry Ramos-Nunez appeals from the judgment of
12   conviction and sentence of the United States District Court
13   for the Southern District of New York (Broderick, J.). We
14   assume the parties’ familiarity with the underlying facts,
15   the procedural history, and the issues presented for review.
16
17        1.   Ramos-Nunez argues that the district court failed
18   to fully investigate and remedy purported premature
19   deliberations by two jurors who were overheard discussing
20   the case in the bathroom during trial. “The handling of
21   allegations of juror misconduct is entrusted to the sound
22   discretion of the trial court.” United States v. Thai, 29

, 803 (2d Cir. 1994). Where, as here, a defendant
24   agrees to a proposed procedure for dealing with a juror
25   issue, he waives any subsequent challenge and appellate
26   review is barred. See United States v. Peterson, 

  127, 138-39 (2d Cir. 2004) (where judge “met with defense
28   counsel to discuss how he should proceed” on issue of juror
29   misconduct, and “[n]either defense counsel objected to his
30   proceeding outside the presence of the defendants,”
31   defendants had “waived their right” to claim error on
32   appeal, and permitting claim would “only encourage
33   sandbagging” (internal quotation marks omitted)); United
34   States v. Alvarez, 601 F. App’x 16, 19 (2d Cir. 2015) (where
35   defendant “contemporaneously consented to the district
36   court’s approach” of giving a curative instruction to
37   address potential jury bias, and “contributed to the
38   crafting of that instruction,” defendant “waived” argument
39   that jurors should have been questioned and “cannot raise it
40   on appeal”).
41
42        Ramos-Nunez was invited to propose measures to deal
43   with the overheard statements, and was alerted to the
44   possibility that the district court might speak to the
45   jurors with the parties’ approval, a course of action he now
46   contends should have been done. Instead, his counsel
47   suggested that the district court give a “firm instruction,”

                                  2
 1   worked with the Government to craft such an instruction,
 2   which was given, and never objected to the district court’s
 3   approach or requested that the district court conduct any
 4   further investigation or take any further action. Under
 5   these circumstances, any challenge to the handling of the
 6   two jurors is waived and cannot be raised on appeal.
 7
 8        2.   Ramos-Nunez challenges the ruling that he was not
 9   eligible under 18 U.S.C. § 3553(f) for “safety-valve” relief
10   from the minimum prison sentence statutorily mandated for
11   his heroin conspiracy conviction. See 21 U.S.C.
12   § 841(b)(1)(B)(i). Of the five requirements for
13   safety-valve relief, the one here at issue required Ramos-
14   Nunez, by the time of sentencing, to have disclosed to the
15   government “all information and evidence [he had] concerning
16   the offense [of conviction] or offenses that were part of
17   the same course of conduct or of a common scheme or plan.”
18   18 U.S.C. § 3553(f)(5). Ramos-Nunez bore the burden of
19   proving by a preponderance that he had satisfied this
20   requirement. See United States v. Jimenez, 

,
21   102–03 (2d Cir. 2006). We review the district court's
22   factual finding that he did not do so only for clear error,
23   see United States v. Ortiz, 

, 883 (2d Cir.
24   1997), which is not present here.
25
26        In his proffer, Ramos-Nunez attempted to minimize his
27   involvement in the conspiracy, claiming that he had no
28   experience in the drug trade and that all of his statements
29   to the confidential informant were scripted by his
30   coconspirator. The facts at trial painted a different
31   picture. Ramos-Nunez indisputably offered to sell a
32   kilogram of “black Mexican heroin,” an offer -– irrespective
33   of whether any such heroin existed –- that Ramos-Nunez never
34   claimed had been scripted for him.1 Moreover, the district
35   court identified other facts showing that Ramos-Nunez was
36   more deeply involved in the conspiracy than he had been
37   willing to admit: Ramos-Nunez’s claim to having delivered
38   400 grams of heroin in the Bronx; his discussion of the best
39   places in New York City to deal drugs; and his description


         1
              Understood properly, the district court’s finding
     that this offer took place was not at all factually
     divergent from its later finding that there was insufficient
     evidence to prove that the black Mexican heroin actually
     existed, even if, given the distinct burdens present in each
     question, such a divergence were relevant.
                                  3
 1   of how his sources smuggled heroin into the United States
 2   using porcelain jars. Faced with these discrepancies, which
 3   are adequately supported by the record, the district court
 4   did not err in denying application of safety-valve relief to
 5   Ramos-Nunez.
 6
 7        3.   Ramos-Nunez argues that the district court erred
 8   in determining the relevant drug quantity for purposes of
 9   calculating his Sentencing Guidelines offense level. A
10   district court is permitted to find a greater drug quantity
11   at sentencing than the jury found at trial. See, e.g.,
12   United States v. Vaughn, 

, 526-27 (2d Cir. 2005)
13   (“[T]here is no logical inconsistency in determining that a
14   preponderance of the evidence supports a finding about which
15   there remains a reasonable doubt.”).
16
17        Ramos-Nunez argues that the district court “failed to
18   consider” the jury’s drug quantity finding. However, the
19   judge observed several times at sentencing that the jury
20   found Ramos-Nunez guilty of conspiracy to distribute 100
21   grams or more. But the district court used its own analysis
22   and applied the less burdensome preponderance standard to
23   conclude that the evidence at trial established that, during
24   a meeting at a diner, Ramos-Nunez and a coconspirator agreed
25   to sell a total of 1.7 kilograms of heroin in two
26   transactions. Of the 1.7 kilograms of heroin they planned
27   to sell, 700 grams were physically seized when they
28   attempted to sell them. Accordingly, the district court did
29   not err in attributing more than a kilogram of heroin to
30   Ramos-Nunez for Guidelines purposes.
31
32        For the foregoing reasons, and finding no merit in
33   Ramos-Nunez’s other arguments, we hereby AFFIRM the judgment
34   of the district court.
35
36                              FOR THE COURT:
37                              CATHERINE O’HAGAN WOLFE, CLERK
38




                                  4