09-4245-cr, 09-4902-cr, 10-991-cr
United States v. Sanchez


                                    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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5th day of April, two thousand eleven.

PRESENT: JOSEPH M. McLAUGHLIN,
         GERARD E. LYNCH,
                        Circuit Judges,
         JED S. RAKOFF,
                        District Judge.*

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UNITED STATES OF AMERICA,
                        Appellee,

                                v.                        Nos. 09-4245-cr, 09-4902-cr, 10-991-cr

ROBERTO SANCHEZ, MILTON SAMUELS, LENROY McLEAN, aka
Officer/Department of Correction Dean,
                                 Defendants-Appellants.

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FOR APPELLANTS:                        JOHN A. CIRANDO (Bradley E. Keem, Elizabeth deV.
                                       Moeller, Vicki Jo Beighley, on the brief), D.J. & J.A.
                                       Cirando, Esqs., Syracuse, New York, for Roberto Sanchez.

                                       D. CRAIG HUGHES, Houston, Texas, for Milton Samuels.

          *
         The Honorable Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
                             B. ALAN SEIDLER, New York, New York, for Lenroy
                             McLean.

FOR APPELLEE:                RANDALL W. JACKSON, Assistant United States Attorney
                             (Jesse M. Furman, Assistant United States Attorney, on the
                             brief) for Preet Bharara, United States Attorney for the
                             Southern District of New York, New York, New York.

       Appeal from the United States District Court for the Southern District of New

York (Richard J. Sullivan, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of the district court are AFFIRMED.

       These consolidated appeals arise from the 2008 investigation and prosecution of a

major cocaine distribution ring that operated out of New York and New Jersey. Roberto

Sanchez pleaded guilty to conspiring to distribute cocaine, see 21 U.S.C. § 846, and was

sentenced to 240 months’ incarceration, 60 months’ supervised release, and a fine of one

million dollars. A jury convicted Milton Samuels and Lenroy McLean of the same

conspiracy charge and also convicted Samuels of possessing a firearm during and in

relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i). Samuels was

sentenced to 276 months’ incarceration, supervised release for life, and forfeiture of six

million dollars, and McLean to 228 months’ incarceration and 60 months’ supervised

release. All three appeal.

I.     Trial Issues

       Samuels and McLean contest the sufficiency of the evidence supporting their

convictions. “We will not disturb the conviction[s] if, viewing the evidence in the light

most favorable to the government, any rational trier of fact could have found the essential
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elements of the crime[s] beyond a reasonable doubt.” United States v. Greer, 

, 613 (2d Cir. 2011) (quotation marks omitted). That standard is amply satisfied here.

In addition to other evidence, a witness testified directly to their involvement in the

conspiracy and to the foreseeable quantity of drugs connected with it. This testimony is

enough to sustain their convictions, despite the appellants’ attack on the credibility of the

witness, because on a sufficiency challenge “we defer to the jury’s assessment of witness

credibility.” See United States v. Glenn, 

, 64 (2d Cir. 2002) (quotation marks

omitted). Samuels’s argument that the government overstated the value of his jewelry is

beside the point, since his jewelry (expensive even at his lower valuation) served only as

corroboration of the other evidence against him. The same goes for the cell-phone tower

evidence that McLean attacks. The jury did not stray in finding guilt beyond a reasonable

doubt.

         Samuels argues that the district court should have suppressed weapons and other

evidence found when the police searched the homes of his father and former girlfriend.

But the district court found, after a hearing, that Samuels consented to the search of both

places. See Schneckloth v. Bustamonte, 

, 219 (1973). On appeal, Samuels

argues that the law enforcement officers provided “contradictory” testimony and calls his

consent “questionable,” but points to no evidence to solidify these nebulous accusations

and nothing to show that the district court clearly erred in finding consent. He mentions

the officers’ suggestion that they would get a warrant if he refused consent, but such a

suggestion does not render consent involuntary. See United States v. Calvente, 

1019, 1023 (2d Cir. 1983). Unlike in Bumper v. North Carolina, 

, 546-48

(1968), the officers did not falsely tell Samuels that they already had a warrant.

Furthermore, Samuels’s own affidavit disclaimed any expectation of privacy in his ex-

girlfriend’s apartment, stating that he “do[es] not live” there, “never lived” there, and “did

not have control or authority over her home and could not enter her home without her

permission.” He therefore may not challenge the search of that home. See Rawlings v.

Kentucky, 

, 104 (1980).

       Samuels argues that venue on his § 924(c) weapons charge was not proper in the

Southern District of New York because no one testified to seeing him possess or use the

weapons in that district. See U.S. Const. art. iii, § 2, cl. 3; Fed. R. Crim. P. 18. This

claim fails as well. First, the Supreme Court has held that § 924(c) charges based on a

continuing crime of violence may be tried in any district where the crime of violence

occurred, regardless of whether the related firearm possession occurred in that district.

See United States v. Rodriguez-Moreno, 

, 282 (1999). We have applied the

logic of Rodriguez-Moreno to narcotics distribution conspiracies as well. See United

States v. Payne, 

, 69 (2d Cir. 2010). Second, even if Rodriguez-Moreno did

not apply here, Samuels’s argument would fail because the jury could have concluded

that he possessed relevant firearms in the Southern District. He testified that he kept two

guns where he lived in Yonkers, New York, which is part of the Southern District. He

also testified that he had an AK-47 at his ex-girlfriend’s apartment on Long Island. The

jury could reasonably infer that Samuels would have traveled through the Southern

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District to transport anything from that apartment to New Jersey, where a witness saw

him bear such a firearm to protect the conspiracy. A rational jury therefore could have

concluded that he possessed a firearm in the Southern District during and in relation to a

drug trafficking conspiracy, or that he possessed one during and in relation to a drug

trafficking conspiracy that occurred in the Southern District, or both.

       Samuels also raises a claim under the Speedy Trial Act. That Act, however,

provides that “[f]ailure of the defendant to move for dismissal prior to trial . . . shall

constitute waiver of the right to dismissal.” 18 U.S.C. § 3162(a); see Zedner v. United

States, 

, 502 (2006). Because Samuels failed to raise this issue before trial,

he has waived it.

II.    Sentencing Issues

       The three appellants raise various challenges to their sentences. Sanchez argues

that the district court erred in applying a four-level enhancement for his leadership role.

See U.S.S.G. § 3B1.1. Sanchez’s leadership-role argument, like Samuels’s and McLean’s

sufficiency arguments, relies heavily on discrediting a key government witness. The

district court did not clearly err in believing that witness. Sanchez’s other arguments on

this front – that his boasts of having underlings are “likely to have been mere ‘puffery’”;

that McLean’s request to Sanchez “for a ‘bigger role in the organization’ . . . can be read

[to mean] that McLean . . . was hoping that appellant would contract out some of his

drugs to him on an independent basis” – at most suggest inferences that the district court

could have drawn, not ones that it clearly erred by refusing to draw.

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       Sanchez also contests his two-level enhancement he received for possession of a

dangerous weapon. See U.S.S.G. § 2D1.1. To support that enhancement, the government

does not have to show that Sanchez himself possessed firearms, but only that the gun

possession was a “reasonably foreseeable act[] . . . that occurred during the commission

of the offense of conviction.” U.S.S.G. § 1B1.3(a)(1)(B). It was reasonably foreseeable

that Samuels, who provided “muscle” for the conspiracy, would possess a firearm during

that conspiracy, and especially so that he would possess one in a potentially dangerous

confrontation with the conspiracy’s supplier. The district court therefore did not clearly

err in applying the firearm enhancement.

       Appellants make other sentencing arguments that, like several arguments we have

already rejected, require ignoring the testimony of a witness that both the jury and the

district court credited. Samuels challenges his three-level role enhancement for being a

“manager or supervisor (but not an organizer or leader)” in the conspiracy, U.S.S.G.

§ 3B1.1(b), even though the witness testified that Samuels had a “crew” and at least once

brought his “boys” to the office as “back up” (and even though Sanchez stated in a

recorded call that Samuels “is the boss of all of the black guys”). Samuels and McLean

both argue that it was clear error to sentence them based on 150 kilograms or more of

cocaine, see U.S.S.G. § 2D1.1(c)(1), even though the witness testified that they were both

present for discussions about and handling of greater quantities than that. The district

court did not clearly err by relying on this evidence to apply these enhancements.



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       Samuels also challenges two other enhancements he received. The district court

did not clearly err in finding that he intentionally obstructed justice, see U.S.S.G. § 3C1.1,

because Samuels’s testimony directly contradicted material evidence on which the jury

relied to find him guilty, and involved details of the sort that do not result from

“confusion, mistake, or faulty memory.” United States v. Dunnigan, 

, 94

(1993). The district court also did not err in applying an enhancement for use of a

firearm, see U.S.S.G. § 2D1.1(b)(1), because the evidence showed Samuels used a

firearm, and because Samuels received no additional sentence under § 924(c), due to the

district court’s reliance on our now-abrogated precedents in United States v. Williams,

, 167-68 (2d Cir. 2009), and United States v. Whitley, 

, 151 (2d

Cir. 2008). Even if the district court did err in applying the firearm enhancement,

moreover, the passage of time has made such an error harmless; if we remanded, the

district court would be required to impose at least a five-year sentence for his separate

conviction under § 924(c), running consecutively to “any other term of imprisonment

imposed on the offender.” 18 U.S.C. § 924(c)(1)(D)(ii); see Abbott v. United States, 

, 23 (2010), United States v. Tejada (Mejia), 

, 619-20 (2d Cir.

2011). Lowering his offense level by two points could not offset this five-year addition,

because his offense level already was two levels beyond the maximum in the sentencing

table. Any error with respect to the treatment of the firearms issue was thus beneficial to

Samuels.



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       Samuels makes several attacks on the six-million-dollar forfeiture judgment. He

argues that the government sought forfeiture only at the last minute, but his indictment

included a forfeiture allegation, so he was on notice of the risk of forfeiture more than

eight months before sentencing. See Fed. R. Crim. P. 32.2(a). He argues that the district

court erred in holding him accountable for the proceeds of the entire conspiracy, but we

have long upheld such joint-and-several liability under 21 U.S.C. § 853. See United

States v. Benevento, 

, 130 (2d Cir. 1988). He also argues that the forfeiture

constitutes an “excessive fine[]” under the Eighth Amendment (an argument he appears

not to have raised below), but, given Samuels’s extensive involvement in a conspiracy

that imported and distributed many hundreds of kilograms of cocaine, and his use of a

weapon and role as “muscle” in that conspiracy, the amount here was not “grossly

disproportional to the gravity of his offense.” United States v. Bajakajian, 

,

324 (1998). Finally, he argues it was unfair to impose forfeiture on him when other

members of the conspiracy did not suffer similar impositions (though Sanchez did receive

a substantial fine). Fair or not, this result was not contrary to the law.

       We also reject Samuels’s and McLean’s arguments that their prison sentences

were substantively unreasonable.       Samuels argues he should have received a lower

sentence in light of the sentences of his co-conspirators, such as Sanchez, who received

only 240 months against Samuels’s 272 months. But Sanchez was not convicted of

violating § 924(c) as Samuels was, Sanchez did not obstruct justice, and Sanchez received

credit for accepting responsibility by pleading guilty. In any event, the premise of

                                               8
Samuels’s argument fails because a district court does not even have to consider intra-

conspiracy disparities, though it may at its discretion. See United States v. Frias, 

, 236 & n.8 (2d Cir. 2008). McLean’s similar substantive-unreasonableness

argument also fails. The district judge considered his crime and circumstances and did

not abuse its discretion in selecting his sentence. All three appellants received sentences

significantly below their applicable Guidelines ranges. These sentences lie well “within

the range of permissible decisions.” See United States v. Cavera, 

, 189 (2d

Cir. 2008) (en banc) (quotation marks omitted).

      Sanchez, writing separately pro se, argues that judicial fact-finding violates the

Fifth and Sixth Amendments. The Supreme Court has specifically allowed such fact-

finding, however, so long as it is employed in the service of advisory, rather than

mandatory, Sentencing Guidelines. See United States v. Booker, 

, 245

(2005).

      Finally, we decline to reach McLean’s contentions that his trial counsel was

constitutionally ineffective, which are more appropriately made in a motion under 28

U.S.C. § 2255. See Massaro v. United States, 

, 504 (2003).

      For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:

                                                  Catherine O’Hagan Wolfe




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