United States v. Coro ( 2022 )

21-924
United States of America v. Coro
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 TO 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 18th day of May, two thousand twenty-two.
PRESENT:
DENNY CHIN,
RICHARD J. SULLIVAN,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 21-924
VICTOR MONES CORO,
Defendant-Appellant. ∗
_____________________________________
FOR DEFENDANT-APPELLANT: PAUL J. ANGIOLETTI, Staten Island, NY.
∗
The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
FOR APPELLEE: SAM ADELSBERG (Stephen J. Ritchin, on
the brief), Assistant United States
Attorneys, for Damian Williams, United
States Attorney for the Southern District
of New York, New York, NY.
Appeal from the United States District Court for the Southern District of New
York (Alvin K. Hellerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the district court’s judgment is AFFIRMED.
Victor Mones Coro appeals from a judgment of conviction following his guilty
plea to five counts of violating and conspiring to violate the Foreign Narcotics
Kingpin Designation Act (the “Kingpin Act”), 21 U.S.C. §§ 1904(b)–(c)(1), (2) and
1906(a)(2), 18 U.S.C. §§ 3238 and 2, and related Kingpin Act regulations, 31 C.F.R.
§§ 598.203(a), 598.204, and 598.406. 1 The charges arose from Mones Coro’s
approximately two-year-long participation in a conspiracy to provide illicit air-
travel services to current and former officials of the Venezuelan government who
were sanctioned by the United States Treasury Department’s Office of Foreign
Assets Control (“OFAC”) for their connections to international narcotics trafficking
1 The provisions in 31 C.F.R. § 598.203(a) were subsequently moved to 31 C.F.R. § 598.202(a). See
86 Fed. Reg. 26,667 (May 17, 2021).
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and organized crime. Through his company, American Charter Services LLC
(“ACS”), Mones Coro arranged flights that often involved transporting these
individuals to locations of strategic importance to Venezuela, such as Russia and
Turkey. Following Mones Coro’s guilty plea, the district court calculated the
Guidelines range to be seventy to eighty-seven months’ imprisonment, based in part
on its conclusion that Mones Coro was subject to a four-level leadership
enhancement pursuant to U.S. Sentencing Guidelines § 3B1.1(a). The district court
then imposed a below-Guidelines sentence of fifty-five months’ imprisonment, to be
followed by a two-year term of supervised release, along with a fine and special
assessment that Mones Coro does not challenge here.
On appeal, Mones Coro argues that the district court improperly imposed the
four-level leadership enhancement and that his sentence is substantively
unreasonable. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
With respect to the Guidelines issue, section 3B1.1 provides for a four-level
sentencing enhancement for a defendant who is “an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). “We review a district court’s interpretation and application of
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the Guidelines de novo and its factual findings for clear error.” United States v.
Pristell, 941 F.3d 44, 49 (2d Cir. 2019) (citation omitted). Mones Coro contends that
in assessing the leadership enhancement, the district court “conflated [his
prominent] role in his company,” which he owned, “with his [putatively more
minor] role in the conspiracy.” Mones Coro’s Br. at 27. As a result, Mones Coro
maintains that the district court wrongly concluded that he was an organizer or
leader when he was actually a mere “service provider.” Mones Coro’s Br. at 24, 30,
33. 2 He further argues that he was at most a “manager or supervisor,” which would
merit only a three-level enhancement. Mones Coro’s Br. at 36; see U.S.S.G.
§ 3B1.1(b).
We find no error in the district court’s analysis. “Whether a defendant is
considered a leader depends upon the degree of discretion exercised by him, the
nature and degree of his participation in planning or organizing the offense, and the
degree of control and authority exercised over the other members of the conspiracy.”
United States v. Beaulieau, 959 F.2d 375, 379–80 (2d Cir. 1992). Contrary to Mones
Coro’s argument, leadership status does not turn on the fact that the individuals
2 Mones Coro does not dispute the district court’s determination that the criminal scheme involved
at least five participants or was otherwise extensive.
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sanctioned by OFAC were above him in the hierarchy of the criminal scheme. See,
e.g., U.S.S.G. § 3B1.1 cmt. n.4 (“There can, of course, be more than one person who
qualifies as a leader or organizer of a criminal association or conspiracy.”); United
States v. Si Lu Tian, 339 F.3d 143, 157 (2d Cir. 2003) (“[O]ne conspirator’s leadership
role is not dispositive on the question of whether another was also a leader.”)
(citation omitted).
The record supports the district court’s determination that Mones Coro was a
“leader” within the meaning of the Guidelines. As the owner and president of ACS,
Mones Coro led the scheme to provide flight services to OFAC-sanctioned
individuals in violation of the Kingpin Act and its related regulations: he decided
how to organize and arrange the flights, directed pilots to provide the flights,
devised procedures to avoid detection by law enforcement, and received millions of
dollars in payment for his services. The scheme depended on the resources of
ACS – its airplanes, employees, accounting services, bank accounts, contracted
pilots, and Federal Aviation Administration certification for charter-type air
services – and Mones Coro exercised significant discretion over how to use those
resources. The fact that he did not exercise discretion over the destinations or dates
of the flights and instead carried out the directives of the “top tier” clients, Mones
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Coro’s Br. at 24, 30, 38, is of little relevance given the discretion that he did exercise
and the fact that he and his company were indispensable to the criminal scheme at
issue here. Moreover, the record is clear that he did exercise decision-making
authority over crucial aspects of the travel, such as which planes and pilots to deploy
and how to adjust ACS’s standard record-keeping practices to conceal the scheme
by omitting the names of OFAC-sanctioned individuals from flight manifests and
internal records. See United States v. Duncan, 42 F.3d 97, 106 (2d Cir. 1994) (affirming
leader enhancement where defendant “knew of and profited from corruption” while
he was the president of the corporation that was “the primary vehicle through which
corrupt payments [to public officials] were made”). Accordingly, the district court
did not err in applying the four-level “leader” enhancement at sentencing.
Mones Coro’s challenge to the substantive reasonableness of his sentence fares
no better. We review the substantive reasonableness of a sentence “under a
‘deferential abuse-of-discretion standard,’” United States v. Cavera, 550 F.3d 180, 189
(2d Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)), recognizing that
such review “provide[s] a backstop for those few cases that, although procedurally
correct, would nonetheless damage the administration of justice because the
sentence imposed was shockingly high, shockingly low, or otherwise unsupportable
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as a matter of law,” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
Mones Coro argues that the district court did not properly weigh several
mitigating factors, including his exemplary life and character, his assistance to the
government in exposing a confidential source as unreliable and untrustworthy, his
conduct while in prison, the difficult conditions of his confinement during the
COVID-19 pandemic, and various other factors. He also argues that the district
court failed to consider the sentencing disparities between Mones Coro and
defendants in similar cases, such as those involving defendants who violated
sanctions against Iran.
But the law is clear that we will “set aside a district court’s substantive
determination only in exceptional cases where the trial court’s decision cannot be
located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (citation,
quotation marks, and emphasis omitted). Not surprisingly, “it is ‘difficult to find
that a below-Guidelines sentence is [substantively] unreasonable.’” United States v.
Rivernider, 828 F.3d 91, 111 (2d Cir. 2016) (quoting United States v. Perez-Frias, 636
F.3d 39, 43 (2d Cir. 2011)). Here, given the gravity of the offense, we have no
difficulty locating Mones Coro’s below-Guidelines sentence of fifty-five months in
prison “within the range of permissible decisions available to the district court.” Id.7
And because “concern about unwarranted disparities is at a minimum when a
sentence is within the Guidelines range,” let alone below it, we will not disturb
Mones Coro’s sentence on the basis of his having identified other defendants in other
circumstances who received different sentences. United States v. Irving, 554 F.3d 64,
76 (2d Cir. 2009) (citation omitted). We therefore conclude that the district court
did not impose a substantively unreasonable sentence.
We have considered Mones Coro’s remaining arguments and find them to be
meritless. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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