United States v. Ramos-Nunez , 633 F. App'x 20 ( 2016 )

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
23 F.3d 785, 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, 385 F.3d
27 127, 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, 451 F.3d 97,
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, 136 F.3d 882, 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, 430 F.3d 518, 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