United States v. Ortiz , 525 F. App'x 41 ( 2013 )

11-4860 (L)
United States v. Ortiz
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 APPELLAT E 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 NO TATION "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 20th day of May, two thousand thirteen.
PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
11-4860 (L)
-v.- 11-4931 (CON)
11-5221 (CON)
EDILBERTO BERRIO ORTIZ, AKA El Gavilan,
ALEJANDRO PALACIOS RENGIFO, AKA El Gato,
AKA Yimi, ANDERSON CHAMAPURO DOGIRAMA, AKA
El Tigre, AKA Dairon,
Defendants-Appellants,
*
The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
LUIS FERNANDO MORA PESTANA, AKA Dr.
Silver, JULIO ENRIQUE LEMOS-MORENO,
CARLITOS LNU, ALEXIS LNU, AKA Alexi, FNU
LNU, AKA El Indio, ROQUE OROBIO LOBON, AKA
Roque Orobio Tobon, AKA Mello, AKA
Tachuela,
Defendants.**
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FOR APPELLEE: REBECCA MONCK RICIGLIANO (Jeffrey
A. Brown, Brent S. Wible,
Assistant United States Attorneys,
on the brief), for Preet Bharara,
United States Attorney for the
Southern District of New York, New
York, New York.
FOR DEFENDANT-APPELLANT BETH M. FARBER (Hoonpyo Lee, on
ALEJANDRO PALACIOS RENGIFO: the brief), Law Offices of Beth
Farber, New York, New York.
FOR DEFENDANT-APPELLANT MARLON G. KIRTON, Marlon G.
EDILBERTO BERRIO ORTIZ: Kirton, P.C., New York, New York.
FOR DEFENDANT-APPELLANT KAFAHNI NKRUMAH, Law Office of
ANDERSON CHAMAPURO DOGIRAMA: Kafahni Nkrumah L.L.P., New York,
New York.
Appeal from the United States District Court for the
Southern District of New York (Rakoff, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgments of the district court are AFFIRMED.
Defendants-appellants Edilberto Berrio Ortiz,
Alejandro Palacios Rengifo, and Anderson Chamapuro Dogirama,
members of the 57th Front of the Fuerzas Armadas Revolucionarias
**
The Clerk of the Court is directed to change the
caption to conform to the above.
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de Colombia ("FARC"), held a U.S. citizen captive for
approximately ten months. After defendants escaped from the
FARC, they were arrested, extradited to the United States, and
charged with taking hostages and conspiring to take hostages, in
violation of 18 U.S.C. § 1203.
Following an evidentiary hearing, the district court
denied defendants' motion to present duress as an affirmative
defense at trial. Ortiz, Rengifo, and Dogirama thereafter
agreed to a bench trial on stipulated facts. They were
convicted on both counts and sentenced principally to terms of
imprisonment of 204 months, 180 months, and 120 months,
respectively. On appeal, defendants challenge the district
court's order denying their motions to present an affirmative
defense; in addition, Rengifo and Ortiz challenge their
respective sentences. We assume the parties' familiarity with
the underlying facts, the procedural history of the case, and
the issues on appeal.
We review de novo the district court's denial of a
motion to present an affirmative defense. See, e.g., United
States v. Markle, 628 F.3d 58, 62 (2d Cir. 2010). After an
independent review of the record, we conclude that the district
court, for substantially the reasons set forth in its detailed
memorandum decision, correctly concluded that defendants had
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failed to make the requisite prima facie showing of the elements
of a duress defense. See United States v. Mora Pestana, 865 F.
Supp. 2d 357 (S.D.N.Y. 2011); see also United States v.
Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (elements of duress
defense).
Rengifo and Ortiz also challenge the procedural and
substantive reasonableness of their respective sentences.1 Our
reasonableness assessment applies "a particularly deferential
form of abuse-of-discretion review," United States v. Cavera,
550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc), and we conclude
these arguments fail.
First, although Ortiz claims the district court erred
by finding that he committed a felony that "was intended to
promote[] a federal crime of terrorism," U.S.S.G. § 3A1.4(a),
resulting in a sentencing enhancement, substantial evidence
supported the district court's finding. This included evidence
that Ortiz (1) knew of the FARC's role as a political and
military organization seeking to overthrow the Colombian
government; (2) was in charge of twelve other FARC soldiers and
setting the guard-duty schedule; (3) guarded the hostage; (4)
threatened to kill the hostage if he tried to escape; and (5)
knew that hostage ransoms were used to finance the FARC's
1
Dogirama does not challenge his sentence.
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activities. Hence, the district court did not clearly err by
finding that Ortiz acted "for the broader purpose of furthering
terrorist activity."
Second, the district court thoroughly assessed the 18
U.S.C. § 3553(a) factors, as to both Rengifo and Ortiz
separately. The district court considered the arguments
presented by Rengifo and the government before imposing "the
most merciful sentence" it could impose for Rengifo -- 180
months' imprisonment. Likewise, the court weighed Ortiz's role
as the leader among the three co-appellants and the "horrendous
difficulties" and "heartbreaking" aspects of his situation, but
also the need to protect U.S. citizens abroad when it sentenced
him to 204 months' imprisonment. Both of these sentences fell
well below the life sentences contemplated by the Guidelines,2
were less than the 210-month sentence recommended by their
respective presentence reports, and reflected the district
court's careful consideration of the 3553(a) factors.
Moreover, although Rengifo and Ortiz contend that the
district court should have departed on the basis of duress, the
record clearly indicated that the district court, in its
2
Notwithstanding the Guidelines range of life
imprisonment applicable to both Rengifo and Ortiz, neither
defendant would have been sentenced to life in accordance with
the extradition agreement between Colombia and the United
States.
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sentencing discretion, believed that the issue of duress would
be "so much more easily dealt with in terms of the overall
picture than in terms of the guidelines," i.e., as a variance
from the Guidelines range. Sent. Tr. 21:23-24 (Oct. 24, 2011).
As neither defendant has presented "clear evidence of a
substantial risk that the judge misapprehended the scope of his
departure authority," the district court's decision not to grant
a downward departure is not appealable. United States v. Clark,
128 F.3d 122, 124 (2d Cir. 1997) (citation and internal
quotation marks omitted). Hence, reviewing their arguments as a
whole, we conclude that the district court did not procedurally
err when sentencing Rengifo and Ortiz.
Finally, to the extent Ortiz and Rengifo argue that
their sentences were substantively unreasonable, those arguments
also fail. We "'set aside a district court's substantive
determination only in exceptional cases,'" United States v.
Gilliard, 671 F.3d 255, 260 (2d Cir. 2012) (quoting Cavera, 550
F.3d at 189), and we conclude that the sentences imposed on
Ortiz and Rengifo were not "shockingly high . . . or otherwise
unsupportable as a matter of law," United States v. Rigas, 583
F.3d 108, 123 (2d Cir. 2009). Therefore, we affirm the district
court's sentence on these grounds as well.
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We have considered defendants' remaining arguments and
conclude they are without merit. For the foregoing reasons, we
AFFIRM the judgments of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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