United States v. Valderrama , 460 F. App'x 70 ( 2012 )

11-913-cr
U.S. v. Valderrama
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of February, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 11-913-cr
17
18 LUIS VALDERRAMA, a/k/a GORDO,
19 Defendant-Apellant,
20
21 NELSON VIROLA,
22 Defendant.
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24
25 FOR APPELLANT: Frederick Harvey Cohn, New York,
26 N.Y.
271
1 FOR APPELLEE: Jo Ann M. Navickas, Lan Nguyen,
2 for Loretta E. Lynch, United
3 States Attorney for the Eastern
4 District of New York, Brooklyn,
5 N.Y.
67 Appeal from a judgment of the United States District
8 Court for the Eastern District of New York (Korman, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 Defendant Luis Valderrama appeals from a judgment of
15 conviction entered by the United States District Court for
16 the Eastern District of New York (Korman, J.) for conspiracy
17 to distribute and possess with intent to distribute 500
18 grams or more of cocaine, in violation of 21 U.S.C. §§ 84619 and 841(b)(1)(B)(ii)(II), and possession with intent to
20 distribute 500 grams or more of cocaine, in violation of 21
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II). We assume the
22 parties’ familiarity with the facts, procedural history, and
23 issues presented on appeal.
24
25 Valderrama argues that the district court erred by
26 imposing a two-level enhancement for obstruction of justice
27 under § 3C1.1 of the United States Sentencing Guidelines.
28 Valderrama’s presentencing report (“PSR”) recommended the
29 enhancement on the ground that Valderrama had perjured
30 himself at his trial when he testified, inter alia, that (1)
31 he was entrapped by a confidential informant and did not
32 initiate the drug transaction for which he was being
33 tried,(2) he was never involved in prior drug transactions,
34 and (3) he did not know where or how the supplier got his
35 drugs. At trial, the government introduced a recorded
36 conversation between Valderrama and the confidential
37 informant in which Valderrama discussed other drug deals he
38 completed, bragged about the amount of cocaine his supplier
39 could procure, and said that his supplier got his drugs by
40 parcel service from Puerto Rico. Valderrama tried to
41 explain away the recorded statements by claiming that he was
42 trying to impress the confidential informant so that he
43 could broker more drug transactions with the informant. The
44 district court concluded that Valderrama had perjured
45 himself, expressly adopted the PSR’s finding, and applied
46 the two-level enhancement.
47
2
1 The district court properly concluded that Valderrama
2 committed perjury. See United States v. Dunnigan, 507 U.S.
3 87, 94 (1993). When a defendant objects at sentencing to
4 the perjury enhancement, a district court should review the
5 evidence and make findings “necessary to establish a willful
6 impediment to or obstruction of justice.” Id. at 95. The
7 district court satisfied this obligation by explicitly
8 adopting the PSR’s findings of perjury. See United States
9 v. Johns, 324 F.3d 94, 97-98 (2d Cir. 2003).
10
11 Finding no merit in defendants’ remaining arguments, we
12 hereby AFFIRM the judgment of the district court.
13
14
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
3