United States v. Sainfil ( 2022 )

20-778
United States v. Sainfil
In the
United States Court of Appeals
For the Second Circuit
August Term, 2021
No. 20-778
UNITED STATES OF AMERICA,
Appellee,
v.
OVELL GAHAGEN, AKA O, QUINCY HOMERE, AKA Q, MARCUS WELLS,
VINCENT BIFOLCO, JAYSHANT ROSE, AKA DRED,
Defendants,
ANAEL SAINFIL, AKA M,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of New York
ARGUED: MAY 17, 2022
DECIDED: AUGUST 10, 2022
Before: KEARSE, JACOBS, and NARDINI, Circuit Judges.
On January 25, 2018, a jury convicted Anael Sainfil of
conspiracy to commit armed bank robbery in violation of 18 U.S.C.
§ 371; armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d);
and brandishing a firearm during a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A). The United States District Court for the
Eastern District of New York (Denis R. Hurley, Judge) sentenced
Sainfil to 219 months in prison. Sainfil appeals, challenging the
district court’s denial of his motion for a new trial based on his
counsel’s purported ineffective assistance in (a) failing to move to
suppress Sainfil’s pre-Miranda statement to an agent of the Federal
Bureau of Investigation and (b) conceding to the jury that Sainfil was
outside the bank when it was robbed. Sainfil also challenges the
sufficiency of the evidence and argues that his sentence was
procedurally and substantively unreasonable. Among other things,
Sainfil argues that the district court clearly erred in determining that
his co-defendant’s use of body armor during the armed robbery was
reasonably foreseeable. We find no merit in these claims and
accordingly AFFIRM the judgment of the district court.
Judge Jacobs concurs in part and dissents in part in a separate
opinion.
MARK MISOREK (Kevin Trowel, on the brief),
Assistant United States Attorneys, on behalf
of Breon Peace, United States Attorney,
Eastern District of New York, Brooklyn,
NY, for Appellee.
MICHAEL RAYFIELD (Nicolas E. Rodriguez,
on the brief), Mayer Brown LLP, New York,
NY, for Defendant-Appellant.
2
WILLIAM J. NARDINI, Circuit Judge:
A jury convicted defendant Anael Sainfil of armed bank
robbery and related offenses in connection with the November 2015
robbery of a Wells Fargo Bank in Hempstead, New York. Sainfil
moved for a judgment of acquittal under Rule 29 and a new trial
under Rule 33 of the Federal Rules of Criminal Procedure. The United
States District Court for the Eastern District of New York (Denis R.
Hurley, Judge) denied both motions and sentenced Sainfil to 219
months in prison. On appeal, Sainfil challenges the district court’s
denial of his Rule 33 motion based on his trial counsel’s purported
ineffective assistance in (a) failing to move to suppress Sainfil’s pre-
Miranda statement to an agent of the Federal Bureau of Investigation
(“FBI”), which effectively admitted that he was outside the bank
when it was robbed, and (b) conceding that fact before the jury and
arguing that his presence was merely coincidental. Sainfil also
challenges the sufficiency of the evidence and argues that his sentence
3
was procedurally and substantively unreasonable. Among other
things, Sainfil argues that the district court clearly erred in finding
that his co-defendant’s use of body armor during the robbery was
reasonably foreseeable.
For the reasons discussed below, we reject Sainfil’s claims and
AFFIRM the judgment of the district court.
I. Background
A. The indictment
On December 20, 2016, a grand jury returned an indictment
charging Anael Sainfil, Ovell Gahagen, Quincy Homere, and Marcus
Wells with robbing the Wells Fargo Bank in Hempstead, New York,
on November 9, 2015, using firearms. The indictment alleged that the
four defendants robbed the bank with others, and the government
presented evidence at trial indicating that the defendants’ other co-
conspirators included Jayshant Rose, Yusuf Jackson, Andrew
McCarthy, and Tasha Chance. The government also presented
evidence indicating that the co-conspirators used the home of a
4
woman named Marcy as a staging area for the robbery. As to Sainfil
specifically, the indictment charged him with three counts:
conspiracy to commit armed bank robbery under 18 U.S.C. § 371;
armed bank robbery under 18 U.S.C. § 2113(a) and (d); and
brandishing a firearm during a crime of violence under 18 U.S.C.
§ 924(c)(1)(A)(ii). In the conspiracy count, the indictment alleged that
Sainfil served as a lookout outside the bank while his armed co-
conspirators went inside and took the money. App’x at 34. As to the
armed bank robbery and firearms charges, the indictment cited 18
U.S.C. § 2, which provides for aiding and abetting liability. Sainfil
pleaded not guilty and went to trial.
B. The trial evidence
Over two days, the government presented the jury with various
exhibits, including footage from the bank’s surveillance cameras that,
the government suggested, showed Sainfil outside the bank in the
moments just before the robbery. It also offered testimony from nine
5
witnesses, including three cooperating co-conspirators who had pled
guilty to their involvement in the robbery. According to this
testimony, Sainfil and his co-conspirators carefully planned the
robbery over a period of months, between August 2015 and
November 2015; attempted to rob the bank in October 2015 but called
it off at the last minute; and finally executed the robbery in November
of that year. The defense case was limited to a single composite video
from the bank’s surveillance system, which was offered to suggest
that Sainfil was not the person recorded in the government’s videos.
1. The planning of the bank robbery
The government offered testimony from Chance, a former
employee at the bank who became romantically involved with
Homere. In July 2015, after Chance had been terminated from her job,
Homere contacted her and explained that he intended to rob the bank
but needed information from her about its security and operations.
6
Homere arranged with Chance to meet him at his studio. When
she arrived, Sainfil met her and brought her upstairs to a bedroom
where they met with Homere. The three spent an hour discussing the
robbery. Sainfil did most of the talking, asking Chance about the
bank’s day-to-day operations, the specific locations where cash was
stored in the bank, and how to access the vault. Sainfil said to Chance,
“If we’re going to do this you got to do this right. We can’t have any
mistakes. Now I need you to walk me through who is working there,
who has keys, who has codes.” App’x at 368–69. Sainfil and Homere
talked about certain bank employees, including a certain teller.
Homere suggested that the co-conspirators could fake a car accident
and kidnap that teller the night before the bank robbery, and Sainfil
added that a person could be “at the house with [the teller’s] dad”
because “[the teller] is close with [the teller’s] dad and . . . wouldn’t
want anything to happen to [him].” Id. at 371. The next day, at
another meeting at the studio, Sainfil questioned Chance closely
7
about a new security guard at the bank and said to her: “We cannot
miss a beat. We have to stay on track of who’s there, how long it takes
them to come in, and who is the new people that worked at the bank.”
Id. at 372.
Other co-conspirators corroborated that Sainfil met with
Chance and Homere in the months before the bank robbery.
McCarthy testified that on two or three occasions in 2015 he saw
Chance, Homere, and Sainfil meeting behind closed doors for about
15 minutes each time. Gahagen testified that he saw Chance come to
meet Homere three to six times during the summer of 2015 and saw
Chance, Homere, and Sainfil meet for about 15 minutes at least once.
McCarthy testified that, during the planning phase, he and
Sainfil said they were not willing to go into the bank during the
robbery. Instead, McCarthy agreed to serve as a driver, while Sainfil
agreed to be a lookout. Sainfil explained, “If anything goes wrong
like being pulled over by the police, I’m only looking [at] spending a
8
small amount of time, two or three years. I’m not going into the
bank.” App’x at 164. McCarthy also testified that Sainfil was present
at a meeting with Homere during which Homere detailed the drop-
off and pick-up locations of the co-conspirators after the robbery to
McCarthy.
2. The aborted attempt
In October 2015, Homere told Sainfil, McCarthy, and Gahagen
that he was ready to rob the bank. McCarthy picked up Jackson and
Wells and drove them to a staging area at Marcy’s house. McCarthy
saw Sainfil and others at Marcy’s house preparing for the robbery by
putting on black gear, masks, and gloves, and getting an AK-47 and
three pistols. After an hour, Homere told Sainfil to “go look in the
parking lot and see if you see anybody walking, parking, sitting in
their cars” and to call Homere to report what he saw. App’x at 172.
Sainfil left Marcy’s house and called Homere fifteen minutes later;
Homere then announced that “[Sainfil] says it’s clear.” Id. at 172–73.
9
The co-conspirators left Marcy’s house and went to the bank with the
guns. However, after arriving at the bank but before entering to rob
it, Homere saw someone in a car and announced that it “doesn’t feel
right,” App’x at 175, and so they all left the bank. McCarthy did not
see Sainfil at the bank. 1
3. The robbery
McCarthy testified that on November 9, 2015, Homere told him
that they were again ready to rob the bank. After dressing in black,
McCarthy left his house and met Sainfil, Homere, and Gahagen.
Homere, McCarthy, and Gahagen picked up Jackson and Wells.
These five co-conspirators went to Marcy’s house where they found
Sainfil and Rose. Gahagen testified that Sainfil and others were in the
garage, where guns and zip ties were getting wiped of fingerprints,
1 Wells recalled a slightly different version of the aborted attempt. Wells
testified that he did not see Sainfil at Marcy’s house before the aborted attempt.
According to Wells, Homere did not want to go into the bank because people
might be in the bank’s parking lot. As a result, Wells testified that Sainfil was
outside the bank during the actual robbery on November 9 to make sure that
nobody was in the bank’s parking lot.
10
and Wells was putting on his bulletproof vest. After everyone was
ready, Homere sent Sainfil to the bank and told him to make sure no
one was in the parking lot and to call to report what he saw.
McCarthy then drove Homere, Jackson, Rose, and Wells to the
bank’s parking lot. Five minutes later, McCarthy saw Sainfil walk
from the rear of the bank through the drive-through side wearing a
hoodie and possibly an ear piece. At the same time, McCarthy saw
Homere on the phone and overheard him directing Sainfil to look into
specific cars; McCarthy recalled seeing Sainfil look into the same cars
described by Homere as he was talking about them. After Sainfil
looked into four or five cars and walked past McCarthy’s car, Homere
told McCarthy to pull up in front of the bank. Homere, Jackson, Rose,
and Wells then got out of the car and went into the bank.
Once inside, the co-conspirators announced that they were
robbing the bank. Homere brandished an AK-47 rifle. Jackson
displayed a .357 revolver. Rose and Wells displayed BB guns. They
11
told bank employees to open safes and the ATM inside the vault. One
conspirator told a teller that they knew who she was and where she
lived. Rose and Wells zip-tied employees and customers, including
an eight-year-old boy. A bank employee grabbed a bag of money
with more than $375,000, placed a wireless GPS tracker in the bag,
and handed it over. They left through the back of the bank, where
McCarthy picked them up and they sped away.
4. Post-robbery events
After leaving the bank, the co-conspirators split up. Homere,
Jackson, and Rose drove off in a BMW; McCarthy and Gahagen fled
in a second car; and Wells took a third car. Police pursued the BMW
until it stopped and the three occupants fled on foot; Homere and
Rose escaped, but the officers caught Jackson. The police searched the
BMW pursuant to a warrant and recovered a bag of cash, a loaded
AK-47, a ski mask, Homere’s cell phone, and the GPS tracking device.
Homere’s DNA was later recovered from the mask, and Jackson’s
12
DNA was located on another mask found near the BMW. After
Jackson’s arrest, law enforcement also retrieved the loaded .357
revolver that Jackson discarded when he fled.
Later that evening, Gahagen and McCarthy saw Sainfil who,
according to McCarthy, said, “[W]e did it. I can’t believe we did it.”
App’x at 185. Wells testified that on the day after the robbery, Sainfil
and Homere came to Wells’s home and told him that the police had
taken the money. Sainfil and Homere threatened Wells to keep quiet
and said they knew where his children lived.
Sainfil was arrested on December 21, 2016. An FBI agent
testified that, before Sainfil was given a Miranda warning, the
following occurred:
As we were transporting Mr. Sainfil to our office, he was
asking questions about his situation . . . . I told him we
would be talking more once we got to our office, that
everything would be explained to him . . . . [When
Sainfil] kept asking why he was being arrested . . . . I told
him we had an arrest warrant for him in relation to the
Wells Fargo bank robbery. I guess it was a year prior at
that point in November. And I told him we knew he was
13
involved in the bank robbery . . . . [When] he said, you
are saying I robbed a bank, as a question, . . . I said, we
know you were involved as a lookout while your friends
were inside the bank you were outside. [Sainfil
responded] just because I was outside the bank doesn’t
mean I robbed it.
App’x at 336–37.
After arriving at the FBI office, agents provided Sainfil with a
Miranda waiver form, which he initialed. Two agents briefly
interviewed him. One agent told Sainfil, “[W]e know you were
outside the bank acting as a lookout,” to which Sainfil shrugged and
replied, “[I]t doesn’t mean I robbed a bank.” Id. at 341. Sainfil then
invoked his right to remain silent and the agents ended the interview.
Sainfil’s trial attorney never moved to suppress any of Sainfil’s
statements to the FBI. At trial, the government presented the
statements to the jury through the testimony of the arresting FBI agent
and relied on those statements during both its opening and closing
arguments. During his opening statement, Sainfil’s trial counsel
stated: “You’re going to hear that Anael [Sainfil] was outside the
14
bank. That happened. He was outside the bank. That doesn’t mean
that he participated in this robbery.” App’x at 55.
The government presented excerpts from one of the bank’s
surveillance videos showing a person (who the government asserted
was Sainfil) walking through the area behind the bank and heading
toward the parking lot. In response, the defense presented a
composite of other bank surveillance footage purportedly showing
that the person in the government’s video was a white male, and thus
could not be Sainfil, who is black. In its closing argument, the
government stated: “[T]he video is what it is. If you only had the
video in this case we wouldn’t be here, right?” App’x at 429.
5. Verdict and post-trial motions
On January 25, 2018, the jury found Sainfil guilty of all three
charges. Sainfil moved for a judgment of acquittal under Federal Rule
of Criminal Procedure 29 or, alternatively, for a new trial under Rule
33. Sainfil’s Rule 29 motion was premised on purported
15
inconsistencies in the testimony of the government’s witnesses, which
he argued undermined the sufficiency of the evidence supporting his
convictions. Sainfil’s Rule 33 motion was premised on the purported
failures by trial counsel to object to the introduction of the bank
surveillance video evidence and to move to suppress Sainfil’s pre-
Miranda statements to the FBI. Sainfil also submitted a declaration
explaining the meaning of his pre-Miranda statements:
I have been to the Wells Fargo Bank in Hempstead with
the defendant Quincy Homere numerous times on
routine business where I waited for him outside the
bank. I have no doubt that I may have been on the bank
surveillance camera system on any one of these occasions
in the parking lot. Since I did not know the date of the
robbery when I was arrested . . . , it was possible I could
even have been there earlier on the day of the robbery
and not known it. . . . When [the FBI agent] arrested me,
I was surprised when he told me I was being arrested for
bank robbery, and when he accused me of being outside
the bank I stated to him “being outside the bank does not
make you a robber.” At the time I did not know when
the [r]obbery was so I could not make a more specific
denial.
App’x at 471–72.
16
The district court denied Sainfil’s motions. With respect to the
Rule 29 motion, the district court found that the evidence at trial
supported Sainfil’s convictions, and that the purported
inconsistencies in the testimony of government witnesses were raised
by defense counsel at trial and rejected by the jury. As to Sainfil’s
ineffective assistance claim, the court found that counsel’s decision to
“embrac[e] the post arrest statements was a sound strategy and
comported with Defendant’s theory of the case, i.e. that he was merely
present at the [b]ank.” Special App’x at 19. It further determined that
a motion to suppress “would have had little chance of success”
because it did “not appear that [Sainfil] was subject to the functional
equivalent of interrogation.” Id. Finally, the district court found that
the defendant could not show prejudice in light of Sainfil’s
subsequent post-Miranda statement.
17
6. Sentencing
The U.S. Probation Department prepared a Presentence
Investigation Report (“PSR”) and calculated a base offense level of 20
under the U.S. Sentencing Guidelines. Sainfil did not object to that
base offense level. He did, however, object to the PSR’s
recommendation of two enhancements that are relevant to this
appeal: (1) two points for physically restraining victims during the
robbery under U.S.S.G. § 2B3.1(b)(4)(B); and (2) two points for the use
of body armor during a crime of violence under U.S.S.G. § 3B1.5.
Because Sainfil himself did not use physical restraints or body armor,
the government had to demonstrate that his co-conspirators did so,
and that their actions were “reasonably foreseeable in connection
with” the “jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B).
On February 25, 2020, the district court held a sentencing
hearing. The district court applied both of the disputed
18
enhancements as well as others not material to this appeal, yielding
an adjusted offense level of 30. Based on a total offense level of 30 and
a Criminal History Category of IV, the district court calculated a
Sentencing Guidelines range of 135 to 168 months, which, when
combined with the 84-month mandatory consecutive sentence on
Count Three, resulted in a total effective Guidelines range of 219–252
months of imprisonment. Applying the factors required under 18
U.S.C. § 3553(a), the district court observed that Sainfil was “a bright
individual” and “a good son,” and had worked in the suicide
prevention program at the facility where he was incarcerated. App’x
at 506–07. But the court rejected Sainfil’s contention that he was only
“peripherally involved” in the robbery. Id. at 508–09. The court also
found that general and specific deterrence were warranted because of
the “horrendous” nature of the robbery. Id. at 509. The court
sentenced Sainfil principally to 219 months in prison, at the bottom of
his advisory Guidelines range.
19
Sainfil now appeals, challenging both his conviction and
sentence.
II. Discussion
On appeal, Sainfil argues that the district court abused its
discretion in denying him a new trial based on his trial counsel’s
purported ineffective assistance in (a) failing to move to suppress
Sainfil’s pre-Miranda statement to the FBI agent and (b) conceding
that Sainfil was outside the Wells Fargo Bank at the time it was
robbed. Sainfil also challenges the sufficiency of the evidence and
argues that his sentence was procedurally and substantively
unreasonable. We disagree on each point.
A. Standard of review
“The question of whether a defendant’s lawyer’s
representation violate[d] the Sixth Amendment right to effective
assistance of counsel is a mixed question of law and fact that is
reviewed de novo.” LoCascio v. United States, 395 F.3d 51, 54 (2d Cir.
2005) (internal quotation marks omitted). We review de novo the
20
sufficiency of the evidence. See United States v. Irving, 452 F.3d 110,
117 (2d Cir. 2006). “We review the procedural and substantive
reasonableness of sentencing decisions for abuse of discretion, a
standard incorporating de novo review of questions of law, including
. . . interpretation of the Guidelines, and clear error review of
questions of fact.” United States v. Taylor, 961 F.3d 68, 74 (2d Cir. 2020)
(internal quotation marks and alterations omitted).
B. Ineffective assistance of counsel
To establish that counsel was constitutionally ineffective, a
defendant must demonstrate that (1) counsel’s performance fell
below an objective standard of reasonableness; and (2) the deficient
representation prejudiced the defendant. Strickland v. Washington, 466
U.S. 668, 687–88 (1984). “In order to show ineffective assistance for
the failure to make a suppression motion, the underlying motion
must be shown to be meritorious, and there must be a reasonable
probability that the verdict would have been different if the evidence
had been suppressed.” United States v. Matos, 905 F.2d 30, 32 (2d Cir.
21
1990). We may “entertain an ineffective assistance of trial counsel
claim on direct appeal in a narrow category of cases where: (1) as here,
the defendant has a new counsel on appeal; and (2) argues no ground
of ineffectiveness that is not fully developed in the trial record.”
United States v. Yauri, 559 F.3d 130, 133 (2d Cir. 2009) (internal
quotation marks omitted). Here, Sainfil has new counsel and raised
the ineffective assistance claim in the district court in his Rule 33
motion. We have concluded that the record is fully developed on this
point, and therefore we exercise our discretion to resolve Sainfil’s
ineffectiveness claim now. See United States v. Brown, 623 F.3d 104,
113 n.5 (2d Cir. 2010) (“[T]he proper procedural avenue for
defendants who wish to raise ineffective assistance claims after
conviction but prior to sentencing is a motion for a new trial pursuant
to Federal Rule of Criminal Procedure 33.”).
Sainfil argues that during the post-arrest, pre-Miranda
conversation initiated by Sainfil between him and the arresting agent
22
en route to the FBI office, the agent “posit[ed] the guilt of the subject”
and thereby conducted an unconstitutional custodial interrogation
under Rhode Island v. Innis, 446 U.S. 291, 299 (1980) (internal quotation
marks and alteration omitted), and Miranda v. Arizona, 384 U.S. 436,
444 (1966).
The merits of Sainfil’s argument are dubious because the agent
in the car seems to have been merely responding to Sainfil’s inquiries
about why he had been arrested. We need not definitively resolve
that question, however, because even if Sainfil could demonstrate
deficient performance under Strickland, we discern no prejudice from
the admission of Sainfil’s conversation in the car. In his second, post-
Miranda statement to the FBI, Sainfil effectively said the same thing as
the challenged pre-Miranda statement—that is, that his being outside
the bank on the day of the robbery did not mean that he robbed it. In
23
light of that second statement, 2 together with the testimony of three
cooperating witnesses placing Sainfil outside the bank as a lookout
moments before the robbery occurred, Sainfil has not demonstrated
“a reasonable probability that the verdict would have been different
if the [challenged] evidence had been suppressed.” Matos, 905 F.2d at
32.
As to trial counsel’s concession that Sainfil was outside the
bank, Sainfil has not satisfied Strickland’s deficient-performance
prong. Sainfil bases his argument on the purported overall weakness
of the government’s case in the hypothetical absence of the challenged
pre-Miranda statement. But his trial counsel’s concession must be
evaluated in light of the record evidence, including, at a minimum,
Sainfil’s post-Miranda statement to the FBI (the admissibility of which
Sainfil does not contest, and which strongly suggested that Sainfil was
2 Sainfil does not dispute the admissibility of this second statement. Nor
could he, because there is no indication that the FBI agent engaged in a deliberate
plan to “question first and warn later,” Missouri v. Seibert, 542 U.S. 600, 611 (2004),
which might call into question the voluntariness of the second statement.
24
not resisting the claim that he was indeed outside the bank during the
robbery) and the detailed witness testimony placing Sainfil outside
the bank as a lookout. Even considering Sainfil’s attacks on the
credibility of the cooperating witnesses and his challenges to the
probative value of other evidence, we cannot conclude—given the
“strong presumption” we must indulge that counsel’s conduct fell
“within the wide range of reasonable professional assistance,”
Strickland, 466 U.S. at 689—that the district court erred in determining
that Sainfil’s trial counsel’s concession “was a reasonable trial strategy
to establish a forthright relationship with the jury, by conceding what
the defense did not have evidence to contest.” Bierenbaum v. Graham,
607 F.3d 36, 52 (2d Cir. 2010); see also United States v. Sanchez, 969 F.2d
1409, 1414 (2d Cir. 1992).
C. Sufficiency of the evidence
“A defendant challenging the sufficiency of the evidence . . . at
trial bears a heavy burden, as the standard of review is exceedingly
deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012)
25
(internal quotation marks and citations omitted). A jury verdict must
be upheld if, “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Temple, 447
F.3d 130, 136–37 (2d Cir. 2006). This Court will “defer to the jury’s
assessment of witness credibility,” even when those witnesses have
“testified pursuant to cooperation agreements with the
[g]overnment.” United States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002)
(internal quotation marks omitted).
On appeal, Sainfil challenges the sufficiency of the evidence
underlying his convictions on a single ground: that the evidence did
not show he was physically present at the bank during or
immediately after the robbery and indeed that the surveillance video
conclusively proved that he was not the person outside of the bank.
These arguments suffer from two flaws.
26
First, as a legal matter, the government was not obliged to
prove Sainfil’s physical presence during the robbery to establish his
guilt on any of the three charges. His participation in the planning of
the armed robbery would have sufficed to establish his guilt on the
conspiracy charge (Count One). The same holds true for the armed
robbery and firearms offenses (Counts Two and Three), as to which
the district court instructed the jury on both aiding-and-abetting and
Pinkerton liability. See Pinkerton v. United States, 328 U.S. 640 (1946);
United States v. Gershman, 31 F.4th 80, 99 (2d Cir. 2022) (explaining that
under Pinkerton, a jury “may find a defendant guilty of a substantive
offense that he did not personally commit if it was committed by a co-
conspirator in furtherance of the conspiracy, and if commission of that
offense was a reasonably foreseeable consequence of the
conspiratorial agreement” (internal quotation marks omitted)). The
same evidence of his planning would have supported his guilt on
these two charges under either an aiding-and-abetting or Pinkerton
27
theory, regardless of whether he was present at the bank at the time
of the robbery.
Second, as a factual matter, there was abundant evidence
putting Sainfil squarely at the scene of the robbery as a lookout. We
have already reviewed that evidence above, and so we limit ourselves
to a few highlights:
• McCarthy, Wells and Gahagen testified that Sainfil
was present at the house where he and the
conspirators prepared for the robbery, and then
left to conduct surveillance at the bank;
• Just before the robbery, McCarthy watched Sainfil
walk from the rear of the bank through the drive-
through side of the bank;
• At the same time, McCarthy overheard Homere on
the phone with Sainfil directing Sainfil, by name,
to look into specific cars near the bank;
• As Homere was directing Sainfil, McCarthy and
Wells each saw Sainfil looking into the specific cars
being described by Homere;
• Gahagen saw Sainfil walking in front of the bank
just before the robbery.
28
And as to the surveillance video, it was within the jury’s province to
decide whether it depicted Sainfil as opposed to someone else, or
whether, even if the person in the video was someone else, Sainfil had
still acted as a lookout, albeit outside the range of the cameras. This
evidence, viewed in the light most favorable to the jury’s verdict, was
sufficient to establish the defendant’s guilt beyond a reasonable
doubt.
D. Procedural reasonableness
The district court applied a two-level enhancement for the use
of body armor by one of Sainfil’s co-conspirators under U.S.S.G.
§§ 1B1.3, 3B1.5, and a two-level enhancement for the co-conspirators’
restraint of the bank employees and customers with zip ties under
U.S.S.G. §§ 1B1.3, 2B3.1(b)(4)(B).
The district court applied the two-point physical restraint
enhancement, explaining that:
Four individuals entered the Wells Fargo bank in
Hempstead. One has an AK-47, another has a pistol and
two others have a BB gun. They enter during business
29
hours. There are people in the bank, i.e., customers as
well as employees. Is it reasonably foreseeable under
that circumstance that one or more of the bank robbers
would endeavor to in some fashion handcuff or tether
the customers in the bank and/or employees[?]
It seems to me, again, given the unique circumstances
here, that the answer to that has to be yes, otherwise
there are people in the bank, one I’m told was an eight
year old child, another one was apparently a woman
with some age. You would want to immobilize them if
you were a bank robber, that would be the appropriate
thing to do, otherwise they may try to flee the bank
which would be a disaster, they may want to physically
intervene and prevent the robbers from accomplishing
their designated goal, so it seems to me that again it is
reasonably foreseeable, not necessarily known by this
defendant who was a lookout as far as this bank robbery
was concerned.
App’x at 485–86.
As to the two-point body armor enhancement, the court
“accept[ed]” that Sainfil “didn’t know that . . . Wells was wearing the
body armor.” App’x at 481. 3 But it found that Wells’s use of a
3 There was evidence strongly suggesting that Sainfil was in the same room
as Wells when the latter donned his body armor. On this point, the government
directed the district court to Gahagen’s testimony that he saw Wells put on the
30
bulletproof vest fell “within the ambit” of “what a reasonable person
under the circumstances would understand.” Id. The district court
explained that:
One of the individuals had an AK-47. They are robbing
a bank. There may be a security officer. They are robbing
the bank during the workday. A reasonable person
would understand under those circumstances that there
may be gunfire involved, either by a security personnel
with the bank or by one or more of the co-conspirators.
So it would make sense to wear body armor.
Id.
Absent “clear error,” this Court will not disturb the district
court’s conclusion that the two enhancements applied to Sainfil
vest at Marcy’s house and that Sainfil was at that location. Specifically, when
asked where Sainfil was at Marcy’s house, Gahagen testified that he was in the
garage. After explaining that there was also activity in the back yard and
driveway, Gahagen was asked what people were doing. He replied, “We were in
the garage. We was preparing to go to the bank. The guns were getting cleaned,
zip ties were getting cleaned. Um, just preparing the guns and everything and
putting on their vests for one person” who, he then specified, was Wells with his
bulletproof vest. Although Gahagen had testified that Sainfil was in the garage
and then appeared to describe what transpired in the garage, the government took
the position that it was “unclear from the testimony whether Mr. Sainfil was in the
garage or present” when Wells put on the vest. App’x at 482. Because the district
court proceeded on the assumption that Sainfil did not have actual knowledge of
the body armor, we do likewise for purposes of this appeal.
31
because the conduct of his co-conspirators was “reasonably
foreseeable” to him. United States v. Ekwunoh, 12 F.3d 368, 370 (2d Cir.
1993). There is no “clear error” unless this Court “on the entire
evidence is left with the definite and firm conviction that a mistake
has been committed.” Id.Section 1B1.3 of the Sentencing Guidelines permits a sentencing
enhancement “on the basis of the following”:
in the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others,
whether or not charged as a conspiracy), all acts and
omissions of others that were—
(i) within the scope of the jointly undertaken
criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that
criminal activity;
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility
for that offense.
32
U.S.S.G. § 1B1.3(a)(1)(B). Under these circumstances, as relevant here,
the Guidelines provide for two-level enhancements (1) “[i]f any
person was physically restrained to facilitate commission of the
offense,” id. §§ 2B3.1(b)(4)(B), 3A1.3; and (2) if “the offense involved
the use of body armor,” id. § 3B1.5.
There is no dispute about the underlying facts: Wells wore a
bulletproof vest during the robbery, which he put on at the house
where the conspirators, including Sainfil, had gathered to prepare for
the robbery; and once inside the bank, Wells and others restrained
people with zip ties. There is also no dispute that Wells’s use of body
armor and the conspirators’ use of zip ties were “within the scope of
the jointly undertaken criminal activity,” § 1B1.3(a)(1)(B)(i), and “in
furtherance of that criminal activity,” § 1B1.3(a)(1)(B)(ii). Sainfil
argues that there was no direct evidence that he discussed the use of
body armor and zip ties with his co-conspirators, and that their use
was accordingly not reasonably foreseeable to him. We disagree.
33
As to the first question, the district court did not clearly err in
concluding that it was reasonably foreseeable to Sainfil that his co-
conspirators would use physical restraints (here, zip ties) during the
bank robbery. As the district court observed, the robbery was
planned to occur during regular business hours, when it would be
reasonable to expect both employees and customers to be present. We
agree with the government’s observation that “[t]he success of a bank
robbery depends in significant part on the coconspirators’ ability to
prevent bank employees and customers from impeding the robbery
or reporting it to law enforcement, and restraining victims in
furtherance of that goal is reasonably foreseeable to all
coconspirators.” Gov’t Br. at 50. The use of physical restraints was
especially foreseeable in the present situation, where the robbery was
meticulously planned in advance, with Sainfil meeting alongside
numerous participants at a pre-selected location where they dressed,
prepared their guns, and wiped off any trace of fingerprints from
34
their equipment (even down to the bullets) to avoid later detection.
And the foreseeability of such restraints was certainly within the
reasonable contemplation of Sainfil, who had taken a leading role as
organizer alongside Homere. Indeed, they discussed the possibility
of kidnapping—that is, restraining—a bank teller the night before the
robbery.
Likewise, the district court did not clearly err in finding that the
use of body armor was reasonably foreseeable to Sainfil. The district
court identified several key facts: (1) the number of participants in the
crime: four robbers entered the bank; (2) the use of firearms: one of
the robbers was armed with an assault weapon, another had a pistol,
and the other two had BB guns; (3) the nature of the target: the
conspirators were robbing a bank during the workday; and (4) the
possible presence of other firearms: there might be a security officer
present. The court concluded that under these circumstances, it was
reasonably foreseeable there might be gunfire involved, either from
35
bank security or the robbers, and so it would be foreseeable that a
robber would wear body armor.
We find no clear error in the district court’s conclusion. The
number of participants in the robbery, and the fact that they were all
armed—including one with an AK-47—substantially increased the
likelihood that gunfire might erupt. The likely presence of a security
officer, who might also be armed, further increased those odds.
Indeed, as Chance testified, Sainfil was particularly attuned to the
presence of security guards. During the preparatory phase, Sainfil
worried aloud to Chance and Homere that he had seen new security
guards at the bank, and asked why there was a new security guard.
Chance testified that when she explained that she did not know the
answers to his questions, because she no longer worked at the bank,
Sainfil grew visibly frustrated.4 Given these circumstances, it was
4Sainfil argues that, in this case, there was no evidence that any security
guards were actually present during the actual robbery. But the relevance of
guards is not whether they were actually present, but whether it was reasonably
36
reasonably foreseeable to Sainfil—who, the evidence showed, had
meticulously planned the whole operation over a matter of months—
that a member of the robbery crew would wear body armor to protect
himself from gunfire.
In reaching this determination, the district court reasonably
applied the logic of Application Note 3(D) to section 1B1.3, which
states that one co-conspirator’s assault of a robbery victim is
“reasonably foreseeable” to all co-conspirators in the robbery “given
the nature of the offense,” even where the other co-conspirators “had
not agreed to the assault and had cautioned the [other co-conspirator]
to be careful not to hurt anyone.” U.S.S.G. § 1B1.3, app. note 3(D); see
also United States v. Molina, 106 F.3d 1118, 1121–22 (2d Cir. 1997)
(holding that it was “reasonably foreseeable” under U.S.S.G. § 1B1.3
foreseeable that a co-conspirator would be moved to wear body armor because of
the guards’ possible presence. Here, Sainfil openly fretted about the possibility of
guards, which made it all the more foreseeable to him that one of his co-
conspirators might have the same worries and take the precaution of wearing a
bulletproof vest.
37
that members of a robbery conspiracy would fire their weapons in
furtherance of the conspiracy, where the co-conspirators carried
weapons, including a machine gun, and were robbing an armored
vehicle guarded by men carrying sidearms, even though they had
agreed in advance to not discharge their weapons). Here, given the
“nature” of this particular bank robbery, the use of body armor was
reasonably foreseeable to Sainfil.
Finally, we reject Sainfil’s contention that the application of the
body armor enhancement in this case would lead to the automatic
application of that enhancement to any armed bank robbery.
Sentencing involves an individualized assessment of all the
circumstances in a given case. The number and identity of
participants in an armed robbery, the number and type of firearms
involved, and the extent of a particular defendant’s involvement in
planning will vary considerably from case to case. It is the role of the
district court to conscientiously sift through these facts, making a
38
case-specific determination of whether the enhancement applies. It
may be that a different judge might have reached a different
conclusion on this record. But “where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” United States v. Sash, 396 F.3d 515, 521 (2d Cir.
2005) (alterations omitted). There was no clear error here.
E. Substantive reasonableness
Finally, Sainfil’s challenge to the substantive reasonableness of
his sentence fails because his 219-month sentence is not “so
shockingly high . . . or otherwise unsupportable as a matter of law
that allowing [it] to stand would damage the administration of
justice.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012)
(internal quotation marks omitted). The district court properly
concluded that Sainfil was an “essential part” of this “horrendous”
crime. App’x at 509. The court further concluded that people, like
Sainfil, who “decide to commit armed takeovers of banks should
understand if they are apprehended and if they are ultimately
39
convicted, that dire consequences will follow.” Id. at 509–10. In light
of the district court’s assessment of the § 3553(a) factors, a bottom-of-
the-Guidelines-range sentence of 219 months of imprisonment is not
substantively unreasonable.
Sainfil complains that he received a disparately high sentence
compared to his co-conspirators, including those who entered the
bank. But this argument fails. First, we have explained that “section
3553(a)(6) requires a district court to consider nationwide sentencing
disparities, but does not require a district court to consider disparities
between co-defendants.” United States v. Frias, 521 F.3d 229, 236 (2d
Cir. 2008). Second, Sainfil does not recognize that “a reasonable
explanation of the different sentences here is readily apparent,
namely, the varying degrees of culpability and cooperation between
the various defendants.” United States v. Ebbers, 458 F.3d 110, 129 (2d
Cir. 2006). He was a key organizer of the bank robbery, and he did
40
not cooperate or accept responsibility for his actions. The district
court sentenced him reasonably.
III. Conclusion
In sum, we hold as follows:
(1) Sainfil was not prejudiced by his trial counsel’s failure to
move for suppression of his pre-Miranda statement to the
FBI, where he made a similar post-Miranda statement that
was undisputedly admissible.
(2) Sainfil’s trial counsel did not provide objectively deficient
performance when he conceded before the jury that Sainfil
was outside the bank on the day it was robbed, in light of
Sainfil’s post-Miranda admission, and abundant witness
testimony placing Sainfil outside the bank as a lookout.
(3) There was sufficient evidence to support Sainfil’s
convictions.
(4) Sainfil’s sentence was procedurally reasonable. The district
court did not clearly err in applying sentencing
41
enhancements based on its conclusion that, given the
circumstances in this case, it was reasonably foreseeable that
Sainfil’s co-conspirators would use physical restraints,
U.S.S.G. § 2B3.1(b)(4)(B), and body armor, U.S.S.G. § 3B1.5.
(5) Sainfil’s 219-month sentence, at the bottom of the advisory
Guidelines range, was substantively reasonable.
We therefore AFFIRM the judgment of the district court.
42
DENNIS JACOBS, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion in all respects except as to the application
of a two-level sentence enhancement for body armor. On that point, I
respectfully dissent.
I
My position on the body armor can be briefly stated. One of four bank
robbers wore a bulletproof vest; and it was not Anael Sainfil, who was the
lookout. The district judge found that Sainfil did not know that another robber
was wearing it. And there is no evidence that its use was reasonably foreseeable.
The particulars are as follows.
In 2015, nine conspirators began planning a bank robbery. The day of the
robbery, the crew that was to execute the plan met at a friend’s house, where
they used the garage to wipe their guns and zip ties clean of fingerprints. One of
the robbers, named Wells, used the opportunity to strap on his bulletproof vest.
Sainfil entered the garage at some point, but the record does not show when he
was there, or what he saw. He was not there the whole time because, pursuant
to his lookout duties, he left the house early to scope out the bank.
The four robbers arrived at the bank in one car. Sainfil, who had arrived
earlier, gave the all clear, and the four entered the bank and announced that they
were there to rob it. One carried a rifle, another had a revolver, and the other
two displayed BB guns. Two ordered the bank tellers to open safes and the ATM
inside the vault. The other two zip-tied the remaining employees and customers.
The crew left with more than $375,000, but didn’t get far. A bank employee had
slipped a GPS tracking device into the bag of cash, which allowed the police to
quickly find and corner the getaway car.
In 2018, Sainfil was convicted of armed bank robbery and related offenses.
The Presentence Investigation Report calculated an offense level of 30. This
figure included, as relevant to this appeal, two-level enhancements for the use of
physical restraints and the use of body armor during the robbery. See U.S.S.G.
§ 2B3.1(b)(4)(B) (physical restraints); U.S.S.G. § 3B1.5 (body armor). The total
effective Guidelines range was 219-252 months’ imprisonment. The district court
imposed a sentence of 219 months.
On appeal, Sainfil challenges application of the sentencing enhancements
for both the use of physical restraints and the use of body armor.
2
II
I agree with the majority opinion that we must affirm the enhancement for
the use of physical restraints. The district court found that the use of physical
restraints was “reasonably foreseeable” given that the robbers entered the bank
“during business hours” when “[t]here are people in the bank” whom one
“would want to immobilize.” App’x at 485-86. The government and majority
both explained that such immobilization is necessary to “[t]he success of a bank
robbery.” Maj. Op. at 34 (quoting Gov’t Br. at 50). That is evidently why half the
criminal manpower that entered the bank was devoted only to restraining people
who were not forced to help in looting the safe.
The body armor enhancement, which added over two years to the top and
bottom of the Guidelines range, is different in kind. The district court
“accept[ed]” that Sainfil “didn’t know that Mr. Wells was wearing the body
armor.” App’x at 481. Instead, the district court relied on the idea that the use of
body armor was reasonably foreseeable:
One of the individuals had an AK-47. They are robbing
a bank. There may be a security officer. They are robbing
the bank during the workday. A reasonable person
would understand under those circumstances that there
3
may be gunfire involved, either by a security personnel
with the bank or by one or more of the co-conspirators.
So it would make sense to wear body armor.
Id.
However, there is no record evidence that the supposedly elaborate
planning ascertained whether a guard was or would be there, or whether the
guard (if there was one) was armed. More importantly, the district court’s
finding relies on the reasonable foreseeability of gunfire, not of body armor.
True, body armor is not (yet) a fashion statement and is rarely (if ever) worn
when there is no risk of gunfire. But that does not mean that whenever there is a
risk of gunfire, the use of body armor follows. The district court’s reasoning
sweeps too broadly, and would result in a foreseeability finding whenever
someone (else) wears body armor. This proves too much.
The majority, following the line of the district court, notes that Sainfil
“meticulously planned the whole operation,” and that it was reasonably
foreseeable “that a member of the robbery crew would wear body armor to
protect himself from gunfire.” Maj. Op. at 37. But a mastermind would not
allocate one vest to four robbers.
4
The foreseeability analysis is so tenuous that the majority opinion, in
footnote 3, labors to advance an alternative ground of actual knowledge. The
majority contends “that Sainfil was in the same room as Wells when [he] donned
his body armor.” Id. at 30 n.3. Actually, that is not so. As I explained above,
there is no evidence that Sainfil was there at that time. Moreover, that effort is
defeated by the candid and decisive concession that “the government took the
position that it was ‘unclear from the testimony whether Mr. Sainfil was in the
garage or present’ when Wells put on the vest.” Id. at 31 n.3 (quoting App’x at
482). In any event, the district court made a finding (which no one contests) that
Sainfil did not know about the use of body armor; and that finding precludes the
guess that Sainfil may have been in the garage and saw it being strapped on.
III
I conclude that the district court clearly erred in its finding of reasonable
foreseeability. The government contends that rejection of that finding would
impose in effect an actual knowledge standard. Not so. The problem here is that
there is no evidence of knowledge or of foreseeability, notwithstanding that the
government sponsored the testimony of three (out of nine) conspirators,
5
including Wells (who donned the vest). The government did not elicit from
them at trial whether body armor was mentioned in the planning, or whether (or
how) Sainfil knew that a co-conspirator owned such armor. Its existence and
use, so far as the record reveals, was unknown to Sainfil and unforeseeable.
The affirmance of the body armor enhancement reduces reasonable
foreseeability to a guess, and results in an unjustified piling on of sentencing
enhancements. See United States v. Broxmeyer, 699 F.3d 265, 297-305 (2d Cir.
2012) (Jacobs, J., dissenting).
6