United States v. Nino , 535 F. App'x 18 ( 2013 )

11-520-cr
United States v. Nino
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
ASUMMARY ORDER@). A PARTY CITING 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 5th day of September, two thousand thirteen.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
Appellee,
v. No. 11-520-cr
JOSE DE JESUS LEON NINO,
Defendant-Appellant.
----------------------------------------------------------------------
FOR APPELLANT: Julia Pamela Heit, Esq., New York, New York.
FOR APPELLEE: Zachary Feingold, Brent S. Wible, Assistant United
States Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New York, New
York, New York.
1
Appeal from a judgment of the United States District Court for the Southern District
of New York (Shira A. Scheindlin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on January 31, 2011, is AFFIRMED.
Jose de Jesus Leon Nino, who stands convicted of conspiracy to import and
conspiracy to distribute and possess with the intent to distribute at least one kilogram of
heroin, see 21 U.S.C. §§ 841(b)(1)(A)(i), 846, 960(b)(1)(A), 963, appeals from that part of
the judgment ordering him to forfeit $100,000 in drug proceeds, see id. §§ 853(a)(1), 970.1
We assume the parties’ familiarity with the facts and record of the underlying proceedings,
which we reference only as necessary to explain our decision to affirm.
Where the government seeks forfeiture of property purportedly derived from drug
trafficking, it bears the burden of proving, by a preponderance of the evidence, the facts
necessary to support forfeiture. See Fed. R. Crim. P. 32.2; United States v. Treacy, 639
F.3d 32, 48 (2d Cir. 2011); United States v. Capoccia, 503 F.3d 103, 116 (2d Cir. 2007).
Nino contends that the district court’s forfeiture order lacked factual support in the record.
Specifically, he claims that the record fails to show the requisite nexus between the offense
of conviction and the $100,000. See Fed. R. Crim. P. 32.2.
1
This court has already dismissed Nino’s appeal of the custodial component of his
sentence, and affirmed the judgment with respect to Nino’s conviction, his term of
supervised release, and the special assessment imposed upon him by the district court.
See United States v. Nino, No. 11-520 (2d Cir. Jul. 20, 2012) (order dismissing appeal in
part, summarily affirming in part, and denying summary affirmance in part). Thus, this
forfeiture challenge is all that remains of the direct appeal from the criminal judgment.
2
On appeal of a forfeiture order, we generally review the district court’s findings of
fact for clear error and its legal conclusions de novo. See United States v. Sabhnani, 599
F.3d 215, 261 (2d Cir. 2010). Where no forfeiture error was raised in the district court,
however, the claim of error is forfeited on appeal, and we review only for plain error. See
Fed. R. Crim. P. 52(b); United States v. Uddin, 551 F.3d 176, 181 (2d Cir. 2009); see also
United States v. Marcus, 130 S. Ct. 2159, 2164-65 (2010) (detailing showing required for
plain error). Here, Nino not only failed to raise a forfeiture objection in the district court,
but also specifically stated, through counsel, that he had reviewed the proposed forfeiture
order and had no objection to it. This might well be viewed as a true waiver, precluding
appeal. See United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Gomez,
617 F.3d 88, 92 (2d Cir. 2010). Such a waiver appears to have been in Nino’s tactical
interest, as a hearing might have revealed that Nino’s drug trafficking realized proceeds far
in excess of $100,000. We need not here conclusively decide whether Nino’s forfeiture
claim was waived or forfeited because, in any event, he fails to demonstrate error.
In the agreement pursuant to which he pleaded guilty, Nino admitted that between
2000 and 2008, he had “conspired to import, distribute, or possess with intent to distribute
at least 10 kilograms but less than 30 kilograms of heroin.” Government Addendum 2;
see Fed. R. Crim. P. 32.2(b)(1)(B) (stating that forfeiture determination may be based “on
evidence already in the record, including any written plea agreement”). The wholesale
price of a kilogram of heroin in the eight years between 2000 and 2008 appears to have
ranged from $60,000 to roughly $100,000. See United States v. Aina-Marshall, 336 F.3d
3
167, 169 (2d Cir. 2003); United States v. Azubike, 564 F.3d 59, 61 (1st Cir. 2009).2 We
assume that district judges in this circuit, who handle large numbers of wholesale-quantity
drug cases each year, are familiar with these prices and require no further evidence unless
the point is challenged. In short, because Nino admitted trafficking in a quantity of heroin
with a wholesale value at least in the high six figures, that admission by itself provided a
sufficient factual basis to support a preponderance finding that the proceeds realized by the
conspiracy were at least $100,000. See United States v. Treacy, 639 F.3d at 48 (holding
that forfeiture calculation is not “exact science” and that district court “may make
reasonable extrapolations” from evidence); see also United States v. Benevento, 836 F.2d
129, 130 (2d Cir. 1988) (recognizing forfeiture liability among criminal confederates to be
joint and several).
Because we conclude that the evidence was sufficient to support a preponderance
finding of nexus between the crimes of conviction and the $100,000 ordered forfeited,
Nino cannot demonstrate plain error in this respect. Nor has Nino demonstrated error, let
alone plain error, under Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States
v. Fruchter, 411 F.3d 377, 383 (2d Cir. 2005) (rejecting application of Apprendi rule to
criminal forfeiture proceedings).
2
In the second quarter of 2007, when agents seized six kilograms of heroin belonging to
Nino, see Presentence Report ¶¶ 17, 21, the median national wholesale price of heroin was
$117,110 per kilogram, see Institute for Defense Analyses, The Price and Purity of Illicit
Drugs: 1981-2007, App. B-12 (2008), available at
http://www.whitehouse.gov/sites/default/files/ondcp/policy-and-research/bullet_1.pdf.
4
We have considered Nino’s remaining arguments and reject them as without merit.
Accordingly, the order of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
5