United States v. Colon

11-2240 (L)
United States v. Colon
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 12th day of June, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judge,
10 JOHN F. KEENAN,*
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 11-2240 (Lead)
18 11-4591 (Con)
19 ANGEL COLON, AKA A, GABRIEL BORIA, AKA
20 INDIO, BENNY ROSARIO, AKA BENNY
21 BLANCO, EDUARDO SILVA, AKA LONG HAIR,
22 MAUDO FRANCISCO GUITI-LOPEZ, AGENT OF
23 MODESTO ANDRES MORRELL PEREZ, AKA
*
Judge John F. Keenan, of the United States District
Court for the Southern District of New York, sitting by
designation.
1
1 MYSTERIO, JONATHAN ASCA-TORRES, HERMAN
2 BURTON, DONALD CANNON, JORGE CENTENO,
3 AKA GEE KEE, AKA G, JOSE DE LA CRUZ,
4 AKA NENE, GUALBERTO FINES, AKA CHUCKY,
5 ANGEL GONZALEZ, OTIS JONES, AKA O,
6 DAMIAN LEWIS, THELONIOUS MONK, AKA
7 SHAKA, LIONEL VEGA, AKA PIPO, PURYEAR
8 VENABLE, AKA PRIMO, CHARLES WARNER,
9 AKA C.J., KEVIN WASHINGTON, JAMES
10 WILLIAMS, AKA C.O. VAUGHN, THOMAS
11 CARTER LOVE, DAAMU DIGGS, AKA SMOKE,
12 AKA MOOK, CARLOS RIVERA, AKA C.O.
13 MOCO, AKA MOC,
14 Defendants,
15
16 MARK COLON, AKA MARCOS, AKA MONO, AKA
17 FATHER, AKA WOODY, SANTOS CRESPO-
18 AYUSO, AKA SANTI,
19 Defendant-Appellants.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT COLON: RICHARD M. LANGONE, Langone &
23 Associates, PLLC, Levittown, New
24 York.
25
26 FOR APPELLANT MICHAEL K. BURKE, Burke, Miele &
27 CRESPO-AYUSO: Golden, LLP, Goshen, New York.
28
29 FOR APPELLEES: BENJAMIN ALLEE, Assistant United
30 States Attorney for the Southern
31 District of New York, New York,
32 New York (Iris Lan, Assistant
33 United States Attorney for the
34 Southern District of New York,
35 New York, New York, on the
36 brief) for Preet Bhahara, United
37 States Attorney for the Southern
38 District of New York, New York,
39 New York.
40
41 Appeal from judgments of United States District Court
42 for the Southern District of New York (McMahon, J.).
43
2
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
2 AND DECREED that the judgments of the district court be
3 AFFIRMED.
4
5 Mark Colon and Santos Crespo-Ayuso appeal their
6 sentences, entered in the United States District Court for
7 the Southern District of New York (McMahon, J.), following
8 pleas of guilty to conspiracy to distribute cocaine and
9 crack cocaine, and (for Colon) distribution of cocaine. On
10 May 24, 2011, the district court sentenced Colon to 210
11 months’ imprisonment (at the low end of the Guidelines
12 range) and imposed an order of forfeiture totaling
13 $1,750,000. On October 21, 2011, the district court
14 sentenced Crespo-Ayuso to 135 months’ imprisonment--also a
15 low-end Guidelines sentence--and likewise imposed an order
16 of forfeiture totaling $1,750,000. We assume the parties’
17 familiarity with the underlying facts, the procedural
18 history, and the issues presented for review.
19
20 Appellate review of a district court’s sentence
21 “encompasses two components: procedural review and
22 substantive review.” United States v. Cavera, 550 F.3d
23 180, 189 (2d Cir. 2008) (in banc). An appellate court
24 “must first ensure that the district court committed no
25 significant procedural error, such as failing to calculate
26 (or improperly calculating) the Guidelines range, treating
27 the Guidelines as mandatory, failing to consider the Section
28 3553(a) factors, selecting a sentence based on clearly
29 erroneous facts, or failing to adequately explain the chosen
30 sentence--including an explanation for any deviation
31 from the Guidelines range.” Gall v. United States, 552
32 U.S. 38, 51 (2007). If the Court determines that there was
33 no procedural error, it “should then consider the
34 substantive reasonableness of the sentence imposed under an
35 abuse-of-discretion standard.” Id. at 51. “In general, we
36 review a district court’s determination that a defendant
37 deserves a leadership enhancement under § 3B1.1 de novo, but
38 we review the court’s findings of fact supporting its
39 conclusion only for clear error.” United States v.
40 Hertular, 562 F.3d 433, 449 (2d Cir. 2009).
41
42 Colon argues, first, that the district court erred in
43 determining that he conspired to sell more than fifty
44 kilograms of cocaine. In particular, he attacks the
45 credibility of Maudo Francisco Guiti-Lopez, a co-defendant
46 who testified against him at a Fatico hearing. See United
47 States v. Fatico, 458 F. Supp. 388 (E.D.N.Y. 1978), aff’d
3
1 603 F.2d 1053 (2d Cir. 1979). Colon identifies several
2 alleged inaccuracies in Guiti-Lopez’s testimony, but none
3 suggests that Guiti-Lopez perjured himself. Moreover, such
4 credibility determinations are best left to the sound
5 discretion of the district courts. See United States v.
6 Jones, 531 F.3d 163, 171 (2d Cir. 2008) (“[D]istrict courts
7 hear all the evidence relevant to sentencing, make
8 credibility determinations, and interact directly with the
9 defendant. In the process, they ‘gain[] insights not
10 conveyed by the record’ that are often critical to
11 identifying a just sentence.”) (quoting Gall, 552 U.S. at
12 51) (internal citations omitted). Colon also offers these
13 examples to argue that the district court improperly relied
14 on Guiti-Lopez’s testimony to impose a leadership
15 enhancement under the Sentencing Guidelines, see U.S.S.G. §
16 3B1.1(a), but this argument fails for the same reasons.
17 Additionally, there was sufficient corroborative evidence,
18 e.g., wiretap recordings and testimony from other
19 cooperating witnesses, upon which the district court could
20 base this determination.
21
22 Both Colon and Crespo-Ayuso assert that the district
23 court failed to consider the § 3553 factors in arriving at
24 their respective sentences, see 18 U.S.C. § 3553(a), but the
25 record is plainly to the contrary.
26
27 Both Appellants also contend that the forfeiture
28 orders imposed by Judge McMahon were excessive because they
29 included gross proceeds of the offense rather than gross
30 profits. They argue that their expenses (approximately
31 $29,000 per kilogram of cocaine) should be subtracted from
32 the sale price (approximately $35,000 per kilogram), thereby
33 reducing the forfeiture order from $1.75 million to
34 $300,000. Under 21 U.S.C. § 853(a), courts “shall order, in
35 addition to any other sentence imposed . . . that the person
36 forfeit to the United States all property described in this
37 subsection” including “any property constituting, or derived
38 from, any proceeds the person obtained, directly or
39 indirectly, as the result of such violation.” We previously
40 calculated forfeiture amounts based on gross sales in the
41 context of food stamp fraud. See United States v. Uddin,
42 551 F.3d 176, 181 (2d Cir. 2009). We also upheld the use of
43 this method of calculation in other drug trafficking cases,
44 see, e.g., United States v. Roberts, 660 F.3d 149, 165-66
4
1 (2d Cir. 2011), as have our sister Circuits.1 Colon and
2 Crespo-Ayuso offer no compelling reason to abandon this
3 approach here.
4
5 For the foregoing reasons, and finding no merit in
6 Appellants’ other arguments, we hereby AFFIRM the judgments
7 of the district court.
8
9 FOR THE COURT:
10 CATHERINE O’HAGAN WOLFE, CLERK
11
1
See, e.g., United States v. Bucci, 582 F.3d 108, 123-
24 (1st Cir. 2009) (distinguishing United States v. Santos,
553 U.S. 507 (2008), a case relied on heavily by Appellants
here, because the money-laundering statute at issue in
Santos, unlike 21 U.S.C. § 853, sets forth a substantive
criminal offense and also refers only to “proceeds” rather
than “profits or other proceeds”); see also United States v.
Bader, 678 F.3d 858, 892-94 (10th Cir. 2012).
5