United States v. Moreno-Montenegro

12-3040-cr
United States v. Moreno-Montenegro
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 27th day of
January, two thousand thirteen.
Present:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
GUIDO CALABRESI,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 12-3040-cr
JOSE EMILIANO MORENO-MONTENEGRO,
Defendant-Appellant.
________________________________________________
For Appellee: David C. James and Margaret Lee, Assistant United States
Attorneys for Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn, N.Y.
For Defendant-Appellant: Steven Y. Yurowitz, New York, N.Y.
Appeal from the United States District Court for the Eastern District of New York
(Dearie, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED IN PART, and the case is
REMANDED.
Defendant-Appellant Jose Emiliano Moreno-Montenegro appeals from a judgment of
conviction and sentence entered on July 24, 2012 by the United States District Court for the
Eastern District of New York (Dearie, J.). On August 11, 2011, Moreno-Montenegro pled guilty
to one count of conspiracy to import heroin into the United States in violation of 21 U.S.C.
§§ 963, 960(a)(1), 960(b)(1)(A), & 952(a), and one count of conspiracy to distribute heroin
intending that it would be unlawfully imported into the United States in violation of 21 U.S.C.
§ 963, 960(a)(3), 960(b)(1)(A) & 959(a)(1). On May 24, 2012, the district court sentenced
Moreno-Montenegro principally to 78 months’ imprisonment, to run concurrently on each count,
followed by five years’ supervised release. On appeal, Moreno-Montenegro argues that his
separate convictions and sentences on both counts of the indictment violate the Double Jeopardy
Clause of the Fifth Amendment. He also argues that the district court erred at sentencing by
failing to properly consider his claim of economic duress. We presume the parties’ familiarity
with the relevant facts, procedural history, and issues presented for review.
We review a Double Jeopardy claim raised for the first time on appeal for plain error. See
United States v. Polouizzi, 564 F.3d 142, 153–54 (2d Cir. 2009). To establish plain error, an
appellant must show “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. at 154
(quoting Johnson v. United States, 520 U.S. 461, 467 (1997)) (internal quotation marks and
alternations omitted). “If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson, 520 U.S. at 467)
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(internal quotation marks omitted). We conclude that Moreno-Montenegro has met these
stringent requirements here.
The Double Jeopardy Clause “prohibits multiple punishments for the same offense,”
United States v. Weingarten, 713 F.3d 704, 708 (2d Cir. 2013), and it is well established that “[a]
single agreement to commit several crimes constitutes one conspiracy,” United States v. Broce,
488 U.S. 563, 570–71 (1989). In this case, it is clear from the record of Moreno-Montenegro’s
plea that he entered into only one conspiratorial agreement, albeit with multiple unlawful
objects. At the plea colloquy, Moreno-Montenegro described his offense conduct as follows:
I agreed with Fercelo (ph) . . . . He had some drugs that were ready here, so I was
going to introduce him to Jessica so that she could sell them and he would give
me a commission of $6,000. . . . Ferselo (ph) and I discussed the fact that he had
eleven or more kilos of heroin for import, I actually didn’t see them, however, he
talked about it, he told me he had them and said to him, oh well, Jessica needs
some, I introduced them over the phone, they talked and agreed . . . .
App. 12. There is no evidence in the record suggesting that Moreno-Montenegro participated in
more than one conspiracy. Indeed, even Government’s brief on appeal speaks in terms of a single
conspiracy. See Br. for the United States 20 (explaining that Moreno-Montenegro participated in
“a multifaceted conspiracy with Fercho and others”); id. at 21 (“As detailed in the [Presentence
Report], Moreno-Montenegro engaged in a conspiracy both to import heroin into the United
States and to distribute heroin abroad with the intent that it would be imported into the United
States.”).
The Government argues that Moreno-Montenegro waived his rights under the Double
Jeopardy Clause by pleading guilty to both counts of the indictment. To be sure, “the rights
afforded by the Double Jeopardy Clause are personal and can be waived by a defendant,” United
States v. Mortimer, 52 F.3d 429, 435 (2d Cir. 1995), but a “narrow exception to the waiver rule”
applies “when a double jeopardy claim is so apparent either on the face of the indictment or on
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the record existing at the time of the plea that the presiding judge should have noticed it and
rejected the defendant’s offer to plead guilty to both charges,” United States v. Kurti, 427 F.3d
159, 162 (2d Cir. 2005); see also Broce, 488 U.S. at 575–76 (discussing this exception). Here,
the double jeopardy violation is apparent from the record at the plea colloquy, which provides no
basis for concluding that the Moreno-Montenegro entered into more than one unlawful
agreement. This case thus falls squarely within the exception to the general waiver rule.
Having found an error that is unexcused by waiver, we turn to whether the requirements
for plain error have been satisfied. “An error is ‘plain’ if the ruling was contrary to law that was
clearly established by the time of the appeal.” United States v. Irving, 554 F.3d 64, 78 (2d Cir.
2009). The principle that a single agreement to commit multiple crimes constitutes a single
conspiracy is well settled and has been applied by this Court on numerous occasions in
numerous contexts. See, e.g., United States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006); United
States v. Pressley, 469 F.3d 63, 65 (2d Cir. 2006). The error here was plain.
In addition, the error also affects Moreno-Montenegro’s substantial rights. As the
Supreme Court has explained, “separate conviction[s], apart from the concurrent sentence[s],
ha[ve] potential adverse collateral consequences that may not be ignored.” Ball v. United States,
470 U.S. 856, 865 (1985). Moreno-Montenegro’s second conviction also carried a second special
assessment, which could not have been imposed absent the double jeopardy error. See Rutledge
v. United States, 517 U.S. 292, 301–03 (1996).
Finally, the error here seriously affects the fairness, integrity, and public reputation of
judicial proceedings. “When ‘a federal court exceeds its own authority by imposing punishments
not authorized by Congress, it violates not only the specific guarantee against double jeopardy,
but also the constitutional principle of separation of powers in a manner that trenches
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particularly harshly on individual liberty.’” United States v. Gore, 154 F.3d 34, 48 (2d Cir. 1998)
(quoting Whalen v. United States, 445 U.S. 684, 689 (1980)). We accordingly exercise our
discretion and notice the forfeited error.
With respect to the appropriate remedy, Moreno-Montenegro requests a remand for de
novo resentencing, contending that vacating one of his convictions “‘effectively undoes the
entire knot of calculation’ underlying the original sentencing.” United States v. Barresi, 361 F.3d
666, 672 (2d Cir. 2004) (quoting United States v. Quintieri, 306 F.3d 1217, 1228 (2d Cir. 2002).
We disagree. The two offenses here were considered together throughout the proceedings below,
and the district court ultimately imposed identical concurrent sentences for both counts.
Moreover, as explained below, we find no other error in the defendant’s sentencing. In
accordance with our practice in such circumstances, we accordingly will remand with
instructions for the district court to vacate the conviction on one of the two counts and to enter
an amended judgment. See, e.g., United States v. Miller, 116 F.3d 641, 685 (2d Cir. 1997).
In addition to his double jeopardy claim, Moreno-Montenegro also argues that the district
court erred at sentencing by failing to properly consider his claim of economic duress. We
review criminal sentences under an abuse-of-discretion standard for procedural and substantive
reasonableness. United States v. Cavera, 550 F.3d 180, 187, 189 (2008) (en banc). A sentence is
procedurally unreasonable where the district court “commit[s] [a] significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is substantively
unreasonable “only in exceptional cases where the trial court’s decision ‘cannot be located
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within the range of permissible decisions.’” Cavera, 550 F.3d at 189 (quoting United States v.
Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
Here, Moreno-Montenegro contends that the district court committed two procedural
errors. First, he argues that the district court “imposed an impermissible burden” by improperly
“requiring” the defendant to corroborate his claim that he was extorted by Colombian guerrillas.
Appellant’s Br. 17, 18. The record, however, shows that district court did not in fact require
Moreno-Montenegro to provide corroboration in order to have his claim of economic duress
considered. Rather, the district court merely noted the lack of corroboration in deciding how
much weight to accord the defendant’s claims. “The particular weight to be afforded aggravating
and mitigating factors ‘is a matter firmly committed to the discretion of the sentencing judge.’”
United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (quoting United States v.
Fernandez, 443 F.3d 19, 32 (2d Cir. 2006)).
Second, Moreno-Montenegro claims that the district court’s response to his extortion
claims—in which the court stated, “you won’t be surprised to hear me say it doesn’t justify this
kind of seriously criminal conduct,” App. 32—shows that the court improperly regarded his
duress claim as a complete defense rather than a mitigating sentencing factor. This argument is
belied by the remainder of the record. At the time of sentencing, Moreno-Montenegro had
already pled guilty, and the district court was fully aware that it was presiding over a sentencing,
and not a bench trial, motion to withdraw a guilty plea, or the like. And absent unusual
circumstances, “sentencing courts are presumed to know and follow the applicable sentencing
law.” United States v. Regalado, 518 F.3d 143, 148 (2d Cir. 2008) (per curiam). There was no
procedural error here.
To the extent Moreno-Montenegro challenges the substantive reasonableness of his
sentence, that challenge is without merit. In light of the § 3553(a) factors and the record at
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sentencing, the district court’s below-Guidelines sentence easily falls within the range of
permissible decisions under the circumstances. See United States v. Friedberg, 558 F.3d 131,
137 (2d Cir. 2009) (“[I]n the overwhelming majority of cases, a Guidelines sentence will fall
comfortably within the broad range of sentences that would be reasonable in the particular
circumstances.” (quoting United States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008))).
We have considered all of the parties’ remaining arguments and find them to be without
merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED
IN PART, and the case is REMANDED with instructions for the district court to vacate the
conviction on one of the two counts and to enter an amended judgment.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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