United States v. Gillon, Aguirre

20-4177 (L)
United States v. Gillon, Aguirre
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM-
MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED-
ERAL 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 United States Courthouse, 40 Foley Square, in the City of New York, on the
27th day of November, two thousand twenty-three.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 20-4177 (L), 22-46 (con)
TROY R. GILLON, HERMAN E. AGUIRRE, AKA 007,
AKA LUCKY, AKA PRIMO, AKA FREDDY,
Defendants-Appellants,
JOSE RUBEN GIL, AKA UNC, AKA RUBEN GIL
CAMPOS, AKA MAYOR OF MEXICO, SONIA HER-
NANDEZ, MARTHA AGUIRRE, JUAN ALFARO, MAR-
GARET BANUELOS, AKA LISA, DARRYL J. WIL-
LIAMS, AKA D, TRENT ADAIR HAMILTON, MICHAEL
PAUL MITCHELL, DEMETRIUS YARBOROUGH, AKA
TU-TU, RASHAWN CRULE, AKA BLACK, AKA
SHAWN, MAULANA LUCAS, AKA BIG DADDY, AKA
SHABAZZ, SHIRLEY GRIGSBY, RALIK HAMILTON,
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JOSEPH THOMPSON, AKA JO-JO, AKA SKOOLS,
AKA SKOOLBOY, DION CHEATHAM,
Defendants.
_____________________________________
For Appellee: SEAN ELDRIDGE (Katherine A. Gregory, on the brief),
Assistant United States Attorneys for Trini E. Ross,
United States Attorney for the Western District of New
York, Buffalo, NY.
For Defendant-Appellant Aguirre: SARAH KUNSTLER, Law Office of Sarah Kunstler,
Brooklyn, NY.
For Defendant-Appellant Gillon: JOSEPH Z. AMSEL, Law Office of Joseph Z. Amsel, New
York, NY.
Appeal from judgments of the United States District Court for the Western District of New
York (Vilardo, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court as to Defendant-Appellant Herman E. Aguirre
is AFFIRMED in part and REMANDED with instructions to vacate in part, and that the judgment
of the district court as to Defendant-Appellant Troy Gillon is AFFIRMED.
Following a trial by jury, Defendants-Appellants Herman E. Aguirre and Troy Gillon were
convicted of conspiracy to possess with the intent to distribute heroin, fentanyl, and cocaine, in
violation of 21 U.S.C. § 841 and § 846. Aguirre was also convicted of being a principal admin-
istrator of a continuing criminal enterprise (“CCE”), in violation of 21 U.S.C. § 848(a) and (b),
and money laundering conspiracy, in violation of 18 U.S.C. § 1956(h), (a)(1)(A)(i), and
(a)(1)(B)(ii). The district court (Vilardo, J.) sentenced Aguirre to life in prison on the CCE
charge, 300 months’ imprisonment on the narcotics conspiracy charge, and 240 months’ impris-
onment on the money laundering charge, all to run concurrently. The district court sentenced
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Gillon to 300 months’ imprisonment for his role in the narcotics conspiracy.
Before this court, Aguirre challenges his sentencing for both the CCE offense and the un-
derlying narcotics conspiracy, which is a lesser-included offense of the former, as a violation of
the Double Jeopardy Clause of the United States Constitution. Aguirre also appeals his convic-
tion on the grounds that the jury was improperly instructed as to the elements of a CCE offense
and that the government presented insufficient evidence to establish that he supervised five or
more persons or earned substantial income or resources from his crimes. Lastly, Aguirre con-
tends that his mandatory life sentence for the CCE offense violates the Eighth Amendment’s pro-
hibition on cruel and unusual punishment.
As for Gillon, he contends that the district court erred in denying his motion to suppress
evidence and his motions to dismiss the indictment or for a new trial pursuant to Federal Rule of
Criminal Procedure 33(a). Gillon also appeals his sentence on the ground that it is procedurally
and substantively unreasonable.
We agree that Aguirre’s sentencing for both the narcotics conspiracy and the CCE offenses
violates the Double Jeopardy Clause and therefore remand to the district court with instructions to
vacate one or the other. We disagree with Aguirre’s remaining contentions, as well as each of
Gillon’s challenges, and therefore affirm as to all other issues raised. We assume the parties’
familiarity with the underlying facts, procedural history, and arguments on appeal.
I. Aguirre’s Appeal
A. Double Jeopardy
At the start, the Government agrees that 21 U.S.C. § 846 is a lesser-included offense of 21
U.S.C. § 848. See Rutledge v. United States, 517 U.S. 292, 307 (1996) (noting “[a] guilty verdict
on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy
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violative of § 846; conspiracy is therefore a lesser included offense of CCE”). “Accordingly,
‘[o]ne of [Aguirre’s] convictions, as well as its concurrent sentence, is unauthorized punishment
for a separate offense’ and must be vacated.” Id. (quoting Ball v. United States, 470 U.S. 856,
864 (1985)). The decision as to which conviction to vacate is one we leave to the district court’s
discretion. Id.; see also United States v. Goodwin, 131 F.3d 132, at *7 (2d Cir. 1997) (un-
published opinion). We therefore remand with instructions for the district court to vacate
Aguirre’s conviction and sentence for either the narcotics conspiracy or the CCE.
B. Sufficiency of the Evidence
As to Aguirre’s sufficiency of the evidence argument, we review the denial of a Rule 29
motion de novo. United States v. Alcius, 952 F.3d 83, 86 (2d Cir. 2020) (per curiam). “A de-
fendant challenging the sufficiency of the evidence bears a heavy burden because a reviewing
court must consider the evidence in the light most favorable to the prosecution and uphold the
conviction if any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Bramer, 956 F.3d 91, 96 (2d Cir. 2020) (internal quotations
omitted); see also Alcius, 952 F.3d at 86. Under this standard, we “credit[] every inference that
the jury might have drawn in favor of the government, and recogniz[e] that the government’s evi-
dence need not exclude every other possible hypothesis.” United States v. Eppolito, 543 F.3d 25,
45 (2d Cir. 2008) (internal quotations and citations omitted). If competing inferences arise, we
defer to the jury’s choice, id., no matter whether the evidence under review “is direct or circum-
stantial.” United States v. Persico, 645 F.3d 85, 105 (2d Cir. 2011).
Aguirre challenges two elements of his CCE conviction, the first of which involves whether
he supervised five or more persons. Aguirre concedes that a reasonable jury could have found
him to be a supervisor of Sonia Hernandez, Martha Aguirre, and Roberto Tenas, but he argues that
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the evidence is insufficient to find him a supervisor over Jose Roben Gil, Darryl Williams, Mau-
lana Lucas, Troy Gillon, Margaret Banuelos, Juan Banuelos, or Juan Alfaro. Because Aguirre
did not raise this argument before the district court, we review the sufficiency of the evidence as
to this element for plain error.
Viewing the record in the light most favorable to the government, we conclude that the
evidence was sufficient for a reasonable jury to find that Aguirre supervised at least two other
individuals in addition to the three he conceded. “[G]enerally[,] a management or supervisory
relationship within the meaning of § 848 is ‘created when one person gives orders or directions to
another person who carries them out.’” United States v. Roman, 870 F.2d 65, 73 (2d Cir. 1989)
(quoting United States v. Stratton, 779 F.2d 820, 827 (2d Cir. 1985)). Furthermore, “[a] convic-
tion may be sustained on the basis of the testimony of a single accomplice, so long as that testimony
is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.”
United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) (internal citation omitted). At trial in this
case, Gil and Williams testified that Aguirre was their boss and that he directed their activities in
the conspiracy. Lucas, who accidentally threw away several kilograms of heroin that Aguirre
had shipped to Buffalo, testified that Aguirre made him dumpster dive to find them; when Lucas
could not locate one of the kilos, Aguirre told him either “work it off, or I’m gonna kill you.” GA
0788-0792. Their testimony provided sufficient evidence for the jury to find the necessary su-
pervisory relationships.
Although there is less direct testimony regarding Gillon’s relationship with Aguirre, evi-
dence at trial showed that the two had a meeting in December 2014 about distributing China White
(i.e., fentanyl), that Gillon received and distributed the drugs that Aguirre shipped to him, and that
Gillon had the same access to Aguirre that Williams did. Given our existing precedents that
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conclude even “streetcorner sellers” can be construed as within a kingpin’s supervision (no matter
whether the two had even met), the jury was entitled to find that Gillon “clearly operated within
an organization that [Aguirre] managed and organized.” United States v. Cruz, 785 F.2d 399,
407 (2d Cir. 1986). 1
With regards to Aguirre’s argument that the evidence was insufficient to prove that he
obtained substantial income from his narcotics activities, we again disagree. The CCE statute
“does not prescribe the minimum amount of money required to constitute ‘substantial’ income,
but the language clearly was intended to exclude trivial amounts derived from occasional drug
sales.” United States v. Losada, 674 F.2d 167, 173 (2d Cir. 1982). In Losada, we determined
that even $2,000 was “not so insignificant as to render the statute inapplicable.” Id. Here, the
more than $7,500 that Aguirre had in his possession at arrest exceeds the $2,000 threshold we
identified in that case. See also Roman, 870 F.2d at 75 (permitting an inference of substantial
income from the size of an organization, volume of sales, and $2,500 in ready cash). Moreover,
despite having filed for bankruptcy as to his legitimate businesses, Aguirre maintained a large
home with high-end electronics, jewelry, and classic cars during the period of the conspiracy.
Most importantly, Aguirre dealt in millions of dollars’ worth of narcotics, far more than the “tens
of thousands of dollars worth of narcotics” that we have already declared “[c]learly” sufficent for
1
The additional conspirators identified by the government, including the Banueloses and Alfaro,
were primarily involved in the money laundering conspiracy used to launder and then distribute the pro-
ceeds from the drug ring. We have recognized that an agreement to engage in “laundering proceeds” can
prove participation in a narcotics conspiracy. United States v. Orozco-Prada, 732 F.2d 1076, 1080 (2d
Cir. 1984). Moreover, the government need not prove that an individual knew the details of the conspir-
atorial scheme, nor the identities of the other conspirators. See United States v. Hawkins, 547 F.3d 66, 71
(2d Cir. 2008); United States v. Downing, 297 F.3d 52, 57 (2d Cir. 2002). Based on the evidence adduced
at trial, we conclude that the jury was entitled to find that Aguirre’s supervisory role in the drug conspiracy
encompassed the Banueloses and Alfaro, as well as the other supervisees.
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a jury to reasonably conclude that the defendant “derived substantial income from his narcotics
activities.” United States v. Casamento, 887 F.2d 1141, 1159 (2d Cir. 1989). Given all these
facts, a rational jury could have found the government proved the substantial resources element
beyond a reasonable doubt.
C. Jury Instructions
Aguirre next argues that the district court erred when it failed to instruct the jury that the
special conditions required under 21 U.S.C. § 848(b) must be shown “beyond a reasonable doubt.”
We again disagree. “To secure reversal, [Aguirre] must demonstrate that the instruction given
was erroneous, i.e., that when viewed as a whole, the instruction misled or inadequately informed
the jury ‘as to the correct legal standard.’” United States v. Felder, 993 F.3d 57, 63 (2d Cir. 2021)
(quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)), cert. denied, 142 S. Ct.
597 (2021). Furthermore, because he did not object below, we review this claim under a plain
error standard, exercising our discretion to reverse only if the error is clear, affected a defendant’s
substantial rights, and seriously affected the fairness or integrity of judicial proceedings. See
United States v. Calderon, 944 F.3d 72, 91 (2d Cir. 2019).
Applying these standards, we cannot conclude that the district court plainly erred. The
district court accurately described the five elements of a CCE offense and added that “only if” the
jurors agreed that those elements were met should they turn to the 21 U.S.C. § 848(b) special
conditions. GA 1289. Crucially, the district court repeatedly instructed the jury that each
charge had to be proven beyond a reasonable doubt. See, e.g., GA 1262 (“The question that you
must ask yourselves as you sift through the evidence on each count is: has the government proven
the guilt of the defendant . . . charged in that count beyond a reasonable doubt?”); see also GA
1265-66, 1284-90. The verdict sheet reiterated this requirement on the face of its first page:
7
“Your answers to the questions on this form must be unanimous. Before you may find a defend-
ant guilty on a certain count, you must find that the government has proven the essential elements
of that count against that defendant beyond a reasonable doubt.” A 309.
To be sure, the district court did not specifically instruct that the special conditions must
be shown beyond a reasonable doubt. But in the context of the entire instruction, see GA 1262-
1290, the jury was neither misled nor inadequately informed about the reasonable doubt standard.
Indeed, “beyond a reasonable doubt” was the only standard the jurors were ever instructed to apply.
With no evidence of confusion and no objection below, Aguirre has failed to establish plain error.
Aguirre also argues that the court erred by failing to tell the jury that it must find the enter-
prise in question “involved at least 300 times the quantity of the substance described in” 21 U.S.C.
§ 841(b)(1)(B). He suggests that the court “merely told the jury that it would be asked ‘to fill in
the amounts of the drugs involved in the continuing criminal enterprise,’” citing to the trial tran-
script. But the verdict sheet asked if the CCE involved “at least 30 kilograms of heroin and 150
kilograms of cocaine”— precisely 300 times the quantities described in the statute (i.e., 100 grams
of heroin, 500 grams of cocaine), as required by 21 U.S.C. § 848(b)(2)(A). This was not error. 2
2
After the parties submitted briefing, this Court decided United States v. Montague, 67 F.4th 520 (2d Cir.
2023), which held that 21 U.S.C. § 848(b)(2)(A)—requiring “the violation referred to in subsection (c)(1)
involve[] at least 300 times the quantity of a substance described in subsection 841(b)(1)(B)”—cannot be
satisfied by aggregating smaller drug quantities from multiple violations. In that case, the Montague court
went on to determine that the error did not substantially affect the defendant’s rights because the trial evi-
dence established that there was sufficient drug quantity without aggregation. Montague, 67 F.4th at 533-
38. Aguirre has not raised an argument based on Montague, but assuming arguendo that a Montague error
occurred, we conclude that any such error did not affect substantial rights for the same reason.
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D. Cruel and Unusual Punishment
Finally, Aguirre argues that the mandatory life sentence that the district court imposed on
him constitutes cruel and unusual punishment. With respect to CCE convictions, however, we
have affirmed that life sentences “are plainly within constitutional limits.” United States v.
Torres, 941 F.2d 124, 127 (2d Cir. 1991). We therefore reject his Eighth Amendment argument.
II. Gillon’s Appeal
A. Gillon’s Statements
Gillon first contends that the district court erred in denying his motion to suppress state-
ments he made to police before his arrest as involuntary. “On appeal from a challenged suppres-
sion order, we review a district court’s findings of fact for clear error, and its resolution of ques-
tions of law and mixed questions of law and fact de novo.” United States v. Haak, 884 F.3d 400,
408 (2d Cir. 2018). In this case, even assuming arguendo that Gillon was in custody at the time
of his initial statements to the federal investigators, he has not shown that the district court erred
in concluding that his statements were voluntary. Accordingly, his argument is without merit.
Gillon made the statements at issue during a meeting with federal law enforcement agents
at the Lockport police station early in the morning on March 10, 2015 and during two subsequent
meetings at locations Gillon selected. The district court found that federal agents and local police
told Gillon that he was not under arrest at least four times on March 10. They read Gillon his
Miranda rights and offered him an opportunity to contact his lawyer. We discern no error in the
district court’s conclusion that Gillon acted of his own accord in rejecting that option and talking
to the investigators, on that occasion and subsequently, without the advice of counsel. The dis-
trict court also did not err in determining that Gillon’s will was not overborne by any assurances
made by the investigators, who, as the district court found, never promised him immunity.
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Gillon argues that the court erred in denying his Rule 33(a) motion because prosecutors
breached a supposed immunity agreement arising from their encounters. “A court will not, how-
ever, readily imply an improper promise or misrepresentation from vague or ambiguous statements
by law enforcement officers. This is particularly so with respect to promises of leniency.”
Haak, 884 F.3d at 410. As discussed supra, the district court concluded that Gillon’s assertion
that the investigators promised him immunity is belied by the evidence. Far from clearly errone-
ous, this conclusion is amply supported by the record. The agents Gillon met with were unequiv-
ocal in their declarations that they could not make any promises on behalf of the United States
Attorney. In short, there was no immunity agreement for prosecutors to have breached, and
therefore the district court did not err by denying Gillon’s motion.
B. Sentencing
Gillon finally argues that his sentence is procedurally and substantively unreasonable based
on allegedly incorrect Guidelines calculations by the district court and the relatively more lenient
sentences that his co-conspirators received. We review the procedural and substantive reasona-
bleness of a sentence “under a deferential abuse-of-discretion standard.” United States v. Rich-
ardson, 958 F.3d 151, 153 (2d Cir. 2020) (internal citation omitted).
Gillon contends that the district court improperly calculated the Guidelines in several ways.
First, he argues that the court chose an incorrect base offense level by including the activities of
his co-conspirator, Williams, as relevant conduct. But in the context of jointly undertaken crim-
inal activity, the acts or omissions of others constitute relevant conduct if they were within the
scope of the jointly undertaken activity, in furtherance of the activity, and reasonably foreseeable
in connection with the activity. USSG § 1B1.3. The evidence at trial showed that Gillon and
10
Williams worked together with Aguirre and moved narcotics between themselves, so it was not an
abuse of discretion for the district court to group Gillon’s activities with Williams’.
Second, Gillon argues that it was error to use the “multiplier method” in determining that
six kilograms of drugs were distributed each week from June 2013 through September 2015 in the
Western District of New York. It is true that the volume and frequency of drug deliveries were
inconsistent throughout the charged period, but the cutoff for the relevant base offense level was
90,000 kilograms or more of narcotics. See USSG § 2D1.1(a)(5); Gillon PSR ¶69. Because the
total amount attributed to Gillon was 235,000 kilograms, even accounting for a break in deliveries
between March and September 2015 would not have lowered the relevant amount below the
90,000-kilogram threshold. It was therefore not an abuse of discretion for the district court to use
the multiplier method.
Third, Gillon claims that he was a minor figure in the organization and thus that the four-
point enhancement for being a leader or organizer pursuant to USSG § 3B1.1 was improper.
While he may have had a smaller role than Aguirre or Gil, “[t]here can, of course, be more than
one person who qualifies as a leader or organizer of a criminal association or conspiracy.” United
States v. Escotto, 121 F.3d 81, 86 (2d Cir. 1997) (quoting USSG § 3B1.1 cmt. n.4). The district
court found at sentencing that Aguirre “played a pivotal role in facilitating the conspiracy here in
Western New York.” GA 1328. The district court adopted the Presentence Report (“PSR”) as
its findings of fact, including the PSR’s description of how Gillon was the primary organizer and
leader of the Western New York-based arm of the conspiracy. Because “[a] district court satisfies
its obligation to make the requisite factual findings when it indicates in its written judgment that it
is adopting the findings set forth in the PSR,” United States v. Eyman, 313 F.3d 741, 745 (2d Cir.
2002), we discern no error in the district court’s well-reasoned decision to apply the enhancement.
11
Fourth, Gillon argues the district court erred when it computed Gillon’s criminal history
category based, in part, on a finding that the instant crime was committed within 15 years of Gil-
lon’s release from imprisonment for a 1995 conviction for conspiracy to distribute cocaine. We
disagree. The district court properly recognized that, with regards to his 1995 conviction, Gillon
violated the terms of his supervised release and was therefore sentenced to 24 additional months
in prison in March 2001. GA 1312. The latest possible date for the commencement of Gillon’s
drug conspiracy offense is September 2015, less than 15 years after his release from imprisonment
for the 1995 conviction. Thus, the district court did not err in calculating his criminal history
category.
Gillon also contends that the sentence he received is substantively unreasonable because it
is longer than the sentences imposed on defendants he characterizes as more culpable. But a
sentence is only substantively unreasonable if it is “so shockingly high, shockingly low, or other-
wise unsupportable as a matter of law that allowing [it] to stand would damage the administration
of justice.” United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (quoting United States v.
Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012)). “Mere disagreement” with how the sentencing
court balanced the relevant sentencing factors is not a sufficient basis to find that the court abused
its discretion. United States v. Halvon, 26 F.4th 566, 569 (2d Cir. 2022). Based on the remark-
able volume of narcotics involved and Gillon’s unique role in trafficking them, his sentence is not
“shockingly high” nor “otherwise unsupportable as a matter of law.” United States v. Rigas, 583
F.3d 108, 123 (2d Cir. 2009). When reviewing substantive reasonableness of a sentence, this
Court’s practice is to “exhibit restraint, not micromanagement.” United States v. Fleming, 397
F.3d 95, 100 (2d Cir. 2005). We therefore affirm the district court’s sentencing judgment.
* * *
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We have considered the remaining arguments by both Aguirre and Gillon and find them to
be without merit. Accordingly, we REMAND to the district court with instructions to vacate
either Aguirre’s 300-month sentence under 21 U.S.C. §§ 841 and 846 or his concurrent life sen-
tence under 21 U.S.C. § 848, and we AFFIRM all other challenged aspects of the judgments on
appeal.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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