17

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United States v. Lobo



### 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 United States Courthouse, 40 Foley Square, in the City of New

York, on the 20 th day of September, two thousand eighteen.

PRESENT: BARRINGTON D. PARKER,

PETER W. HALL,

RAYMOND J. LOHIER, JR.,

Circuit Judges

.

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐

United States of America,

Appellee

,

v. No. 17

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Ludwig Criss Zelaya Romero, Mario Guillermo Mejia

Vargas, Juan Manuel Avila Meza, Carlos Jose Zavala

Velasquez, Victor Oswaldo Lopez Flores, Jorge Alfredo

Cruz Chavez, Carlos Alberto Valladares Zuniga,

Defendants

,

Fabio Porfirio Lobo, AKA Fabio Porfirio Lobo Lobo, AKA

Fabio Lobo,

### 2 Defendant

‐ Appellant

.

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐

For Appellant: M ANUEL R ETURETA

, Retureta & Wassem, PLLC,

Washington, DC.

For Appellee: E MIL J. B OVE III, Assistant United States Attorney

(Matthew Laroche and Karl Metzner, Assistant United

States Attorneys, on the brief ), for Geoffrey S. Berman,

United States Attorney for the Southern District of New

York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Schofield, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 5, 2017 is AFFIRMED

.

Defendant Fabio Porfirio Lobo (“Lobo”) pleaded guilty to one count of conspiracy

to manufacture and distribute, and to import into the United States, five or more

kilograms of cocaine, in violation of 21 U.S.C. § 963, and was sentenced to 288 months of

imprisonment to be followed by five years of supervised release. Lobo used his position

as the son of a President of Honduras to help the Honduran drug trafficking organization

known as the “Cachiros” smuggle hundreds of kilograms of cocaine bound for the United

States through Honduras.

In a separate opinion filed concurrently with this summary order, we hold that the

district court did not err in applying the enhancement under U.S.S.G. § 2D1.1(b)(15)(C)

### 3 in its Guidelines calculation, and thus properly determined that Lobo’s drug

‐ related

activity outside the United States constituted “direct[] involve[ment] in the importation

of a controlled substance.” In this summary order we address Lobo’s remaining

argument that “his due process rights were violated at sentencing.” Appellant’s Br. at

26. Lobo alleges several errors with the imposition of his sentence that amount to

challenges to the procedural and substantive reasonableness of his sentence.

In our procedural and substantive review of a sentence imposed by a district court,

we apply a “deferential abuse

‐ of

‐ discretion standard.” United States v. Cavera

, 550 F.3d

180, 189 (2008) ( en banc ) (quoting Gall v. United States

, 552 U.S. 38, 41 (2007)). We assume

the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

I. Testimony of Cooperating Witness Devis Leonel Rivera Maradiaga

After Lobo entered his guilty plea, the parties requested an evidentiary hearing

pursuant to United States v. Fatico

, 603 F.2d 1053 (2d Cir. 1979). The government’s sole

witness at the Fatico hearing was Devis Leonel Rivera Maradiaga (“Rivera Maradiaga”),

one of the leaders of the Cachiros drug trafficking organization. The district court found

Rivera Maradiaga “credible in light of the entirety of the record and observations of his

tone, demeanor and straightforward answers.” See United States v. Lobo

, No. 15

‐ cr

‐ 174

### 4 (LGS), 2017 WL 2838187, at *2 (S.D.N.Y. June 30, 2017). 1

Lobo submits that the district court erred in relying on Rivera Maradiaga’s

testimony because it “lacked sufficient indicia of reliability.” Appellant’s Br. at 40. We

are not persuaded. “Mindful of the district court’s significant advantage in seeing the

witnesses testify, we review its credibility finding only for clear error.” United States v.

Messina

, 806 F.3d 55, 64 (2d Cir. 2015). “The law affords a factfinder considerable

discretion in resolving evidentiary inconsistencies. Inconsistency may prompt a

factfinder to reject both versions of an account, or to accept one over the other based on a

finding that one witness’s recollection is more reliable or credible than the other.” Id.

The district court acted well within its discretion in crediting Rivera Maradiaga’s

testimony. Rivera Maradiaga’s testimony is consistent with Lobo’s admission that he

agreed to assist Rivera Maradiaga in transporting hundreds of kilograms of cocaine

through Honduras. See Lobo

, 2017 WL 2838187, at *2 (“Defendant ‘does not object’ to the

Government’s proposed findings of fact (based on Rivera [Maradiaga]’s testimony)

regarding Lobo’s involvement in a 400

‐ kilogram shipment in 2012 and a 1,000

‐ kilogram

shipment in 2013.”). Rivera Maradiaga’s testimony was also corroborated by recordings

1 The district court also found that Rivera Maradiaga’s misstatement regarding the date of the

founding of a Cachiros

‐ affiliated front company to receive Honduran government contracts in

exchange for kickbacks did not meaningfully impugn Rivera Maradiaga’s credibility and was

ultimately immaterial to the core issues underlying the sentencing enhancements at issue. Id.

### 5 of Lobo arranging future deliveries with Rivera Maradiaga and other confidential

informants, electronic communications between Lobo and Rivera Maradiaga, and

recorded telephone calls between Lobo and Rivera Maradiaga while Rivera Maradiaga

was incarcerated. In these conversations, Lobo admits to using his security team to help

Rivera Maradiaga escort trucks carrying drugs through Honduras. Lobo also brags

about his ability to use his connections to provide military and logistical support for

future transports. These admissions confirm Rivera Maradiaga’s testimony that Lobo

played an active role in the Cachiros’s drug trafficking operation.

II. Unwarranted Sentencing Disparities

Lobo argues that the district court erred in relying on data from the Sentencing

Commission to address the need to avoid unwarranted sentencing disparities without

affording him “an opportunity to respond.” Appellant’s Br. at 38–39. He also

contends that the district court erroneously concluded that he was not similarly situated

to his codefendants when it compared his “personal background” with that of his

codefendants rather than comparing the various parties’ criminal conduct. Id. at 39.

Lobo, however, did not object at sentencing after the district court stated that it

“made inquiries with the United States Sentencing Commission about defendants with a

similar guideline profile to the one that you have from around the country.” J. App.

### 6 217. 2 Because Lobo had the opportunity to but did not challenge the district court’s

reliance on Sentencing Commission data, our review is for plain error. See United States

v. Dupes

, 513 F.3d 338, 343 (2d Cir. 2008). “For an error to be plain, it must, at a

minimum, be clear under current law,” United States v. Weintraub

, 273 F.3d 139, 152 (2d

Cir. 2001) (internal quotation marks omitted), and “[w]e typically will not find such error

where the operative legal question is unsettled, including where there is no binding

precedent from the Supreme Court or this Court,” United States v. Whab

, 355 F.3d 155, 158

(2d Cir. 2004) (internal quotation marks omitted). Even if it were error for the district

judge independently to ask the Sentencing Commission for information on the sentences

received by defendants matching Lobo’s Guidelines range, the error was not plain.

Lobo offers no authority for the proposition that a district court is required to give

advanced notice to a defendant if it decides to rely on publicly available sentencing data

to avoid unwarranted sentencing disparities.

The district court also did not err in concluding that Lobo is not similarly situated

to his codefendants. Section 3553(a)(6) requires district courts to consider “the need to

avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct .” 18 U.S.C. § 3553(a)(6) (emphasis added).

2 After pronouncing Lobo’s sentence, the district court asked: “Does either counsel know of any

legal reason why this sentence should not be imposed as stated,” to which Lobo’s counsel

responded, “No, your Honor.” J. App. 219.

### 7 Under our precedent, the district court was not required to consider disparities between

Lobo’s sentence and the sentences of Lobo’s codefendants. United States v. Frias

, 521

F.3d 229, 236 (2d Cir. 2008). To the extent the conduct of Lobo’s codefendants is relevant,

it is clear that the district court’s finding that Lobo was not similarly situated to his

codefendants was not based on Lobo’s “personal background.” Rather, the district

court compared Lobo’s offense conduct with that of his codefendants and concluded that

Lobo’s offense conduct warranted a harsher sentence. Unlike his codefendants, Lobo

was the son of a president, and he used his position to forge corrupt connections between

drug traffickers and the upper echelons of the Honduran government.

III. General Deterrence

Finally, Lobo argues that the district court placed too much emphasis on the need

to promote general deterrence rather than providing him “a just, and individualized,

sentence.” Appellant’s Br. at 40. It is axiomatic that “[t]he 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)

(internal quotation marks omitted). Moreover, the weight that the district court places

on a particular factor need not be the weight that this Court would give the factor so long

as “the factor, as explained by the district court, can bear the weight assigned it under the

totality of circumstances in the case.” Cavera

, 550 F.3d at 191. Considering the breadth

### 8 of Lobo’s corruption and the extent of his criminal activity, the district court acted well

within its discretion when it imposed a sentence reflecting the need to deter government

officials from using their positions of power to facilitate drug trafficking.

We have considered Lobo’s remaining arguments and find them to be without

merit. We AFFIRM the judgment of the district court for the reasons stated herein and

in the accompanying opinion.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court