1 14-4158-cr(L), 15-487-cr(Con), 15-643-cr(Con) United States v. Fernandez, Reyes & Darge UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 2 nd day of May, two thousand sixteen.
PRESENT: ROBE RT D. SACK, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. Nos. 14-4158-cr(L) 15-487-cr(Con) 15-643-cr(Con) JOE FERNANDEZ, ALBERTO REYES, AKA Zac, PATRICK H. DARGE, Defendants-Appellants , MANUEL ALADINO SUERO, JOSE GERMAN RODRIGUEZ-MORA, LUIS RIVERA, Defendants.

---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANTS: ROBERT WILLIAM RAY, Fox Rothschild LLP, New York, New York, for Joe Fernandez.2 B. ALAN SEIDLER, ESQ., New York, New York, for Alberto Reyes. MATTHEW J. GALLUZZO, Galluzzo & Johnson LLP, New York, New York, for Patrick Darge.
APPEARING FOR APPELLEE: JOHN CR ONAN, Assistant United States Attorney (Russell Capone , Margaret Garnett, Assistant United States Attorneys, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. Appeal from judgments of the United Stat es District Court for the Southern District of New York (Alvin K. Hellerstein, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgmen ts entered on October 22, 20 14 (as to Joe Fernandez), February 13, 2015 (as to Alberto Reyes), a nd March 3, 2015 (as to Patrick Darge), are
AFFIRMED. Defendants Joe Fernandez, Alberto Re yes, and Patrick Darge appeal from convictions arising from their roles in th e murders of Arturo Cuellar and Ildefonso Vivero Flores. Fernandez—who stands convict ed after a jury trial of conspiracy to commit murder-for-hire, see 18 U. S.C. § 1958, and using a firearm to commit murder in the course of that conspiracy, see id. § 924(j)(1)–(2)—argues on appeal that (1) the evidence was insuffici ent to support his conspiracy conv iction, and (2) the district court erred in denying him a new trial based on (a ) the government’s alleged Brady violation and (b) newly discovered evidence. Reye s—who pleaded guilty to two counts of3 murder in the course of a narcotics offense, see 21 U.S.C. § 848(e )(1)(A), and substantive and conspiratorial murder-for-hire, see 18 U.S.C. § 1958(a)—c ontends that his below-Guidelines sentence of 25 years’ imprisonment is unreasonable. Darge—who pleaded guilty to using a fir earm to commit murder in the course of a drug trafficking conspiracy, see 18 U.S.C. § 924(j)(1)–(2), two counts of murder wh ile engaging in a narcotics offense, see 21 U.S.C. § 8 48(e)(1)(A), and conspiracy to commit murder-for-hire, see 18 U.S.C. § 1958—simila rly contends that his below-Guidelines sentence of 30 years’ imprisonment is unreasona ble. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Fernandez

a. Sufficiency Challenge We review a sufficiency challenge de novo and must affirm the conviction if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United States v. Binday, 804 F.3d 558, 572 (2d Cir. 2015). In conducting such review, we are mindful that a conviction can be sustaine d on the basis of testimony from a single accomplice, so long as the testimony is not incredible on its face and is capable of establishing guilt beyond a reas onable doubt. See United Stat es v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999).4 Here, Fernandez’s confederate, Patrick Da rge, testified that in February 2000, Alberto Reyes, Jose Rodriguez-Mora, a nd Manuel Suero—all members of Jeffrey Minaya’s drug organization—soli cited Darge to murder Mina ya’s drug suppliers, Cuellar and Flores, in exchange for $180,000. Af ter Darge agreed, he recruited his cousin Fernandez to “watch [Darge ’s] back” while he was comm itting the murders, and Luis Rivera to serve as the getaway driver. Tria l Tr. 270. Darge testified that Fernandez agreed to participate after Da rge told Fernandez that he ha d been “hired to murder two guys,” that he needed Fernan dez to back him up, that Fern andez would have to bring his own gun, and that he would pay Fernandez $40,000. Id. at 276–77. Darge further
testified that he and Fernandez executed the planned murders in the lobby of an apartment building on February 22, 2000, but th at, after shooting the first victim in the head, Darge’s gun jammed, at which point he ra n out of the building while he heard other shots being fired. Fernandez returned to the getaway car several minutes later and, according to Darge, explained that he “had to make sure they were both dead.” Id. at 332. Cuellar and Flores were subsequently found shot dead in the lobby. Later that same day, Reyes paid Darge the agreed-upon $180,000, $40,000 of which Darge in turn paid to Fernandez. The jury reasonably co uld have concluded from this testimony that Fernandez knowingly joined an d participated in the char ged conspiracy, and had the specific intent to commit mu rder-for-hire. See United St ates v. Valle, 807 F.3d 508, 515–16 (2d Cir. 2015) (explaining that to su stain conspiracy conviction, government must prove knowing joinder and participation in scheme, and specific intent to commit5 underlying offense); United States v. Hardwick, 523 F. 3d 94, 99–100 (2d Cir. 2008) (stating that § 1958 requires ag reement to commit murder in exchange for another party’s actual or promised payment, and defendant’s intent for murder to be committed). Fernandez argues that Darge’s testimony wa s insufficient to sustain his conspiracy conviction because it was uncorro borated. This argument fails because any lack of corroboration “goes merely to the weight of th e evidence, not to its sufficiency.” United States v. Parker, 903 F.2d 91 , 97 (2d Cir. 1990) (explaining that “weight of the evidence is a matter for argument to the jury, not a ground for reversal”). In any event, the record did corroborate Darge’s testimony in severa l material respects: (1) both Reyes and Minaya testified that, in planning the murders, they understood that Darge and one of his cousins were going to kill Cuellar and Flores ; (2) Reyes testified that, upon entering the apartment building lobby with Cuellar and Fl ores, he saw Darge and another man whom he did not recognize; (3) Darge’s brother tes tified that, in 2011, Fe rnandez told him that he (Fernandez) participated in the murders with Darge, and discussed leaving the country to evade arrest for those crimes; and (4) Fernandez’s prison cellmate, Yubel Mendez-Mendez, testified that Fernandez told Mendez that he (Fernandez) was incarcerated “due to the fact that he had par ticipated with Patrick,” i.e., Darge, Trial Tr. 706. Insofar as Fernandez’s sufficiency challenge is based on Darge’s alleged lack of credibility, his testimony was not incredible on its face and, therefore, we must defer to the jury’s assessment of hi s credibility. See United States v. Parker, 903 F.2d at 97. Accordingly, Fernandez’s sufficiency challenge fails.6 b. Motion for a New Trial Fernandez argues that the district court e rred in denying his Fe d. R. Crim. P. 33 motion for a new trial based on (1) the govern ment’s failure to make disclosures required by Brady v. Maryland , 373 U.S. 83 (1963); 1 and (2) newly discovered evidence. We review the district court’s denial of such motions for abuse of discretion, see United States v. Brunshtein, 344 F. 3d 91, 101 (2d Cir. 2003), whic h we do not identify here. i. Alleged Brady Violation To establish a Brady violatio n, a defendant must show that (1) the evidence at issue is favorable to him b ecause it is either exculpat ory or impeaching, (2) the government suppressed that evidence, and (3) he was thereby prejudiced. See Strickler v. Greene, 527 U.S. 263, 281–82 (1999); accord United States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005). Here, Fernandez contends that the g overnment violated Brady by failing to disclose notes of a proffer session in which Rivera denied involvement in the February 22, 2000 murders. Fernandez argues that he could have used this evidence to impeach Darge’s testimony that Rivera was the geta way driver. We are not persuaded. Review of the notes confirms the distri ct court’s observation that they do not reflect Rivera’s unequivocal denial of a ge taway driver role. Moreover, and in any event, Fernandez fails to show how the notes could have be en “useful for impeachment,” in the sense of “having the pote ntial to alter the jury’s asse ssment of the credibility of a

1 The district court also denied Fernandez’s subsequent motion for r econsideration of its conclusion that the allege d Brady violation did not warrant a new trial.7 significant prosecution witness.” United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998). Rivera was not called as a prosecuti on witness, and Fernandez does not contend that he would have called him as a defense witness if he ha d been aware of the proffer notes, much less that Rivera would have been willing to testify. See United States v. Fernandez, No. 10 Cr. 863(AKH), 2014 WL 7180225, at *3 (S.D.N.Y. Nov. 25, 2014) (observing that Rivera’s Fi fth Amendment rights “presumabl y . . . made him unavailable to be a witness for either party”); cf. Leka v. Portuondo, 257 F.3d 89, 106–07 (2d Cir. 2001) (concluding that failure to disclose nontestifying eyewitness’s account of crime at odds with those of testifying witnesses vi olated Brady where “testimony at trial would have had seismic impact, both because of what he would have said and because his testimony would have furnishe d the defense with promisi ng lines of inquiry for” cross-examination of other witnesses). Unite d States v. Jackson, 345 F.3d 59 (2d Cir. 2003), on which Fernandez relies, is inapposite. There, this court made clear that “Brady and its progeny may require disclosure of excu lpatory and/or impeachment materials whether those materials concern a te stifying witness or a hearsay declarant.” Id. at 71 (emphasis added); see also United States v. Orena, 145 F.3d 551, 553 (2d Cir. 1998) (considering Brady claim that undisclo sed material could have been used to impeach out-of-court co-conspirator stat ements admitted unde r Fed. R. Evid. 801(d)(2)(E)). Fernandez does not contend that the proffer notes could have been used to impeach any of Rivera’s out-of-c ourt statements admitted at trial. Nor are we persuaded that the proffer notes could have usefully impeached8 Darge’s testimony. Rivera’s inability to reme mber, in 2012, whether he participated in the February 2000 murders was not necessa rily probative of Darge’s credibility in testifying that Rivera was th e getaway driver. Fernandez nevertheless submits that he could have asked Darge if he (Darge) “had heard or was awar e that Rivera denied being the driver of the getaway ca r,” Appellant Br. 28–29, but, even if Rivera’s proffer statements could be so constr ued, he provides no basis to think that Darge had knowledge of those statements, necessarily precluding Fernandez from satisfying the prejudice prong of a Brady claim. In these circumstances, we cannot conclu de that the district court abused its discretion in denying Fernandez’ s Brady-based Rule 33 motion. ii. Newly Discovered Evidence Fernandez also argues that newly discove red evidence in the form of his own October 13, 2011 Verizon Wireless tele phone records warranted a new trial. 2 He submits that these records cast doubt on tria l evidence indicating that, at an October 13, 2011 meeting set up by Christian Guzman at Fernandez’s reques t, Fernandez told Darge’s brother that he (Fernandez) comm itted the February 22, 2000 murders with Darge, and discussed leaving the country to evade arrest for those crimes. We do not

2 In moving for this relief, Fernandez also requested a subpoena for all of his Verizon Wireless records and all of Christian Guzman’s AT&T phone records, which the district court denied. Fernandez subsequently obtain ed a log of Guzman’s AT&T text messages from October 13, 2011, and, agai n, moved for an order requiring release of the content of text messages from that day. Because that mo tion was filed during th e pendency of this appeal, the district court appear s to have deferred considerati on of it. See Fed. R. Crim. P. 37(a)(1).9 here decide what, if any, doubt the Verizon records cast on the prosecution evidence because we conclude, in any event, that th e records cannot be de emed newly discovered evidence for purposes of a Ru le 33 motion as, with “reasona ble diligence,” they “could have been discovered before or during the tr ial.” United States v. Parse, 789 F.3d 83, 109 (2d Cir. 2015). The Veri zon records that purportedly contradict AT&T records admitted at trial are Fernandez’s own cellpho ne records from October 2011 and, thus, were presumably available to hi m in the exercise of reasonable diligence at his 2013 trial. As for the AT&T text message log, if Fern andez sent Guzman a text message on October 13, 2011, rather than calli ng him, that was known to Fernandez well before trial commenced, providing him ample opportunity to obtain thes e records beforehand. See United States v. Capece, 287 F.2d 537, 5 38 (2d Cir. 1961) (rejecting new trial motion based on purportedly impeaching Western Uni on records that did not show transfers testified to by cooperating witness because “[ i]f [defendant] did not receive the money order, she knew this at the tim e of trial” and, therefore, had “ample time to obtain” Western Union records during trial). Thus, the district court did not abuse its discretion in denying Fernandez a new trial based on newly discovered evidence.
2. Reyes’s and Darge’s Sentencing Challenges We review Reyes’s and Darge’s senten ces for “reasonableness,” which is “a particularly deferential form of abuse-of-dis cretion review.” United States v. Cavera,10 550 F.3d 180, 187–88 & n.5 (2d Cir. 2008) (en banc); accord United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012).

a. Reyes Reyes argues that his 25-year prison senten ce is disproportionate to the sentences imposed on other participants in the same murder-for-hire conspi racy. See 18 U.S.C. § 3553(a)(6). As an initial matter, although a district court may c onsider case-specific disparities, see United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), § 3553(a)(6) does not require such consideration, see United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008); accord United States v. Ghailani, 7 33 F.3d 29, 55 (2d Cir. 2013). Where, as here, a district court does consider disparitie s among confederates, “the weight to be given such disparities, like the wei ght to be given any § 3553(a ) factor, is a matter firmly committed to the discretion of th e sentencing judge and is bey ond our appellate review, as long as the sentence ultimately imposed is re asonable in light of all the circumstances presented.” United States v. Florez, 447 F. 3d 145, 158 (2d Cir. 2006) (internal quotation marks and brackets omitted); acco rd United States v. Messina, 806 F.3d 55, 66–67 (2d Cir. 2015). In sentencing Reyes, the district court ack nowledged that Minaya, the leader of the murder-for-hire conspiracy, was se ntenced to 15 years’ imprisonm ent, but explained that it would not use that sentence “as a precedent for everyone else” based on further consideration of the facts of this case. Reyes App’x 79. We will not disturb this determination regarding the appropriate weight to give to the disparity between Minaya’s11 and Reyes’s sentences because we cannot c onclude that Reyes’s 25-year term of imprisonment sentence falls outside “the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189; see United States v. Florez, 447 F.3d at 158. The sentence reflected (1) a significant downward departure, pursuant to 18 U.S. C. § 3553(e), from the statutory minimum term of life imprisonment th at Reyes faced for his § 1958 convictions, see United States v. Perez–Frias, 636 F.3d 39, 43 (2d Cir. 2011) (observing that it is “difficult to find that a below- Guidelines sentence is unreason able”); and (2) the district judge’s careful consideration of numerous fact ors particular to Reyes, including that he led the two murder victims to the shooters. 3 See 18 U.S.C. § 3553(a). In these circumstances, we cannot conclude that Reyes’s 25-year sentence so shocks the conscience as to be substantively unreason able. See United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Accordingly, we identify no merit in Reyes’s sentencing challenge. b. Darge i. Procedural Reasonableness Darge submits that his 30-year prison sent ence is infected with procedural error because the district court (1) erroneously re ferred to the Guidelines as mandatory, and (2) failed to specify whether it was relying on 18 U.S.C. § 3553(e) or U.S.S.G. § 5K1.1 in

3 Insofar as Reyes faults the district cour t for subsequently sentencing Manuel Suero to 28 years’ imprisonment despite the fact that he did not cooperate with the government, the record belies Reyes’s conten tion that Suero was just as cu lpable as Reyes. Although Suero planned the murders with Reyes, it was Reyes who led the victims to the shooters and, thus, bore equal or “almos t equal” responsibility as the shooters for their deaths. Reyes App’x 77.12 determining whether, and to what extent, to depart from the statutory minimum. Because Darge did not raise these procedural obj ections in the district court, we review them for plain error. See United States v. Verkhoglyad, 516 F. 3d 122, 128 (2d Cir. 2008); see also United States v. Marcus, 560 U.S. 25 8, 262 (2010) (stating that plain error requires showing of (1) error, (2) that is clear or obvious, (3 ) affecting substantial rights, and (4) calling into question fairness, inte grity, or public reputation of judicial proceedings). Darge’s first argument merits little disc ussion because, although the Guidelines are advisory, see United States v. Booker, 54 3 U.S. 220 (2005), Darge faced a statutory mandatory minimum of life imprisonment unde r 18 U.S.C. § 1958. In any event, the district court’s significant downward depart ure from this mandatory minimum, upon the government’s § 3553(e) motion, makes clea r that the court did not misapprehend its sentencing authority. Darge’s complaint about the district cour t’s failure to specify the basis for its departure is equally meritless. Although the decision to depart from a statutory mandatory minimum and the maximum extent of such a departure may, under § 3553(e), be “based only on substantial assistance to the government,” a district court may consider other factors in arriving at a final sentence. United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008); accord United States v. Williams, 551 F.3d 182, 186 (2d Cir. 2009). Here, the district court granted a § 3553(e) de parture as to Darge’s § 1958 conviction based on his substantial assistance to the govern ment, and a § 5K1.1 departure as to his13 convictions for crimes not carrying a mandatory minimum. Then, in arriving at a final sentence, the district judge carefully consider ed other relevant factors including, under 18 U.S.C. § 3553(a), the seriousness of Darge’s offe nse and his personal characteristics. See United States v. Williams, 551 F.3d at 186–87 (explaining that, after deciding to depart pursuant to § 3553(e) and determining maximum extent of departure, court may consider § 3553(a) factors in arriving at final sentence). Insofar as Darge conten ds that the district court considered improper factors in determin ing the maximum extent of departure, he fails to demonstrate that any such error affect ed his substantial rights or calls into question the fairness, integrity or public re putation of judicial proceedings. See United States v. Marcus, 560 U.S. at 262. Thus, we identify no plain procedural error in the district court’s departure determination. ii. Substantive Reasonableness Darge’s substantive challenge to his sent ence also fails because his 30-year prison term cannot be said to fall outside “the rang e of permissible decisions” available to the district court. United States v. Cavera, 550 F.3d at 189; see also United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008) (observing that “broad range” of sentences can be substantively reasonable). In urging otherwise, Darge faults the dist rict court for not acco rding more weight to his cooperation. We are not persuaded. Darge—who testified at Fernandez’s trial to joining the murder-for-h ire conspiracy as the primar y shooter, soliciting others to participate, and shooting one of the victims dead—faced a statutory minimum term of life14 imprisonment for his § 1958 convi ction. Nevertheless, based on his assistance to the government, the district court granted hi m a § 3553(e) departure and, after careful consideration of that assistan ce, the nature of his involvem ent in the conspiracy, and his professed rehabilitation, sentenced him to 30 year s. We cannot conclude that the district court abused its discretion in so weighing th e sentencing factors. See United States v. Fernandez, 443 F.3d 19, 32 (2 d Cir. 2006) (holding that appellate court generally will not second-guess weight district court assigns fa ctors possibly relevant to sentencing). Darge’s disproportionality argument relative to confederates is also meritless. As discussed with respect to Reyes’s sentence, where a district court considers disparities among confederates, “the weight to be given such disparities, like the weight to be given any § 3553(a) factor, is a matte r firmly committed to the discretion of the sentencing judge and is beyond our appellate review, as lo ng as the sentence u ltimately imposed is reasonable in light of all the circumstances pr esented.” United States v. Florez, 447 F.3d at 158 (internal quotation marks and brackets omitted). Because we cannot conclude that Darge’s 30-year sentence is unreasonable, hi s disproportionality argument necessarily fails. Moreover, and in any event, Darge cannot demonstrate that his confederates who received equal or lesser sentences were similarl y situated because Darg e (1) was one of the shooters in the murde r-for-hire scheme that took two lives , and (2) also pleaded guilty to the 1998 murder of Arturo Rizze tto in relation to an unrelate d drug trafficking crime. See United States v. Fernandez, 44 3 F.3d at 32 (rejecting dispar ity challenge where defendant failed to show that confederate was “similarly situated”).15 Thus, to the extent Darge’s challenge is substantive as well as procedural, it fails because the record does not pe rmit us to conclude that this is one of those “exceptional cases” where the district court’s below-Guidelin es sentence falls outside of the range of permissible decisions. United States v. Cavera, 550 F.3d at 189; see United States v. Perez–Frias, 636 F.3d at 43. Accordingly, we reject Da rge’s sentencing challenge.
3. Conclusion We have considered defendants’ remaini ng arguments and conclude that they are without merit. We therefore AFFIRM the judgments of the district court.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court