### 1 15-1842 United States v. Mumuni



### UNITED STATES COURT OF APPEALS
**FOR THE SECOND CIRCUIT**



# SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER**

**FILED ON OR AFTER J**  **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF** 
**A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  = **S L**  **OCAL R**  **ULE 32.1.1.**  **W HEN CITING A SUMMARY** 

**ORDER IN**  **A DOCUMENT**  **FILED WITH**  **THIS COURT**  **, A**  **PARTY MUST**  **CITE EITHER**  **THE F**  **EDERAL A**  **PPENDIX**

**OR AN**  **ELECTRONIC DATABASE**  **( WITH**  **THE NOTATION**  A **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 1 

### the Second Circuit, held at the Thurgood Marshall United States 2 

### Courthouse, 40 Foley Square, in the City of New York, on the 3 

### 24 **th** 

### day of June, two thousand sixteen. 4
5 

### PRESENT: DENNIS JACOBS, 6 

### GUIDO CALABRESI, 7 

### REENA RAGGI, 8 

### Circuit Judges. 9
10


### - - - - - - - - - - - - - - - - - - - -X 11 

### UNITED STATES OF AMERICA, 12 

### Appellee, 13
14 

### -v.- 15-1842 15
16 

### JIBRILLA MUMUNI, 17 

### Defendant-Appellant. 18
19


### - - - - - - - - - - - - - - - - - - - -X 20
21


### FOR APPELLANT: MARK S. DeMARCO, Bronx, NY. 22
23


### FOR APPELLEE: BRENDAN F. QUIGLEY (Rahul Mukhi, 24 

### Anna M. Skotko, on the brief), 25 

### Assistant United States Attorney, 26 

### for Preet Bharara, United States 27

### 2 Attorney for the Southern District 1 

### of New York, New York, NY. 2
3 

### Appeal from a judgment of the United States District Court 4 

### for the Southern District of New York (McMahon, J.). 5
6 

### UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 7


### DECREED that the judgment of the district court be **AFFIRMED**

. 8
9 

### Jibrilla Mumuni appeals from the judgment of the United 10 

### States District Court for the Southern District of New York 11 

### (McMahon, J.) convicting him of conspiracy to distribute and 12 

### possess with intent to distribute a kilogram or more of heroin. 13 

### Mumuni was sentenced principally to 71 months’ imprisonment. 14 

### Mumuni challenges: (i) the jury instructions, (ii) the 15 

### sufficiency of the evidence supporting his conviction, and 16 

### (iii) the reasonableness of his sentence. We assume the 17 

### parties’ familiarity with the underlying facts, the procedural 18 

### history, and the issues presented for review. 19



### 1. A defendant seeking vacatur based on an erroneous jury 20 

### instruction must demonstrate both error and prejudice. United 21 

### States v. Quinones, 511 F.3d 289, 313 (2d Cir. 2007). We review 22 

### de novo challenges to jury instructions and we will reverse 23 

### “only where the charge, viewed as a whole, either failed to 24 

### inform the jury adequately of the law or misled the jury about 25 

### the correct legal rule.” Id. at 314 (internal citation and 26 

### quotation marks omitted). 27



### In United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), 28 

### and United States v. Brutus, 505 F.3d 80 (2d Cir. 2007), we held 29 

### that a district court cannot instruct a jury that a defendant’s 30 

### interest in the outcome of the case creates a motive to testify 31 

### falsely. Brutus, 505 F.3d at 87; Gaines, 457 F.3d at 247. We 32 

### further held that a district court could, however, charge jurors 33 

### that a testifying criminal defendant does not assume any burden 34 

### of proof and they should evaluate the testimony of a testifying 35 

### defendant just as they would any interested witness. Brutus, 36 

### 505 F.3d at 88 n.7; Gaines, 457 F.3d at 249 n.9. 37



### Mumuni asserts that the district court erroneously charged 38 

### the jury to evaluate his testimony like that of any other witness 39

### 3 who had an interest in the outcome of the case. The district 1 

### court’s charge closely adhered to the charge we explicitly 2 

### approved in Gaines and Brutus. It informed the jurors that they 3 

### should treat Mumuni’s testimony just as they would that of any 4 

### interested witness, and that Mumuni took on no burden of proof 5 

### by testifying. Critically, the district court did not instruct 6 

### the jury that Mumuni, as an interested witness, had a motive 7 

### to testify falsely. Accordingly, the challenged jury 8 

### instruction was not erroneous. 9



### 2. A defendant challenging the sufficiency of the 10 

### evidence underlying his conviction at trial “bears a heavy 11 

### burden” because our standard of review is “exceedingly 12 

### deferential”: we “must view the evidence in the light most 13 

### favorable to the government, crediting every inference that 14 

### could have been drawn in the government’s favor,” and will 15 

### uphold the judgment if “ any rational trier of fact could have 16 

### found the essential elements of the crime beyond a reasonable 17 

### doubt.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) 18 

### (internal citations and quotation marks omitted). 19



### The evidence presented at trial supports Mumuni’s 20 

### conviction of conspiracy to distribute over a kilogram of 21 

### heroin. An accomplice testified that Mumuni sold him heroin 22 

### on two occasions, each of which was recorded and photographed 23 

### by law enforcement agents, and Mumuni had extensive contacts 24 

### with others involved in the drug trafficking conspiracy. We 25 

### will not disturb the jury’s finding on grounds that the 26 

### cooperator was not credible, United States v. Glenn, 312 F.3d 27 

### 58, 64 (2d Cir. 2002), or that Mumuni and his co-defendant were 28 

### acquitted on other counts, United States v. Acosta, 17 F.3d 538, 29 

### 546 (2d Cir. 1994). 30



### 3. We review a sentence for procedural reasonableness 31 

### under a “deferential abuse-of-discretion standard.” Gall v. 32 

### United States, 552 U.S. 38, 41 (2007) . That means a district 33 

### court’s application of the Sentencing Guidelines is reviewed 34 

### de novo and its factual findings are reviewed for clear error. 35 

### United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). A 36 

### sentence is procedurally unreasonable if the district court 37 

### “fails to calculate (or improperly calculates) the Sentencing 38 

### Guidelines range, treats the Sentencing Guidelines as 39

### 4 mandatory, fails to consider the § 3553(a) factors, selects a 1 

### sentence based on clearly erroneous facts, or fails adequately 2 

### to explain the chosen sentence.” United States v. Aldeen, 792 3 

### F.3d 247, 251 (2d Cir. 2015) (qu oting United States v. Chu, 714 4 

### F.3d 742, 746 (2d Cir. 2013)). 5



### Mumuni fails to demonstrate any procedural error. In 6 

### calculating Mumumi’s sentencing guidelines, the district court 7 

### applied a two-point enhancement for obstruction of justice 8 

### because it determined that Mumuni willfully had perjured 9 

### himself at trial with respect to a material matter. This 10 

### finding, which is not clearly erroneous, is a sufficient basis 11 

### for applying the obstruction of justice enhancement. United 12 

### States v. Salim, 549 F.3d 67, 73 (2d Cir. 2008). 13



### Accordingly, and finding no merit in Mumuni’s other 14 

### arguments, we hereby **AFFIRM** the judgment of the district court. 15



### FOR THE COURT: 16 

### CATHERINE O’HAGAN WOLFE, CLERK 17