05 -6 25 4- cr

USA v. P aredes-Silva 1 UNITED STA TES COU RT OF AP PEALS 2 FO R T HE SE CO ND CI RC UI T 3 4 SUMMARY ORD ER 5 RU L I NG S B Y S UMM AR Y OR DE R DO N OT HA VE P RE CE DE NT I AL E F F E CT . C I T AT I ON T O A 6 S UM M ARY ORD ER FI LED ON OR A FT ER J ANU ARY 1 , 2 0 0 7 , I S P ERM I TTED AND I S GO VERN ED 7 B Y T H IS C O U R T ’S L O C A L R U L E 3 2 .1 .1 A N D F E D E R A L R U L E O F A P P E L L A T E P R O C E D U R E 3 2 .1 . 8 W HEN CI TI NG A S UM M ARY ORD ER I N A DO CUM ENT FI LED W I TH TH I S COU RT, A P ARTY 9 M US T C I T E E I T HE R T HE F E DE RA L A P P E ND I X OR A N E L E CT RO NI C DA T AB AS E ( W I T H T HE 10 N O TA TI O N “ SUM M A R Y O R D ER ” ) . A PAR TY CI TI N G A SUM M A R Y O R D ER M U ST S ER V E A CO PY 11 O F IT O N A N Y P A R T Y N O T R E P R E S E N T E D B Y C O U N S E L . 12 13 14 At a stated Ter m of the United Stat es Court of Appeals for the Second Cir cuit, held a t the 15 Daniel Patri ck Moynihan United St ates Courthouse , 500 Pearl Stre et, in the Cit y of New York, 16 on the 19 day of August, two thousand and ten. th 17 18 PRESENT : JOHN M. WALKER, JR ., 19 BARRING TON D. PA RKER, 20 Ci rcu it J ud ges , 21 P. KEVIN CA STEL, 22 District Judge

. * 23

_____________________________________________________ 24 25 UNITED STA TES OF AMERICA, 26 27 Ap pe lle e , 28 29 -v30 Nos. 05-6254-cr(L) 31 06-0544-cr(CON) 32 06-1035-cr(CON) 33 34 AMADO RUDY FELIZ-RAMIREZ, ALBERT O SANTAN A, 35 CARLO S RAMOS-VEN EZUELA, JORGE OMAR GARCIA-MAR TINEZ, 36

___________________________

* Th e H on ora

ble P. Ke vin

Ca ste l, o f t

he Un ite d S tat es D ist

ric t C ourt f

or t he So uth ern Districtof New York, sitting by designat ion.2

J UAN R AMOS -B REACH , J ORGE H ERNANDEZ , C ARLOS B REACH -V EGA , 1 J ESUS B ACA -A COS TA , A DALBER TO O RTIZ , C ESAR S ANTANA , 2 M ARTIN A LDEZ -S OLIS , F RANCI SCO J AVIER G ARC IA -S ERRATO AND 3 R ICHA RD LAURENCE B OETA , 4 Defendants , 5 6 D ANIL LO P AREDES -S IL VA , ALSO KNO WN AS D ADAO , 7 P OLMAN T AVARES , G USTAVO R AMOS , 8 9 Defendants-Appe llants

. 10 11

________________________________________________ 12 13 For Defendant-Appellant Parede s-Silva: David Wikstrom, New York, NY. 14 15 For Def

endant- Appellan

t Tavare s: Dayna F erebee, New York, NY. 16 17 For Def

endant- Appellan

t Ramos: Dawn M. Cardi, New York, NY. 18 19 For Appellee: Lauren Goldberg , Assistant United States Attorney 20 (Jonathan S. Kolodner, Assistant United States 21 Attorney, on the brief ) for Michael J. Garcia, United 22 States Attorney for the Southern District of New 23 York. 24 25 Appeal from judgments of the United States District Court for the Southern District of New York 26 (Marrero, J .). 27 28 UPON DU

E CONSIDERA TION, it is hereby ORDE RED, ADJU DGED, AN

D DECREED 29 that the judgments of the district court are AF FIRMED. 30 31 Defendants-App ellants e ach plea ded guilty t

o partic ipation in a

common conspiracy to 32 distribute cocaine, and were sentenced in separate proceedings in the United States District Court 33 for the Southern District of New York (Marrer o, J .). We assume the parties’ familiarity with the 34 facts of these cases, their procedur al histories, and the issues on appeal. 35 We review a district court’s sentencing decisions for both substantive and procedural 36 reasonableness. See United States v. Rattoball i , 452 F.3d 127, 131-32 (2d Cir. 2006). 373

A. Polman Tavares 1 Tavares argues that his 120-month sentence was unreasonable because the district cour t 2 failed to recognize its authority to impose a sentence below the statutory minimum, based on 3 Tavare s’s eligibility for “sa fety valve” r elief under 18 U. S.C. § 3553(f). The P robation Office , in 4 its presentence report (“PSR”), determined that Tava res’s total offense level under the 5 Sentencing Guidelines was 33, carry ing with it a range of 135 to 168 months’ imprisonment. 6 This offense level included a two-point downward adjustment based on the Proba tion Office’s 7 finding that Tavares had met the safety valve criteria set forth in U.S.S.G. § 5C1.2. The district 8 court ad

opted the facts a s found in t

he PSR, and

accept ed the ca lculation of Tava res’s of fense 9 level and Guidelines range. The court also found that Tavares’s releva nt conduct encompassed 10 more tha

n 150 kilog

rams of c ocaine, based in p art on ad missions Ta

vares ma de in his sa

fety 11 valve proffer. 12 The court concluded that a below-Guidelines sentenc e of 120 months’ imprisonment was 13 warranted, in light of the factors set for th in 18 U.S.C. § 3553(a) and to avoid disparities between 14 Tavares’s sentence and those of similarly situated co-defendants. Alth ough t he dis trict judge 15 never referred to a manda tory minimum in sentencing Tava res, the 120-month sentence imposed 16 coincides with the minimum applied to offenses involving five kilograms or more of c ocaine. 17 See 21 U.S.C. §§ 841(b)(1)(A)(ii), 960(b)(1)(B)

. 18 We have held that once a district court determines that a def endant has met the criteria for 19 safety va

lve eligibility under § 3553(f), “the court is required to disrega rd any manda

tory 20 minimum in imposing sentence.” United Sta tes v. Je ffers , 329 F.3d 94, 100 (2d Cir. 2003). 21 Neither

the statut e nor our case la w, howev er, req

uires a d istrict c ourt in suc

h circum stancesto 224

impose a sentence below the mandatory minimum. I t is clear from the record that Judge Marre ro 1 took into account Tavares’s safety valve eligibility in deter

mining the Guidelines range. Cf. 2 Jeffers , 329 F.3d at 101 (noting that “if the District Court finds that [the defendant] has satisfied 3 the safe

ty v alve cr

iteria, h e would or

dinarily be entitled to a two- level downward a djustment in 4 his offense level”). I n choosing to apply a

sentence below that range, ther e was no indication that 5 the court believed it was bound by the statutory minimum, as Tavares suggests. As a result, the 6 sole ground on which Tavares contests his sentence fails. 7 B. Danillo Paredes-Silva 8 Paredes-Silva also received a sentence of 120 months’ imprisonment for his role in the 9 conspiracy . Like Tavares, his total offe nse level was calculated to be 33, resulting in a 10 Guideline s range of 135 to 16 8 months’ im prisonme nt. Pared es-Silva argue s on appe al, as he

did 11 before the district court, that he should have been g ranted a two-level downward adjustment for 12 minor role. See U.S.S.G. § 3 B1.2(b) . Had he r eceived that re duction, h

e contends he then

would 13 have become eligible for a fur ther four-level reduction, see U.S.S.G. § 2D1.1(a) (3), and his 14 applicable Guidelines range would have been 70 to 87 months. 15 An adjustment for mitigating role under the Guidelines is available only when the 16 defendant is “substantially le ss culpable than the average pa rticipant” in a criminal activity

. 17 U.S.S.G. § 3B1.2 cmt. n.3(A). A district court’s determination as to whether a de fendant 18 qualifies for the adjustment is “fact-sensitive.” Uni ted Sta tes v. Yu , 285 F.3d 192, 200 (2d Cir. 19 2002). Here, the district court rejected Paredes-Silva’s argument that he merited the adjustment 20 because his role in the conspiracy was that of a mere “delivery boy” or “gopher.” The court 21 pointed out that Paredes-Silva admitted that he knew the conspiracy involved significant 225

quantitie s of coca

ine, and t hat along with other

co-conspiratorshe had pr eviously particip ated in 1 the distribution of cocaine and heroin. Prior to his arrest, Paredes-Silva had been caug ht on tape 2 discussing the drug transaction and notify ing co-conspirators of the shipment’s arrival. 3 Moreove

r, we ha ve in the p ast rejected the proposition that “one who is sim ply a courie r is 4 automatically entitled to a § 3B 1.2 minor role adjustment based on that status,” emphasizing that 5 “[c]ouriers are indispensable to the smuggling a nd delivery of dr

ugs and their proceeds.” United 6 States v. Garcia , 920 F.2d 153, 155 (2d Cir. 1990). 7 Because Paredes-Silva failed to demonstra te that he was substantially less culpa ble than 8 the aver

age c o-conspi

rator, w e conclude that the district court did not err in declining to gr

ant a 9 minor role adjustment. 10 C. Gustavo Ramos 11 Ramos arg ues that th

e district court e

rroneou sly

applied a three- level en

hanceme nt to his 12 base offense level for his role as a mana ger or supervisor in the conspiracy

. See U.S.S.G. § 13 3B1.1(b). Ramos received a sentence of 230 months’ imprisonment, which fell below the 14 Guidelines range of 262 to 327 months that the district court found applicable ba sed on a total 15 offense level of 38. 16 The district court found, based largely on Ramos’s own admissions, that for over a year 17 prior to his arrest Ramos had been responsible for org anizing drug deliveries, arrang ing for the 18 collection of proceeds from drug tra nsactions, and overseeing other aspects of the conspiracy ’s 19 drug activities. According to the PSR, Ramos traveled to New York with the primary purpose of 20 supervis ing the c ocaine d elivery that led to

his arre st, and ha

d previou sly

sent a co -conspir

ator to 21 New York to reassure the local distributors. Wiretap evidence revealed Ramos giving directions 226

to the distributors regarding the pick-up of the dr ugs. There was also evidence tha t Ramos was 1 responsible for collecting money related to the transaction. Without dispu ting any of this 2 evidence, Ramos argues that there w as an insufficient factual basis to support the district court’s 3 application of the aggrava ting role enhancement. 4 The Guidelines distinguish between the role of an “org anizer or leader” of a criminal 5 activity, for which a four-level enhancement is warra nted, and that of a “manager or supervisor,” 6 which warrants the three-level enha ncement applied here. See U.S.S.G. § 3B1.1 & cmt. n.4. The 7 district court rejected the government’s c ontention that Ramos qualified for the four-level 8 leadership enhancement under § 3B1.1( a), based on the fact that Ramos took orders from higher9 ups in the drug organization and did not himself own the drugs. Th e c ou rt ’s de ci si on to ap pl y a 10 three-level enhancement, based on its finding that Ramos nonetheless acted as a manager or 11 supervisor, is consistent with the Guidelines as well as with our own precedents. See, e.g. , 12 United States v. Blount , 291 F.3d 201, 217 (2d Cir. 2002) (affirming application of a ma nager 13 enhancement to defendant in a narcotics c onspiracy who w as “in charge of distributing bundles 14 of coca

ine pack ages to the stree t sellersand collecting th

e proceeds of the

ir sales” ); United States 15 v. Farah , 991 F.2d 1065, 1067 , 1068-69(2d Cir. 19 93) (applying a three-level enhanc ement to 16 defend ant wh o “serv ed as a t ruste d ‘righ t hand man’ f or . . . the ad mitt ed head of the [dru g] 17 conspiracy ” and was responsible, inter alia , for “meeting foreign a nd domestic couriers, . . . 18 meeting

with the pr

incipal customer . . ., [and] co llecting proceeds”). We c onclude t hat in 19 calculating Ramos’s Guidelines range , the district court properly applied the § 3B1.1(b) 20
aggr

avating role enh anceme

nt. 21 Ramos also contendsthat he r

eceived ineffective as sistance of counse

l, in violat

ion of his 221 Sixth Amendm ent right s. We decline to considerthis cla im “[i] n light of our basel ine aversi on 2 to r eso lvi ng ine ff

ect ive ne ss c lai m s o n d ire ct r ev iew .” United States v. Morgan , 386 F.3d 376, 3 383 (2d Cir. 2004) (i nternal quot ation marks omitted). Ramos rem ains free to pur sue such a 4 claim in a petiti on for a writ of habeas corpus under 28 U.S.C. § 2255. Se e id .; seeals o Ma ssa ro 5 v. Un ite d S

tates , 5 38 U. S. 50 0, 50 4 (2 00 3) ( “[ I] n m os t ca ses a m oti on bro ug ht u

nd er § 22 55 is 6 pre fe rab le t o d ire ct a pp eal fo r de cid ing cla im s o f i ne ff ect ive ass ist an ce. ”). 7 W e h av e co ns ide red de fe nd an ts- ap pe llants ’ re m ain ing arg um en ts, an d f ind that th eylac k 8 merit. Accordingly, the di strictcourt’s j udgments are AFFIRMED. 9 10 FOR THE COURT 11 Cathe rin e O ’H ag anW of e, Cl erk 12