17-1891-cr United States v. Galan

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

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At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 1 st day of October, two thousand eighteen.

PRESENT: P IERRE N. L EVAL , S USAN L. C ARNEY , Circuit Judges
, K

ATHERINE P OLK F AILLA , District Judge

. *

_____________ _______________ _____________
U NITED S TATES OF A MERICA , Appellee
,
v. No. 17-1891-cr

A NGEL G ALAN , Defendant-Appellant

.

_____________ _______________ _____________ FOR APPELLEE: H IRAL D. M EHTA , Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief ), for Richard P. Donoghue, United States

* Judge Katherine Polk Failla, of the United States Dist rict Court for the Southern District of New York, sitting by designation.2 Attorney for the Eastern District of New York, Brooklyn, NY.

FOR APPELLANT: B OBBI C. S TERNHEIM , Esq., New York, NY.
Appeal from a judgment of the United Stat es District Court for the Eastern District of New York (Mauskopf, J. ).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on May 17, 2017, is
AFFIRMED

. Defendant-appellant Angel Galan appeals from the District Court’s judgment sentencing him principally to 84 months’ impris onment after a jury convicted him of a single count of being a felon in possession of a firear m and ammunition, in violation of 18 U.S.C. § 922(g)(1). Galan makes two arguments on appeal . He first challenges the District Court’s decision to apply a two-leve l enhancement for obstruction of justice based on statements
Galan made in an affidavit that he submi tted in connection with a pretrial suppression motion. Second, he argues that the sentence im posed by the District Court is substantively unreasonable. We assume the parties’ familiari ty with the underlying facts, procedural history, and arguments on appeal , to which we refer only as n ecessary to explain our decision to affirm the judgment entered by the District Court.

I.
The government’s criminal complaint in this case alleges that, on the night of June 8, 2014, two New York Police Department (“NYPD ”) officers in an unmarked car observed Galan standing on a street corner in Brooklyn holding a clear plastic cup containing a clear liquid. When Galan saw the police vehicle, he began walking away and threw the plastic cup to the ground. An officer got out of the car, identified hi mself as police, and approached Galan on foot. As the officer approached, the co mplaint alleges, Galan appeared to remove a black object from the waistband of his pants, crouch down, and place the object on the tire of a parked car. The officers recovered the obj ect, which turned out to be a loaded .403 caliber semi-automatic pistol. The officers then arrested Galan, handcuffed him, and searched him, discovering addi tional contraband. After reviewing Galan’s criminal history records, the officers discovered that he was a felon within the meaning of 18 U.S.C. § 922(g)(1).
The government filed the operative supers eding indictment in September 2015. The following month, Galan moved to suppress physical evidence recovered from his person during the search, including a cartridge matchi ng the pistol, as well as marijuana and cocaine. He requested a suppression hearing. The g overnment responded that no hearing was necessary because Galan had submitted no eviden ce that contradicted the allegations made in the criminal complaint. Galan then filed an affirmation in whic h he described, under penalty of perjury, his version of what transpir ed on the night of his arrest. His affirmation included the following statement, among others : “In the minutes prior to the police officer grabbing me, I had not removed anything from my belt or clothing and I had not placed any object on top of a vehicle’s tire.” App’x 21.
In light of the factual dispute, the District Court held a suppression hearing. At the hearing, three NYPD officers gave testimony a bout the circumstances of the stop that was consistent with the allegations c ontained in the criminal complaint. 2 Galan did not testify. The District Court expressly foun d the officers’ testimony to be credible and denied Galan’s motion to suppress. United States v. Galan , No. 14-CR-450, 2015 WL 1602151 (E.D.N.Y. Apr. 9, 2015). Based on the evidence adduced at the hearing, the court concluded that the officers had reasonable suspicion to initiate an investigatory stop in light of Galan’s furtive behavior, including the act of “removing an object from [his waistband,] an area where guns are typically carried, and secreting that object on the tire of a parked car.” Id. at *6. The court further concluded that, when a second officer “found the gun on the tire of the parked vehicle, the officers clearly had probable cause to arrest Galan,” at which point the officers could permissibly search Galan’s person notwithstanding the lack of a warrant. Id. at *7–8.

2 Although the complaint alleged that two officers participated in Galan’s apprehension, the District Court concluded after the suppression hearing that, in fact, thr ee officers had been involved. This discrepancy is not relevant to our analysis in the instant appeal.4 On October 16, 2015, a jury convicted Galan on the single charged count, of being a felon in possession of a firearm. Galan appe ared for sentencing on May 17, 2017. Over defense counsel’s objection, the District Court applied a two-level enhancement for obstruction of justice under section 3C1.1 of the United States Sentencing Guidelines, concluding that Galan willfully submitted ma terially false information in his affidavit. 3 The court calculated Galan’s Guidelines sentencing range as 57 to 71 months’ imprisonment, but ultimately determined that Galan merited an above-Guidelines sentence of 84 months’ imprisonment. Galan timely appealed, arguing th at the District Court erred in applying the
obstruction enhancement and also that his ove rall sentence is substantively unreasonable.

II.
On appeal from a district court’s decisi on to apply an enhancement for obstruction of justice, we review the court’s findings of fa ct for clear error, and we review de novo “a ruling that the established facts constitute obstr uction of justice, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Pena , 751 F.3d 101, 105 (2d Cir. 2014) (per curiam) (internal quo tation marks omitted). Where, as here, the government seeks “an obstruction-of-justice e nhancement based on perjurious testimony,” the enhancement will lie only if the district court finds that the de fendant “[gave] false testimony concerning a material matter with th e willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Thompson , 808 F.3d 190, 196 (2d Cir. 201 5) (per curiam) (quoting United States v. Dunnigan , 507 U.S. 87, 94 (1993)).
At Galan’s sentencing hearing, the District Court explained at length its reasons for concluding by a preponderance of the evidence th at Galan’s statements in the affidavit were materially false, and further, that Galan acted with the requisite intent to commit perjury. On appeal, Galan does not appear to challenge the District Court’s finding as to materiality, nor

3 Section 3C1.1 of the Guidelines pr ovides as follows: “If (1) the defend ant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.”5 could he: Galan’s affidavit spoke directly and in detail as to whether Galan placed a loaded gun on the tire of a parked car, an issue th at lay at the heart of both Galan’s suppression motion and the prosecution’s affirmative case at trial. See United States v. Lincecum , 220 F.3d 77, 80 (2d Cir. 2000) (per curiam ) (“Information is material when , if believed, it would tend to influence or affect” the “disposition of a suppression motion.” (alteration and internal quotation marks omitted)). Galan purports to cha llenge the District Court’s finding of falsity, but credible testimony from three police of ficers who were present amply supports the District Court’s finding, by a preponderance of the evidence, that Galan’s statement was
false. We thus see no clear error in the District Court’s finding on this score.
Galan’s principal challenge on appeal concer ns the District Court’s finding that he willfully attempted to mislead the court. He argu es, first, that he submitted the affidavit for the “limited purpose” of establishing a fact ual dispute sufficient to merit a hearing on his suppression motion, and that this does not suff ice to support the court’s imposition of the obstruction of justice enhancement. App’t Br. 18. Whatever Galan’s procedural goal may have been, however, the question before us is whethe r the record supports the District Court’s conclusion that his materially false statement was made willfully “rather than as a result of confusion, mistake, or faulty memory.” Thompson , 808 F.3d at 196.
Then, changing tack, Galan cites cases in whic h we rejected a “per se rule” that would permit a finding of perjury “any time a cour t credits officer testimony over that of a
defendant.” Id. (discussing United States v. Agudelo , 414 F.3d 345 (2d Cir. 2005)). We have indeed rejected a per se rule in the past. He re, however, the District Court did not presume willful perjury based on the mere fact that Ga lan submitted a statement later determined to be false. Rather, the court grounded its finding in the record. For exampl e, the District Court found insufficient evidence to support defens e counsel’s suggestion that Galan may have a faulty memory of the details of his arrest du e to a state of intoxication. The court then
considered the overall nature of Galan’s affi davit and emphasized the many specific details
offered in Galan’s account of his encounter with the NYPD. In prior cases, we have endorsed this very approach: if an affidavi t describes with particularity the “when” and
“where” of the defendant’s conduct “and the re sponse of the police,” that level of detail6 “support[s] an inference that th e affiant must either be telling the truth or committing perjury.” Pena , 751 F.3d at 106 (citing Lincecum , 220 F.3d at 79).
We identify no error in the District Court’s finding that, in his affidavit, Galan willfully misrepresented “unique and critical facts” concerning “what happened on the night of June 8th.” App’x 83. We accordingly a ffirm the court’s deci sion to apply the
enhancement.

III.
We next turn to Galan’s argument th at the 84-month sentence imposed by the District Court is substantively unreasonable. We review such challenges under a “deferential
abuse-of-discretion standard.” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc). As we explained in Cavera , “we will not substitute our own judgment for the district court’s on the question of what is sufficient to meet the [sentencing factors specified in 18 U.S.C. § 3553(a)] in any particular case,” and will find a sentence substantively unreasonable “only in exceptional cases where the trial court’ s decision cannot be located within the range of permissible decisions.” Id. (emphasis omitted) (interna l quotation marks omitted).
Here, Galan’s argument rests on generalizations about the average length of sentences imposed nationwide following a co nviction under section 922(g), and about low recidivism rates for middle-aged offenders like himself. (Galan was almost 50 years old when sentenced.) Galan does not meaningfully engage, however, with the District Court’s discussion of his specific charac teristics. These include an exte nsive history of violent crime involving firearms, as well as re peated disciplinary infractions , including serious breaches, during his periods of incarceration. Moreover, the District Court specifically expressed its view that the Sentencing Guidelines calculus unduly discounted the import of some of Galan’s older convictions. Galan has given us no reason to doubt that the District Court “reache[d] an informed and in dividualized judgment in [Galan’s] case as to what is ‘sufficient, but not greater than necessary’ to fulfill the purposes of sentencing.” Id. (quoting 18 U.S.C. § 3553(a)).

* * *7 We have considered Galan’s remaining argu ments and find them to be without merit. For the reasons set forth more fully above, we identify neither legal error nor clear factual error in the District Court’s decision to ap ply a two-level sentencing enhancement for obstruction of justice. We further conclude that Galan’s sentence is not substantively unreasonable. Accordingly, we AFFIRM the District Court’s judgment.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court