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‐ 929

United States v. Baires (Merino)



## 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 TO 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 8 th day of October, two thousand nineteen.

PRESENT:

DENNIS JACOBS

PETER W. HALL,

DEBRA ANN LIVINGSTON,

Circuit Judges

.

U NITED S TATES OF A MERICA

,

Appellee

,

v. 18

‐ 929

W ILBER B AIRES

, J OSE B ARRERA

, K EVIN C ARDONA

,

R UDY G UEMBES

‐ L ORENA

, J OSE C ELESTINO G UILLEN

‐

R IVAS

, C ARLOS H ERNANDEZ

, A BRAHAM I RAHETA

, A LEX M ACHADO

, N ELSON Q UINTEROS

,

Defendants

,

C HRISTIAN M ERINO

,

Defendant

‐ Appellant

.2 Appearing for Defendant

‐ Appellant : A LEXANDER E. E ISEMAN

, New York, NY.

Appearing for Appellee : S USAN C ORKERY (Alixandra E. Smith, on the

brief ), for Richard P. Donoghue, United States

Attorney for the Eastern District of New York,

Brooklyn, NY.

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

of New York (Kuntz, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on March 16, 2018, is AFFIRMED

.

Defendant

‐ Appellant Christian Merino appeals from the judgment of the district

court sentencing him principally to a below

‐ guidelines term of imprisonment of 120

months. Merino, a former leader of the Flushing, Queens clique of MS

‐ 13, entered into a

cooperation agreement with the Government in which he agreed to plead guilty to one

count of racketeering, in violation of 18 U.S.C. § 1962(c), one count of racketeering

conspiracy, in violation of 18 U.S.C. § 1962(d), and one count of discharging a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The superseding

information to which Merino pleaded listed seven racketeering acts consisting of

conspiracy to murder and attempted murder. After the Government submitted a U.S.S.G.

§ 5K1.1 letter noting Merino’s substantial assistance, Merino sought a sentence of time

served, approximately. The district court instead sentenced Merino to 120 months’3 imprisonment. In this appeal that follows Merino challenges only his sentence. We

assume the parties’ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

We review the sentence imposed by a district court for reasonableness, both

procedural and substantive, under a deferential abuse

‐ of

‐ discretion standard. United

States v. Cavera

, 550 F.3d 180, 187–88 (2d Cir. 2008) (en banc).

Merino insists on appeal that the district court’s explanation of his sentence was

insufficient (procedural error) and that the explanation that was given was insufficient to

support the sentence (substantive error). Regardless of the rubric used, Merino’s

arguments focus primarily on two points. He asserts first that specific deterrence could

not have been a factor here because Merino’s cooperation effectively precluded him from

returning to MS

‐ 13 and a life of crime. Second, he argues that general deterrence was not

furthered where, as here, he, a cooperator, was punished more harshly than were

noncooperating codefendants.

Merino has a point, but it is an insufficient basis on which successfully to challenge

the sentence imposed. True, the district court at one point stated that the sentence served

the goal of specific deterrence by encouraging Merino to sever his ties with MS

‐ 13

without acknowledging that Merino’s cooperation had not only cut him off from future

participation in the gang but had essentially made him and his family the target of MS

‐

13 death threats. Yet that statement did not stand alone. The district court also engaged4 in a thorough analysis of the cases relied on by Merino, explaining its view that those

cases did not provide a basis for concluding that Merino’s sentence need not be

determined with an eye to the need for specific deterrence. Those cases, in the district

court’s view, involved situations when the defendant had, as a result of his crimes, lost

his business, thus drastically affecting the defendant’s ability to use that business in the

commission of further crimes. Here, by contrast, the district court explained that

although Merino may end up in witness protection and “is now a pariah to the MS

‐ 13

gang,” Merino has not necessarily “lost all ability to conduct similar illegal activities.”

App. 91. The court’s detailed explanation is more than sufficient and does not

demonstrate an abuse of discretion.

Merino’s second argument, concerning the disparities between Merino’s sentence

and those imposed on codefendants who were allegedly similarly situated, is also

without merit; there is no legal requirement that a court consider, let alone explain,

sentencing disparities among codefendants. United States v. Wills

, 476 F.3d 103, 110 (2d

Cir. 2007) (abrogated on other grounds by Kimbrough v. United States

, 552 U.S. 85 (2007),

as recognized in United States v. Danilovich

, 731 F. App’x 45, 51 (2d Cir. 2018)). Merino

may be correct that his sentence, which was nearly as long as those of each of the

noncooperating codefendants, may serve more as a general deterrent to cooperating than

to gang activity. This result however, is a function of the quantity and seriousness of the5 offenses that Merino pled guilty to, rather than an abuse of discretion on the part of the

district court.

To be sure, Merino raises a potentially interesting possibility: namely, that a

district court might be misled into disfavoring a cooperator

– whom the government

requires to plead guilty to a litany of offenses in order to ward off insinuations that the

cooperator was given a sweetheart deal

– while codefendants are free to bargain down

the seriousness of the offenses to which they ultimately plead. However, Merino offers

no evidence that the court was misled by the plea

‐ bargaining process in this case. On the

contrary, during Merino’s sentencing, the district court specifically acknowledged its

authority (pursuant to Section 5K2.21 of the Sentencing Guidelines) to consider “conduct

underlying a charge dismissed as part of a plea agreement” in each case as necessary. At

bottom, the record indicated that Merino received the individualized consideration to

which he was entitled, and derived significant benefits from his cooperation: he received

a downward departure to a sentence 115 months below the bottom of the applicable

guidelines range, and he avoided the otherwise mandatory consecutive 10

‐ year term for

the § 924(c) count.

Merino’s below

‐ guidelines sentence of 120 months was neither procedurally nor

substantively unreasonable.6 We have considered Merino’s remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court