1 16-3515 United States v. Zayas 

### 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED 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 Courthouse , 40 Foley Square, in th e City of New York, on the 24 th day of September, two thousand eighteen.
Present: R OBERT A. K ATZMANN , Chief Judge , R AYMOND J. L OHIER , J R ., Circuit Judge , T IMOTHY C. S TANCEU , Judge. *

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. No. 16-3515
P EDRO R IVERA , AKA Chetio, R ICARDO D AVILA M ERCADO , AKA Voltio, J UAN J. R IVERA O RTIZ , AKA Cheo, I VETTE P EGAN R ODRIGUEZ , AKA Ivy, F RANKIE R IVERA , O RLANDO G ONZALEZ R OMAN , AKA BeBo, J UAN G. C HEVEREZ , AKA Guinchi, J UAN H ERNANDEZ , AKA Johnny, AKA Enano, A XEL M ATTA -F IGUEROA , AKA Joelito, P EDRO G IL R IVERA O RTIZ , AKA Gil, J UAN L. C HEVEREZ , AKA Bolillo, J OSE V ALENTIN S ANCHEZ , J EAN N EGRON , AKA

* Timothy C. Stanceu, Chief Judge of the United St ates Court of International Trade, sitting by designation.2 Pollo, H ECTOR H ERNANDEZ , J R ., J ULIO M ADERA F REYTES , J ULIO O TERO , L ANDON C LARKE , E DGARDO C ENTENO , A DDISMALICB R OSARIO , AKA Adi, O SCAR V ALENTIN , AKA Tato, A NGEL C OLLAZO G ARCIA , AKA Yuyo, Defendants , L UIS Z AYAS , AKA Guichan, Defendant-Appellant

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_____________________________________ For Appellant: Marsha R. Taubenhaus, Law Offices of Marsha R. Taubenhaus, New York, NY. For Appellee: Lauren C. Clark (Sandra S. Glover, of counsel ), Assistant United States Attorneys, for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT. Appeal from a judgment of the United States District Court for the Di strict of Connecticut (Bryant, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-appellant Luis Zayas, who pleaded guilty to conspiracy to possess with intent to distribute cocaine in viol ation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846, appeals from a judgment of the district court (Bryant, J .) sentencing him to 85 months’ imprisonment and five years’ supervised release. We assume the part ies’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal. Zayas’s primary contention on appeal is that the district court erred in finding him responsible for at least five kilograms of co caine and therefore miscalculated the Sentencing Guidelines range applicable to his offense. See United States v. Cavera , 550 F.3d 180, 190 (2d3 Cir. 2008) (“A district court co mmits procedural error where it . . . makes a mistake in its Guidelines calculation . . . .”); U.S.S.G. § 2D 1.1(a)(5), (c), app. A (p roviding that the base offense level for a drug conspiracy is determined by the type and quantity of drugs involved in the offense). “The quantity of drugs attributable to a defenda nt is a question of fact,” which is for the district court to determine by a preponderance of the evidence. United States v. Jones , 531 F.3d 163, 175 (2d Cir. 2008). Where, as he re, “there is no drug seizure or the amount seized does not reflect the scale of the offense, the court sh all approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1 Application Note 5. “When a district court ma kes a finding of fact with respect to the amount of drugs attributable to a defendant, we review that finding for clear
error.” United States v. Batista , 684 F.3d 333, 344 (2d Cir. 2012) (quoting United States v. Ramirez , 609 F.3d 495, 503 (2d Cir. 2010)). In describing the offense conduct of the c onspiracy in which Zayas participated, the Presentence Investigation Report (PSR) referenced quantities of cocaine distributed by the conspiracy, as evidenced by sei zed packages of cocaine, drug ledgers, and discussions about drugs and drug proceeds during wiretapped phone conversations. Following an evidentiary component of the sentencing hearing, during which a law enforcement officer testified to Zayas’s participation in the conspiracy, the district co urt adopted the factual findings of the PSR and found that Zayas was responsible for at least fi ve but not more than fifteen kilograms of cocaine. 1

1 Zayas did not object to the factual findings contained in the PSR, but only to the ultimate drug quantity calculation and the conclusion that certain refere nces in wiretapped conver sations concerned drugs.4 Zayas’s arguments that this fi nding is clearly erroneous are un availing. First, he contends that he should not be considered responsible for drug quantities stemming from transactions in which he did not personally part icipate. But where a defendant is convicted of conspiracy his base offense level is based on “all acts and om issions of others” that occurred during the conspiracy and were “within the scope of,” “in furtherance of,” and “reasonably foreseeable in connection with that criminal activity.” U.S. S.G. § 1B1.3(a)(1)(B). That means that the Guidelines attribute to Zayas al l “reasonably foreseeab le” quantities of cocaine distributed by the conspiracy. See, e.g. , United States v. Payne , 591 F.3d 46, 70 (2d Cir. 2010) (“[The defendant] was accountable for all reasonably foreseeable quan tities of crack distribu ted by the conspiracy of which he was a member.” (i nternal quotation marks omitted)). The question, then, is whether Zayas could reasonably foresee th e distribution of at least five kilograms of cocaine by the conspiracy. We find no error in the district court’s conclusion that he could, given his role in the conspiracy. There was ample support for the dist rict court’s finding th at Zayas was a “close associate of Mr. Rivera,” and that he had a “centr al role in being the go-between for the Puerto Rican suppliers of the drugs and Mr. Rivera,” Ap p. 168, as Zayas talked ex tensively with Rivera about trafficking kilogram quantities of cocaine and did the same with Rivera’s supplier, Balto. Second, Zayas objects to the use of seized drug ledgers to estimate drug quantity. While he concedes that notations reflecting drug proceed s can be used to calculate drug quantity based on the market price for the type of drugs in que stion, he argues that ther e was not “any evidence” about the market price of cocaine to support th e district court’s calcu lation. Appellant’s Br. 42. That is incorrect: in multiple wiretapped conversations, Zayas and his interlocutor made apparent references to the market price of cocaine, whic h ranged from $30 to $34 per gram. In light of that evidence, and without identifying any evidence demonstrating a di fferent market price, Zayas5 cannot show that the district court’s use of a c onservative estimate of $45 per gram in calculating drug quantity from the ledgers was clear error. 2 Third, Zayas argues that it is improper to estimate drug quantity by extrapolating from the quantity of cocaine containe d in seized packages and the fact that he received other suspicious packages ( i.e. , by assuming that those other pa ckages contained roughly the same amount of cocaine as the seized packages). While we have disapproved of similar instances of extrapolation in the past, see, e.g. , United States v. Shonubi , 998 F.2d 84, 89–90 (2d Cir. 1993), we need not address this objection here. That is because the distri ct court’s findings are sufficient to show that the conspiracy di stributed more than five kilogr ams of cocaine without any such extrapolation, merely by adding the quantities produced by the seiz ed packages, th e drug ledgers, and conversations about drugs and drug proceeds. Fourth, Zayas objects to the inference that his lack of any other significant means of support during the time of the conspiracy beside s income from drug trafficking demonstrated that he derived substantial proceeds from drug dea ling. But the district cour t’s discussion of this consideration during the sentenci ng hearing does not suggest that the court relied on such an inference. Moreover, as with the extrapolat ion of quantities from unseized packages, this inference is unnecessary to su stain the drug quantity finding. Thus, we conclude that the drug quantity finding was not clearly erroneous and that Zayas has failed to demonstrate pr ocedural error in the calcula tion of his Guidelines range.

2 When calculating drug quantity based on cash value and per-unit price, assuming a higher perunit cost will produce a lower drug quantity. Thus , the use of a $45 per gram price rather than, say, a $30 per gram price is advantageous to th e defendant because it calculates a lower drug quantity given the same amount of proceeds.6 Zayas’s other contention on a ppeal is that his sentence was both procedurally and substantively unreasonable because the district c ourt did not adequately consider, nor impose a sentence that was appropriate in light of, his complete lack of criminal history. “We review a sentence for procedural and substantive reason ableness under a ‘deferentia l abuse-of-discretion standard.’” United States v. Singh , 877 F.3d 107, 115 (2d Cir. 2017) (quoting Gall v. United
States , 552 U.S. 38, 41 (2007)). As to procedural reasonableness, and specifi cally the requirement that a district court must “consider the § 3553(a) factors” when imposing a sentence, Cavera , 550 F.3d at 190, Zayas argues that the district court fa iled to acknowledge his lack of criminal history, which bears on the “history and characteristics of the defendant ,” “just punishment,” and “adequate deterrence,” 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(B). But “the law does not impose any rigorous requirement of specific articulation on sentencing judges with respect to their consideration of § 3553(a) factors.” United States v. Verkhoglyad , 516 F.3d 122, 131 (2d Cir. 2008) (internal quotation marks omitted). In any event, the district court did specifically state, in the context of calculating Zayas’s criminal history category, that “[t]he De fendant ha[s] no criminal history whatsoever.” App. 171; see United States v. Truman , 581 F. App’x 26, 32 (2d Cir. 2014) (summary order) (concluding that the district court adequately took into account the defendant’s lack of criminal history “in the calculation of the Guidelines range, which was specifically mentioned by the court”). We therefore fi nd no procedural error. In contending that his 85-month sentence was substantively “greater than necessary,” 18 U.S.C. § 3553(a), Zayas argues th at a less severe sentence woul d be sufficient to adequately punish and deter an offender like himself, name ly a first-time offender who is older and has never before been arrested. While a district court surely may, in its discretion, take such7 considerations into account, we deem a sentence substantively unreasonable “only in exceptional cases where the trial court’s decision cannot be located with in the range of permissible decisions.” Cavera , 550 F.3d at 189 (internal quotation marks omitted). Zayas’s sentence—for playing a significant role in a c onspiracy that imported and distri buted relatively large quantities of cocaine—does not meet this sta ndard, as it is not “so ‘shock ingly high, shockingly low, or otherwise unsupportable as a matter of law’ th at allowing [it] to stand would ‘damage the administration of justice.’” United States v. Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012) (quoting United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009)). We therefore find no substantive error in Zayas’s sentence. We have considered all of Za yas’s contentions on appeal an d have found in them no basis for reversal. For the foregoing reasons, th e judgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk