1 14-2494-cr(L) United States v. Vasquez 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 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 DA TABASE (WITH THE NOTATION “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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 1 st day of December, two thousand sixteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge , RALPH K. WINTER, REENA RAGGI, Circuit Judges

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-------------------------------------- ---------------------------- UNITED STATES OF AMERICA, Appellee , v. Nos. 14-2494-cr(L) 14-3630-cr(Con) EMILIANO VASQUEZ, AKA “Patalarga,” and ALEJO POLANCO, AKA “Hondo,” Defendants-Appellants , * CARMELO DANILO ARAUJO, EDWIN TAVARES, AKA “Chegui,” an d GILBERTO ARIAS, AKA “Troy,” Defendants.

-------------------------------------- ---------------------------- FOR APPELLANT EMILIANO Donna R. Newman, Law Offices of Donna R. VASQUEZ: Newman, PA, New York, New York; Clara Kalhous, Esq. New York, New York.

* The Clerk of Court is directed to amend the case caption as set forth above.2 FOR APPELLANT ALEJO Ephraim Sa vitt, Esq., New York, New York. POLANCO:

FOR APPELLEE: Nathan D. Re illy, Soumya Dayananda, and David C. James, Assi stant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York. Appeal from a judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgments entered on Ju ly 7, 2014 and September 17, 2014 are

AFFIRMED. Defendants Emiliano Vasquez an d Alejo Polanco were conv icted after a jury trial of conspiracy to distribute and possess with intent to distribute heroin, cocaine, and marijuana, see 21 U.S.C. §§ 841, 846; cons piracy to commit Hobbs Act robbery, see 18 U.S.C. § 1951(a); discharge of a firearm in re lation to a drug trafficking crime or a crime of violence, see id. § 924(c)(1)(A), and causing death through the use of a firearm, see id. § 924(j)(1). Vasquez challenges his convictions on the grounds that (1 ) the district court

should have deemed him inco mpetent to stand trial, or held a second competency hearing; (2) his firearms-related offenses we re not reasonably fore seeable consequences of the robbery and narcotics conspiracies; an d (3) it cannot be determined whether his firearms offenses validly rested on any “crime of violence” or “dru g trafficking crime.”

Polanco’s counsel moves to be relieved under Anders v. California, 386 U.S. 738 (1967), and the government moves for summary a ffirmance of Polanco’s conviction. We3 assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to gran t Anders relief to Polanco’s

counsel and to affirm the conv ictions of both defendants. 1. Emiliano Vasquez a. Competency Vasquez faults Judge Townes’s finding, made after an evid entiary hearing, that he was competent to stand trial an d Judge Dearie’s failure sua sp onte to order a new hearing after the case was reassigned to him. To find a defendant competen t to stand trial, a district court must make a preponderance finding that the defendant has “(1) ‘sufficien t present ability to consult with his lawyer with a reasonable degree of rational understanding’ and (2) ‘a rational as well as factual understanding of the procee dings against him.’” United States v. Morrison, 153 F.3d 34, 46 (2d Ci r. 1998) (quoting United States v. Nichols, 56 F.3d 403, 410 (2d Cir. 1995)). The dete rmination may rest on both medical evidence and the

court’s own observations of the defendant. S ee United States v. Nic hols, 56 F.3d at 411. Where, as here, counsel makes no motion for a new competency hearing, the district court must nonetheless “be alert” to change s in the defendant’s competency, Drope v. Missouri, 420 U.S. 162, 181 (1975), and order a new hearin g sua sponte “if there is

reasonable cause to believe” th at such status has changed, 18 U.S.C. § 4241(a). We

review the district court’s competency finding for clear error, see United States v. Morrison, 153 F.3d at 46, and the failure to order a new hear ing for abuse of discretion,4 see United States v. Arenbur g, 605 F.3d 164, 168–69 (2d Cir. 2010). We identify

neither here. Judge Townes’s comp etency finding was made after conducting a hearing to explore the inconsistent opinions of govern ment and defense psyc hologists. Judge Townes’s decisions to credit the findings and opinion of the government expert, and not to rely on those of the defense expert, were not clearly erroneous given record evidence that the defense expert lacked formal or institutional training in forensic psychology; deemed 85–90% of all persons he examined incompetent to stand trial; had employed an excessively exacting competency standard; and had been critic ized by several state and federal courts for prior compet ency examinations. See, e.g ., United States v. Gigante, 166 F.3d 75, 84 (2d Cir. 1999) (d escribing competency review as “highly deferential,” and observing that choice between “two pe rmissible views of the evidence” does not manifest clear error (internal quotation mark s omitted)). To the extent Vasquez urges a different standard for assessing a defendant’s competency than is pr esently recognized in our precedents, this panel is b ound by that precedent unless it is reversed by this court en banc or by an intervening contrary ruling by the Supreme Court. See Centurion v. Holder, 755 F.3d 115, 123 (2d Cir. 2014). We further conclude that Judge Dearie did not abuse his discretion in failing sua sponte to order a new competen cy hearing. The record here shows Vasquez stating that he fully understood the charges against him a nd both he and his counsel professing to the district court their ability to communicate e ffectively with one another. At sentencing, Judge Dearie acknowledge d his awareness of Vasquez’s ment al health issues, but stated5 that such issues did not give rise to comp etency concerns because Vasquez was “entirely cogent.” App’x 1733. On this record, th e district court would not have cause to believe that Vasquez’s competency had dete riorated since Judge Townes had found him

fit for trial. In urging otherwise, Vas quez highlights his refusal to plead guilty to firearms violations under a Pinkerton theory of liability, and his disagreements w ith four attorneys.

The district court was alert to such issues. Indeed, it specifically found that Vasquez’s difficulty dealing with counsel was a function of his personality, not his competency. It further found his plea decision to reflect no t incompetency but a strong, if mistaken, belief that he was less responsible for the loss of life in the robbery because he was “separat[ed] from the more violent ends of the[] conspiracies,” App’x 1733. Thus, neither Vasquez’s plea decision nor his relations with counsel manifest the district court’s

abuse of discretion in not su a sponte ordering a new compet ency hearing. Compare, e.g., United States v. Kerr, 752 F.3d 206, 217 (2d Cir. 2014) ( holding that district court did not abuse discretion in declining to order new competency hearing based on defendant’s “obstinate, belligerent, and obse ssive behavior,” “obsession with his [own] theories of defense,” “distrust of his attorney s,” or desire to represent himself at trial), with United States v. Auen, 846 F.2d 872, 87 5, 878 (2d Cir. 1988) (declining to order competency hearing constituted abuse of disc retion where defendant consistently gave incomprehensible responses to court in quiries and claimed to be victim of “psychopolitical terrorism by the Internal Revenue Service”), and United States v.6 Arenburg, 605 F.3d at 168 (same, wher e defendant’s trial strategy involved cross-examining witnesses on “microwave ch annels broadcasting his thoughts”). Accordingly, Vasquez’s competen cy challenges fail on the merits. b. Reasonable Foreseeability Vasquez argues that the evidence was in sufficient to support his 18 U.S.C. § 924(c) and (j) convictions premised on Po lanco’s discharge of a firearm during the charged narcotics and robbery c onspiracies and the resultant de ath of Liliana Colmenares. We review a sufficiency challenge “de novo, viewing the evidence in the light most favorable to the government, with all reasonab le inferences drawn in its favor.” United States v. Rowland, 82 6 F.3d 100, 10 7 (2d Cir. 2016) (internal qu otation marks omitted). A defendant may be guilty of a crime committe d by a co-conspirator “in furtherance of the conspiracy” if it is “r easonably foreseeable to the defendant as a consequence of their criminal agreement.” United States v. Park es, 497 F.3d 220, 232 (2d Cir. 2007) (citing Pinkerton v. United Stat es, 328 U.S. 640 (1946) (internal quotation marks omitted)). “Whether a particular s ubstantive crime is foreseeable and in furtherance of the conspiracy is a question of fact to be decided by the jury.” United States v. Masotto, 73 F.3d 1233 , 1241 (2d Cir. 1996). Vasquez argues that the jury could not find foreseeability proved in the absence of evidence of an agreem ent that “weapons would be di scharged” during the conspiracy, and in light of Polanco’s statements to hi s co-conspirators that Liliana Colmenares’s

death was an “accident.” Def.’s Br. 47–48 . The argument fails because Pinkerton liability extends not only to co-conspirators ’ desired results, but to all reasonably7 foreseeable results in furtherance of the co nspiracy. Here, the jury could reasonably

have concluded that even an unintended sh ooting death was a “natural,” and therefore, foreseeable “consequence of a robbery . . . premised on the use of overmastering force

and violent armed confrontation.” United Stat es v. Parkes, 497 F.3d at 232. The trial evidence showed that Vasquez’ s co-conspirators always ca rried firearms during their prior robberies and knew that they were robbin g drug dealers, who might well be armed. The discharge of a firearm and ensuing death are reasonably foreseea ble consequences of such criminal activity. See id. (uphol ding Pinkerton liabilit y for death despite defendants’ expectation that armed robbery would be “easy” ). No different conclusion is warranted by the fact that, as a getaway driver, Vasquez was not in the room when the discharge of the firearm or the death occurred, see United States v. Heras, 609 F.3d 101, 110 (2d Cir. 2010). In sum, the evidence was sufficient to support the foreseeability finding necessary for Vasqu ez’s convictions under 18 U.S.C. § 924(c) and (j).

c. “Crime of Violence” or “Dru g Trafficking Crime” Predicate Vasquez further challenges his § 924 convi ctions on the ground that the general

verdict form fails to show wh ether guilt was premised on (1) firearms use “during and in relation to” the charged narcotics conspiracy (a “drug trafficking crime”) or (2) the charged Hobbs Act robbery conspiracy. He argues that Hobbs Act robbery is not a predicate “crime of violence” under the Supr eme Court’s reasoning in Johnson v. United States, 135 S. Ct. 2551 (2015), 1 raising a Yates concern. See United States v. Agrawal,

1 While this court specifically rejected a Johnson challenge to Hobbs Act robbery in United States v. Hill, 832 F.3d 135, 138 (2d Cir. 2016), the mandate has not yet issued.8 726 F.3d 235, 250 (2d Cir. 2013) (noting that general verd ict of guilty may manifest legal error under Yates v. United States, 354 U.S. 298 (1957), where (1) “disjunctive theories of culpability” were submitted to jury, (2) it is “impossible to tell which ground the jury selected,” and (3) “[one] of the theories was legally insufficient” (alteration in original)). Whether we review this argument based on intervening law for plain error, see United States v. Marcus, 560 U.S. 258, 262 (201 0) (requiring showing of (1) error; (2) that is clear and obvious; (3) affec ting “substantial rights”; and (4) seriously impugning “fairness, integrity, or public reputation of judicial proceedings”), or modified plain error, see United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1990) (placing burden on government to show absence of prejudice when applicable law is clarified after trial), abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997), it necessarily fails for lack of any error. Even if Hobbs Act robbery were not a ca tegorical crime of violence, Vasquez’s § 924 convictions are clearl y supported by a narcotics predicate presenting no legal

concern. That is because the sole Pi nkerton theory supporting Vasquez’s § 924 convictions is that co-conspirator Polanco fata lly discharged a firear m in furtherance of an agreement to rob drug deal ers and to distribute any rec overed narcotics and narcotics proceeds. Thus, there was no po ssibility that the jury’s § 924( c) verdict rested only on a Hobbs Act robbery predicate be cause (1) the robbery was an act inextricably intertwined with and, indeed, in furtherance of the ch arged narcotics conspiracy, and (2) the jury found that narcotics conspiracy proved beyond a reasonable doubt. In these circumstances, where a cha llenged § 924 verdict undo ubtedly rests on a valid9 drug-trafficking predicate, no Yates concern arises from a possible defect in a related “crime of violence” predicate. See United Stat es v. Zvi, 168 F.3d 49, 55–56 (2d Cir. 1999) (rejecting Yates challenge where tim e-barred money-laundering predicate implicitly required finding of valid wire-fraud predicate); see also United States v. Coppola, 671 F.3d 220, 237–38 (2d Cir. 2012) (holding any Yates error harmless where predicates rested on same extortive acts of which jury found defendants guilty). To the extent Vasquez hypothesizes a wa y in which the firearms discharge and resulting murder could have related to the ro bbery, but not the narcotics conspiracy, he points to nothing in the record showing that such distinct theories we re ever advanced at trial. Rather, the record shows only, as earlier noted, that the robbery scheme was presented as a part of the proved narcotics scheme. Accordingly, we affirm Vasquez’s § 924(c) and (j) convictions based on the narc otics trafficking predicate without needing to decide if they could also rest on the robbery predicate. 2. Alejo Polanco Polanco’s court-appointed counsel does not challenge his conviction but, rather, moves to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) (allowing counsel to ask for permission to withdraw if convinced, after consci entious investigation, that appeal is frivolous). The government, in turn, moves for su mmary affirmance. “We will not grant an Anders motion unle ss we are satisfied that counsel has diligently searched the r ecord for any arguably meritorious issue in support of his client’s appeal, and defense counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.” United States v. Whitley, 503 F.3d 74, 76 (2d Cir. 2007) (internal10 quotation marks omitted)). Assessing the poten tial merit of an appeal is the role of counsel, and this court ordi narily will not “independently determine the merits of an appeal[] absent a properly prepared Anders brief.” United States v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993). Here, Polanco’s co unsel did aver that he had searched the record for any arguments available on a ppeal, but did not, like counsel for his co-defendant, supplement the record in light of Johnson v. United States, 135 S. Ct. 2551 (2015). To the extent such an argument is even “arguably meritorious,” it was counsel’s duty either to supplement the Anders motion or to join in briefing filed on behalf of Vasquez. We do not lightly excuse such an omission but, in the particular circumstances presented here, we are able “i ndependently [to] dete rmine the merits of [the] appeal” without further briefing on this issue. See United States v. Burnett, 989 F.2d

at 104. First, Polanco and Vasquez were convicted, after a joint tria l, of the same offenses. Polanco, however, cannot pursue the firs t two challenges raised by Vasquez because (1) his competency was never at issue, and (2) his § 924 liability was not premised on Pinkerton, but on his role as the actual sh ooter. Second, while Polanco’s counsel failed to raise any Johnson argument akin to that advanced by Vasquez’s counsel, such an argument would fail for the reason just disc ussed: that is, both defendants’ § 924 convictions are supported by a proved narcotics conspiracy predicate that is inextricably

intertwined with the Hobbs Act robbery predicate but w ithout the latter’s possible

Johnson issue.11 Third, counsel’s discussion of the substa ntive and procedural reasonableness of Polanco’s sentence, see United States v. Whitley, 503 F.3d at 77, while brief, was adequate. As to procedural reasonablene ss, Polanco’s killing of Liliana Colmenares made him statutorily eligible for a life senten ce. See 18 U.S.C. § 924(j). The district court noted that the § 924(j) conviction generated a total offe nse level of 44, see U.S.S.G. § 2A1.1, App. A, elevating Polanco’s Guidel ines sentencing range to life imprisonment,

see 2013 U.S.S.G. Manual Ch. 5 Pt. A, Sentencing Table, which sentence the government urged. As to substantive reasonableness, the district court sentenced Polanco to a below-Guidelines 27-year prison term, finding that Polanco had not intended to kill Colmenares, and appeared “cont rite” and “haunted” by her de ath, see August 20, 2014 Sentencing Transcript, at 16:23, 17:4–6. In general, a below-Guidelines sentence is strong evidence that a sentence is not substa ntively unreasonable, see United States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015), and Polanco has no colorable argument here that the 27-year sentence was outside the broa d range of discretion afforded sentencing judges, see United States v. Cavera, 550 F.3d 180, 188–89 (2d Cir. 2008) (en banc); United States v. Jones, 531 F. 3d 163, 174 (2d Cir. 2008). No other non-frivolous issues are apparent. Finally, the record demonstrat es that counsel pr ovided Vasquez with a copy of his motion and accompanying brief, a nd wrote to Polanco, even before filing his brief, to explain its consequences and to clarify that Polanco had a right to pursue his appeal pro

se or to seek new counsel. Counsel direct ed Polanco to obtain the assistance of a bilingual inmate in reviewing the message, and thereafter, Polanco confirmed that he12 understood the message and was consenting to counsel’s withdrawal. While counsel was also required to append to his brief a tran script of the district court proceedings, see United States Court of Appeals for the S econd Circuit, How to File an Anders Brief, http://www.ca2.uscourts.gov/clerk/case_fili ng/appealing_a_case/pdf/Anders%20brief%2 0instructions%20and%20check list%20combined%2010-11.pdf, his failure to do so does not here require denial of the motion because copies of the relevant transcripts were available through Vasquez’s appeal a nd the district court’s docket. Accordingly, as to Polanco, we grant counsel’s Anders motion to withdraw and the government’s motion for summary affirmance.

3. Conclusion We have considered Vasque z’s remaining arguments and conclude that they are without merit. Accordingly, the Anders motion of Polanco’s counsel is GRANTED and the judgments of conviction as to bot h Polanco and Vasquez are AFFIRMED.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court