1 

13-1625-cr (L) 

United States v. Gabriel 

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 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 27th day of April, two thousand fifteen. 

 

PRESENT: RALPH K. WINTER, 

JOHN M. WALKER, JR., 

REENA RAGGI, 

 Circuit Judges. 

---------------------------------------------------------------------- 

UNITED STATES OF AMERICA, 

 Appellee, 

v. 13-1625-cr (L), 

 13-1655-cr (CON) 

LEONARDO GABRIEL, a/k/a Kendry Hernandez, a/k/a 

Chique, a/k/a Chicki Ricki, 

Defendant-Appellant. 

---------------------------------------------------------------------- 

FOR APPELLANT: Andres Manuel Aranda, Esq., Bronx, New York. 

FOR APPELLEE: Jessica K. Fender, Brian A. Jacobs, Assistant 

United States Attorneys, for Preet Bharara, 

United States Attorney for the Southern District 

of New York, New York, New York. 
2 

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

of New York (Robert W. Sweet, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment entered on April 12, 2013, is AFFIRMED. 

Defendant Leonardo Gabriel stands convicted after guilty pleas to one count of 

conspiracy to distribute and to possess with intent to distribute at least five kilograms of 

cocaine, 50 grams of crack cocaine, and one kilogram of heroin, see 21 U.S.C. 

§§ 841(a)(1), (b)(1)(A), 846; and one count of conspiracy to distribute and to possess with 

intent to distribute at least 500 grams of cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 

846. Sentenced to a statutorily mandated 240-month prison term on the first conspiracy 

based on the filing of a prior felony information, and a concurrent, mandated 60-month 

prison term on the second conspiracy, Gabriel argues on appeal that the district court erred 

in (1) failing to inquire whether he affirmed or denied his prior felony conviction, as 

required by 21 U.S.C. § 851(b); and (2) finding facts in violation of Alleyne v. United 

States, 133 S. Ct. 2151 (2013). We assume the parties’ familiarity with the facts and 

record of prior proceedings, which we reference only as necessary to explain our decision 

to affirm. 

1. Prior Felony Conviction 

Gabriel correctly notes the district court’s failure to follow procedures set forth in 

21 U.S.C. § 851 for ascertaining whether he affirmed or denied the alleged prior felony 

conviction. But as this court has recognized, a “[f]ailure to adhere to the letter of § 851’s 
3 

procedures does not automatically invalidate the resulting sentence.” United States v. 

Espinal, 634 F.3d 655, 665 (2d Cir. 2011). Indeed, “there is no reason why 

non-prejudicial errors in complying with the procedural requirements of § 851 should 

require reversal.” Id.1

 Gabriel demonstrates no such prejudice here. 

First, Gabriel has not disputed—either in the district court or on appeal—that he 

was previously convicted of the underlying felony drug offense. See 21 U.S.C. § 851(b); 

cf. United States v. Espinal, 634 F.3d at 666–67 (holding that defects in § 851 procedure 

“potentially affected” court’s determination where, among other things, defendant might 

have filed written response disputing prior conviction if procedures were followed and 

court may have been unable to find, beyond a reasonable doubt, “that [defendant] was the 

person convicted” of prior felony). Indeed, the fact of such conviction finds support in 

(1) Gabriel’s signed cooperation agreement, wherein he agreed to affirm the 1998 felony 

drug conviction at the time of his guilty plea; (2) Gabriel’s request for, and procurement of, 

numerous sentencing adjournments in order to seek vacatur of that prior conviction in state 

court (which he failed to achieve); and (3) Gabriel’s failure to dispute any facts contained 

in the presentence report, which included the fact of his 1998 conviction for criminal 

possession of a controlled substance in the second degree, or to contest the resulting 

Guidelines calculation of a criminal history category of III, which was based in part on that 

 

1

 Because Gabriel’s argument would fail whether reviewed for harmless error or plain 

error, we need not decide which standard applies here. See United States v. Espinal, 634 

F.3d at 665 n.7 (observing that “[s]ome of our sister circuits have held that only plain error 

review is available where the defendant has not objected to § 851 procedural deficiencies 

below,” but declining to decide which standard applies). 
4 

prior conviction. Moreover, Gabriel could not challenge the validity (as opposed to the 

fact) of his prior felony conviction because it occurred more than five years before the 

filing of the prior felony information. See 21 U.S.C. § 851(e) (“No person who stands 

convicted of an offense under this part may challenge the validity of any prior conviction 

alleged under this section which occurred more than five years before the date of the 

information alleging such prior conviction.”). 

Accordingly, we identify no reversible error in the district court’s failure to comply 

with the procedures set forth in 21 U.S.C. § 851(b). 

2. Judicial Fact-Finding 

Gabriel further contends that the district court increased his statutory minimum 

sentence, pursuant to 21 U.S.C. § 841(b)(1)(A), on the basis of impermissible judicial 

fact-finding about his prior conviction. We disagree. “[W]here a statute provides for an 

enhanced penalty based on a defendant’s prior convictions, the fact of those convictions is 

a sentencing factor to be determined by the court rather than a jury, and—as far as the 

Constitution is concerned—sentencing factors can be proved to a judge at sentencing by a 

preponderance of the evidence.” United States v. Espinal, 634 F.3d at 664 (internal 

quotation marks omitted); see generally Almendarez-Torres v. United States, 523 U.S. 

224, 239–47 (1998) (holding that, where statute provides enhanced penalty based on prior 

conviction, fact of conviction is sentencing factor to be determined by court rather than by 

jury). Alleyne v. United States, 133 S. Ct. 2151 (2013) is not to the contrary, because the 

Supreme Court there declined to revisit Almendarez-Torres. See id. at 2160 n.1; accord 
5 

United States v. Dantzler, 771 F.3d 137, 143 (2d Cir. 2014) (recognizing continued validity 

of Almendarez-Torres following Alleyne). Here, as noted above, Gabriel did not dispute 

the fact of his previous felony drug conviction. Accordingly, we identify no error in the 

district court’s enhancement of Gabriel’s statutory minimum sentence—pursuant to 21 

U.S.C. § 841(b)(1)(A)—on that basis. 

3. Conclusion 

We have considered Gabriel’s remaining arguments and conclude that they are 

without merit. We therefore AFFIRM the judgment of the district court. 

FOR THE COURT: 

CATHERINE O’HAGAN WOLFE, Clerk of Court