1 13-1625-cr (L) United States v. Gabriel 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 AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’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 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 27 th 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 Ke ndry 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 fo r 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 ORDERE D, ADJUDGED, AND DECREED that the judgment entere d 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 in tent 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 cons piracy to distribute and to possess with intent to distribute at least 500 grams of coca ine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. Sentenced to a statutorily mandated 2 40-month prison term on the first conspiracy based on the filing of a prior felony info rmation, and a concurrent, mandated 60-month prison term on the second conspiracy, Gabriel ar gues 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 vi olation 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 refere nce 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 a ffirmed or denied the alleged prior felony conviction. But as this court has recognized, a “[f]ailure to adhere to the letter of § 851’s3 procedures does not automatically invalidate the resulting sentence.” United States v. Espinal, 634 F.3d 655, 665 (2d Cir. 20 11). Indeed, “there is no reason why non-prejudicial errors in complying with th e 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 fe lony drug offense. See 21 U.S.C. § 851(b); cf. United States v. Espinal, 63 4 F.3d at 666–67 (holding th at 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 reas onable doubt, “that [defendant] was the person convicted” of prior felony). Indeed, th e 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 fo r, and procurement of, numerous sentencing adjournments in order to se ek vacatur of that pr ior conviction in state court (which he failed to achieve); and (3) Ga briel’s failure to dispute any facts contained in the presentence report, which included th e 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 ca tegory of III, which was ba sed in part on that

1 Because Gabriel’s argument would fail whet her reviewed for harmless error or plain error, we need not decide whic h standard applies here. See United States v. Espinal, 634 F.3d at 665 n.7 (observing that “[s]ome of our si ster circuits have held that only plain error review is available where the defendant has no t objected to § 851 proc edural 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 re versible 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 distri ct 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 di sagree. “[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 ca n 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 Al mendarez-Torres v. United States, 523 U.S. 224, 239–47 (1998) (holding that, where statut e provides enhanced pe nalty based on prior conviction, fact of conviction is sentencing fa ctor to be determined by court rather than by jury). Alleyne v. United States , 133 S. Ct. 2151 (2 013) is not to the contrary, because the Supreme Court there declined to revisit Alme ndarez-Torres. See id. at 2160 n.1; accord5 United States v. Dantzler, 771 F.3d 137, 143 (2d Cir. 2014) (re cognizing continued validity of Almendarez-Torres following Alleyne). Here , as noted above, Gabriel did not dispute the fact of his previous felony drug convicti on. Accordingly, we id entify 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 WOLF E, Clerk of Court