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United States v. Maldonado

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX 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 18 th day of September, two thousand

fourteen.

PRESENT: JOHN M. WALKER, JR.,

RICHARD C. WESLEY,

Circuit Judges,

JOHN F. KEENAN,

District Judge. *

________________ _______________ _____________

UNITED STATES OF AMERICA,

Appellee,

‐ v. ‐ No. 12

‐ 3487

‐ cr

SAMUEL MALDONADO,

Defendant

‐ Appellant.

* The Honorable John F. Keenan, of the United States District Court for the Southern

District of New York, sitting by designation.2 ________________ _______________ _____________

FOR APPELLANT: MARSHA R. TAUBENHAUS, New York, NY.

FOR APPELLEE: STEPHAN J. BACZYNSKI, Assistant United States

Attorney, for William J. Hochul, Jr., United States

Attorney for the Western District of New York, Buffalo,

NY.

________________ _______________ _____________

Appeal from the United States District Court for the Western District of

New York (Charles J. Siragusa, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment and sentence of the district

court be and hereby are AFFIRMED.

After a jury trial, Defendant Samuel Maldonado was convicted of

conspiracy with intent to distribute 500 or more grams of cocaine, 21 U.S.C.

§ 846, and possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). 1

We assume the parties’ familiarity with the facts of this case. Maldonado raises

five issues on appeal.

First, Maldonado argues that there was insufficient evidence to support his

conspiracy conviction. Whether sufficient evidence existed to support a

conviction is reviewed de novo

. United States v. Harvey

, 746 F.3d 87, 89 (2d Cir.

1 The jury returned a not guilty verdict for the third charge of possession of a firearm by

a felon under 18 U.S.C. § 922(g).3 2014) (per curiam). However, the defendant “bears a heavy burden” because

“we view the evidence in the light most favorable to the government, drawing all

inferences in the government’s favor and deferring to the jury’s assessments of

the witnesses’ credibility.” Id. (internal quotation marks omitted). “Following

this review, we will sustain the jury’s verdict if ‘ any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” Id.

(quoting Jackson v. Virginia

, 443 U.S. 307, 319 (1979)).

“When a defendant challenges the sufficiency of the evidence in a

conspiracy case, deference to the jury’s findings is especially important because a

conspiracy by its very nature is a secretive operation, and it is a rare case where

all aspects of a conspiracy can be laid bare in court with the precision of a

surgeon’s scalpel.” United States v. Santos

, 541 F.3d 63, 70 (2d Cir. 2008) (internal

quotation marks and alteration omitted). “The record must nonetheless permit a

rational jury to find: (1) the existence of the conspiracy charged; (2) that the

defendant had knowledge of the conspiracy; and (3) that the defendant

intentionally joined the conspiracy.” Id. (citations omitted).

Here, viewing the evidence in the light most favorable to the government,

we conclude the evidence was sufficient to support the conviction. Maldonado’s4 own statements to law enforcement officers show that he was systematically

buying 31 grams of cocaine every four days for about four months. He admitted

that he was purchasing the cocaine from a Dominican seller and then reselling

the drugs. Law enforcement officers found baking soda and 54.8 grams of

cocaine in Maldonado’s kitchen refrigerator. Elsewhere in his apartment, officers

located other drug trafficking tools, such as scales and glassine bags. The

quantity of cocaine involved was such that the jury could reasonably infer that

both Maldonado and his supplier knowingly joined in a conspiracy the object of

which was to sell to Maldonado’s customers. Given the evidence presented to

the jury, the argument that the evidence was insufficient to show that the

Dominican seller conspired with Maldonado is not persuasive.

Second, Maldonado argues that he was entitled to a buyer

‐ seller exception

jury instruction because evidence presented at trial could have supported the

jury’s finding of a buyer

‐ seller, as opposed to a conspiratorial, relationship. A

district court’s decision to refuse a jury instruction that was requested by one of

the parties is reviewed de novo

. United States v. Desinor

, 525 F.3d 193, 198 (2d Cir.

2008).5 “It is well

‐ established that a criminal defendant is entitled to a jury

instruction reflecting his or her theory of defense for which there is some

foundation in the proof, no matter how tenuous that defense may appear to the

trial court.” United States v. Medina

, 944 F.2d 60, 64 (2d Cir. 1991) (internal

quotation marks omitted). In Medina

, the Court explained that “[t]he rationale

for holding a buyer and a seller not to be conspirators is that in the typical buy

‐

sell scenario, which involves a casual sale of small quantities of drugs, there is no

evidence that the parties were aware of, or agreed to participate in, a larger

conspiracy.” 944 F.2d at 65. That rationale does not apply in Maldonado’s

situation because he was engaged in a systematic pattern of purchasing 31 grams

of cocaine for $1,300 from a Dominican supplier, selling it over the course of four

days, and then repeating the process. Similar to Medina

, where the wholesale

quantities of cocaine evinced that the drugs were being purchased for resale, id.

,

the Government here introduced Maldonado’s own admission that he was

buying the cocaine for resale. Therefore, the district court did not err in refusing

to give the requested instruction.

Third, Maldonado argues that the district court abandoned its gatekeeper

function related to expert testimony by failing to perform an on

‐ the

‐ record6 analysis of whether Morales was qualified as an expert. “We review the district

court’s decision to admit or exclude expert testimony for an abuse of discretion.”

United States v. Cruz

, 363 F.3d 187, 192 (2d Cir. 2004) (internal quotation marks

omitted). “A district court’s determination with respect to the admission of

expert testimony is not an abuse of discretion unless it is manifestly erroneous.”

Id. (internal quotation marks omitted).

In this case, it was not manifest error for the district court to fail to conduct

a Daubert analysis on the record. Given the routine nature of law enforcement

officers testifying as experts to educate the jury about the drug trade, it was not

an abuse of discretion to refrain from an on

‐ the

‐ record Daubert analysis, and the

district court acted within its discretion when allowing Morales to testify.

Fourth, Maldonado contends that Morales’s testimony was improper.

Morales opined that the cocaine and drug paraphernalia found in Maldonado’s

apartment were consistent with drug distribution rather than personal use. The

parties agree that this argument is evaluated under plain error review. “To

establish plain error, the defendant must establish (1) error (2) that is plain and

(3) affects substantial rights.” United States v. Villafuerte

, 502 F.3d 204, 209 (2d Cir.

2007). The appellant must also show that “the error affected his substantial7 rights—i.e., that it affected the outcome of the district court proceedings.” United

States v. Reyes

, 691 F.3d 453, 457 (2d Cir. 2012) (per curiam) (internal quotation

marks omitted).

Admission of Morales’s testimony was not in error. “This court has

repeatedly found that the operations of narcotics dealers are a proper subject for

expert testimony.” United States v. Lopez

, 547 F.3d 364, 373 (2d Cir. 2008).

“Testimony about the weight, purity, dosages, and prices of cocaine clearly

relates to knowledge beyond the ken of the average juror.” United States v. Tapia

‐

Ortiz

, 23 F.3d 738, 741 (2d Cir. 1994).

Fifth, Maldonado submits that the district court erred when it found that

he is a career criminal. We review de novo a district court’s interpretation of the

Sentencing Guidelines, and its factual findings are reviewed for clear error.

United States v. Mason

, 692 F.3d 178, 182 (2d Cir. 2012). “[Q]uestions that concern

the district court’s authority to make a factual finding about the nature of the

conviction are questions of law.” United States v. Beardsley

, 691 F.3d 252, 257 (2d

Cir. 2012) (internal quotation marks omitted).

Here, Maldonado concedes that his New York conviction for criminal sale

of a controlled substance in the second degree is a predicate offense, but he8 argues that the record does not show that he was in custody within 15 years of

the commencement of the present offense, as required by the Guidelines.

Reading the Presentence Report’s description of this state conviction in concert

with a prior federal conviction reveals that Maldonado was released from federal

custody, reentered state custody on November 8, 2001, for a parole violation on

the criminal sale of a controlled substance offense, and was then released on

January 24, 2002. The district court’s factual finding on this point was not clear

error because it is plausible in light of the entire record. Anderson v. City of

Bessemer City, N.C.

, 470 U.S. 564, 573

‐ 74 (1985). With regard to Maldonado’s

attempted burglary conviction, the Second Circuit has held that a conviction for

attempted burglary in the third degree, N.Y. Pen. L. § 140.20, is a “crime of

violence” under the sentencing guidelines. United States v. Hurrell

, 555 F.3d 122,

123

‐ 24 (2d Cir. 2009) (per curiam). We reject Maldonado’s argument to the

contrary, and we do not analyze whether his federal conviction also qualifies as a

predicate offense because the two state convictions are sufficient to support his

career offender status under Guideline § 4B1.1(a).9 For the reasons stated above, the judgment and sentence of the district

court are AFFIRMED

.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk