14‐2378‐cr
United States v. Suarez
In the
United States Court of Appeals
For the Second Circuit
________
August Term, 2014
No. 14‐2378‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
YESID RIOS SUAREZ, AKA SEALED DEFENDANT 2, AKA EL ENANO,1
Defendant‐Appellant.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 11‐cr‐836 (KBF) ― Katherine B. Forrest, Judge.
________
Argued: April 20, 2015
Decided: June 30, 2015
________
Before: KEARSE, PARKER, AND WESLEY, Circuit Judges.
________
Defendant‐appellant Yesid Rios Suarez appeals from a
judgment of conviction entered in the United States District Court
for the Southern District of New York (Katherine B. Forrest, Judge)
for conspiracy to manufacture and import five kilograms or more of
1
The Clerk of Court is directed to amend the caption as set forth above.
No. 14‐2378‐cr
cocaine into the United States, in violation of 21 U.S.C. § 963. Suarez
was extradited by the Republic of Colombia to face the charge in the
United States on the condition that “a sentence of life imprisonment
will not be sought or imposed.” Suarez, who is 46 years old,
contends on appeal that his 648‐month (or, 54‐year) sentence violates
this condition because it is effectively a life sentence. We find that
Suarez lacks prudential standing to raise an alleged violation of an
extradition agreement unless the challenge is first raised by the
extraditing nation. Accordingly, and for additional reasons
explained in a summary order filed simultaneously with this
opinion, the judgment of conviction is AFFIRMED.
Judge KEARSE concurs in a separate opinion.
________
JOHN MERINGOLO, Meringolo Law, New York,
NY, for Defendant‐Appellant Yesid Rios Suarez.
ADAM FEE, Assistant United States Attorney
(Brian A. Jacobs, Assistant United States
Attorney, on the brief), for Preet Bharara, United
States Attorney for the Southern District of New
York, New York, NY, for Appellee.
________
BARRINGTON D. PARKER, Circuit Judge:
BACKGROUND
Since the early 1990s, Yesid Rios Suarez operated a large‐scale
drug trafficking organization out of Colombia and Venezuela. In
September 2010, while Suarez was in Venezuela, he was convicted in
absentia in Colombia of drug manufacturing and trafficking.
Approximately one year later, Suarez was extradited from
Venezuela to Colombia. In November 2011, the United States
2
No. 14‐2378‐cr
transmitted a formal request to Colombia for the arrest and
extradition of Suarez to face the charge at issue in this case –
conspiracy to manufacture and import five kilograms or more of
cocaine into the United States in violation of 21 U.S.C. § 963.
Suarez challenged the extradition in a Colombian court. In
October 2012, the Colombian Ministry of Justice issued a resolution
ordering Suarez’s extradition on the condition that the United States
government provide assurances that Suarez (1) would face
prosecution only for conduct occurring after December 17, 1997; (2)
would receive various due process protections; and (3) would not be
“subjected to forced disappearance, torture or cruel, inhuman or
degrading treatment or punishment or exile, life imprisonment or
confiscation,” JA 373. In March 2013, the United States provided
those assurances in a Diplomatic Note to the Colombian
government. Specifically, the United States promised that
“[a]lthough the maximum statutory penalty for the charge for which
extradition was approved is life imprisonment, the Government of
the United States assures the Government of Colombia that a
sentence of life imprisonment will not be sought or imposed . . . .”
Gov’t Add. 1. In May 2013, Suarez was extradited to the United
States.
In February 2014, Suarez pled guilty to the conspiracy count,
and in June 2014, he was sentenced to 648 months imprisonment and
a $1 million fine. At sentencing, the district court “acknowledge[d]
[that this] is effectively a life sentence” but ruled that it did not
violate the terms of the extradition agreement because the sentence
was a term of years, not a sentence of life imprisonment. JA 502.
This appeal followed. As relevant to this opinion, Suarez, who is
currently 46 years old, challenges his sentence on the ground that it
violates the United States government’s assurance that “a sentence
3
No. 14‐2378‐cr
of life imprisonment will not be sought or imposed” because the
sentence exceeds Suarez’s life expectancy.2
STANDARD OF REVIEW
“A district court’s interpretation of an extradition agreement .
. . involve[s] questions of law, and [is] therefore review[ed] . . . de
novo.” United States v. Baez, 349 F.3d 90, 92 (2d Cir. 2003).3
DISCUSSION
“Based on international comity, the principle of specialty
generally requires a country seeking extradition to adhere to any
limitations placed on prosecution by the surrendering country.” Id.
Although the rule of specialty is typically applied in cases where the
defendant is tried for a crime not enumerated in the applicable
extradition treaty or agreement, it also “has application in the
sentencing context.” United States v. Cuevas, 496 F.3d 256, 262 (2d
Cir. 2007). Because “the cauldron of circumstances in which
extradition agreements are born implicate the foreign relations of the
United States. . . , a district court delicately must balance its
discretionary sentencing decision with the principles of international
comity in which the rule of specialty sounds.” Baez, 349 F.3d at 93.
However, this Court has never “conclusively decided whether
a defendant has standing to challenge his sentence on the ground
that it violates the terms of the treaty or decree authorizing his
2
Suarez also appeals the application of various Sentencing Guideline enhancements,
the substantive reasonableness of his sentence and the fine imposed by the district court, and
the judgment of conviction on the ground that he was denied the right to counsel during a
critical part of plea negotiations. These arguments are addressed in the summary order filed
simultaneously with this opinion.
3
The Government’s failure to raise the issue of prudential standing before the district
court does not affect our duty to decide it. See Thompson v. Cnty. of Franklin, 15 F.3d 245, 248
(2d Cir. 1994)(“The jurisdictional nature of the standing inquiry, therefore, convinces us that
we have an independent obligation to examine [plaintiff’s] standing under arguments not
raised below[.]”).
4
No. 14‐2378‐cr
extradition,” or whether the right to object is held solely by the
extraditing nation. Cuevas, 496 F.3d at 262. Rather, we have rejected
those challenges on the merits without deciding the standing issue.
See, e.g., United States v. Fusco, 560 Fed. App’x 43, 45 n.1 (2d Cir.
2014), cert denied. 135 S. Ct. 730 (2014) (“We need not resolve whether
Fusco has prudential standing to challenge his prosecution and
sentencing on the grounds that they violate the terms of the
Extradition Treaty or the rule of specialty, because his argument
plainly fails on the merits.”); United States v. Frankel, 443 Fed. App’x.
603, 606 (2d Cir. 2011) (“We do not decide whether Frankel has
standing to assert the rule of specialty as a basis to challenge his
sentence because his argument fails on the merits.”); United States v.
Banks, 464 F.3d 184, 191 (2d Cir. 2006) (declining to “resolve”
whether “the right to enforce [an extradition] agreement belongs to
the Dominican Republic” and not to the defendant “because we find
no error in the district court’s findings or proceedings”).
“The doctrine of standing asks whether a litigant is entitled to
have a federal court resolve his grievance. This inquiry involves
‘both constitutional limitations on federal‐court jurisdiction and
prudential limits on its exercise.’” Kowalski v. Tesmer, 543 U.S. 125,
128 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Unlike
constitutional standing, which focuses on whether a litigant
sustained a cognizable injury‐in‐fact, “[t]he ‘prudential standing rule
. . . bars litigants from asserting the rights or legal interests of others
in order to obtain relief from injury to themselves.’” Rajamin v.
Deutsche Bank Nat. Trust Co., 757 F.3d 79, 86 (2d Cir. 2014) (quoting
Warth, 422 U.S. at 509). “When both limitations [potentially] present
themselves, we may assume Article III standing and address ‘the
alternative threshold question’ of whether a party has prudential
standing.” Hillside Metro Assoc., LLC v. JP Morgan Chase Bank, Nat.
5
No. 14‐2378‐cr
Ass’n, 747 F.3d 44, 48 (2d Cir. 2014) (quoting Kowalski, 543 U.S. at 129.
“In other words, we may consider third‐party prudential standing
even before Article III standing.” Id. (internal quotation marks
omitted).
Because the prudential standing rule requires that an
individual “‘assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third parties,’”
Rajamin, 757 F.3d at 86 (quoting Warth, 422 U.S. at 499), we must first
determine who has legal rights or interests under the orders and
Diplomatic Note that achieved Suarez’s extradition. Although the
United States and Colombia have had a formal extradition treaty
since 1982, extradition is commonly negotiated on a case‐by‐case
basis through diplomatic channels because of amendments to the
constitution of Colombia that expressly prohibit the extradition of
Colombian nationals except for a limited scope of offenses. See U.S.
Department of State, Third Report on International Extradition
Submitted to Congress Pursuant to Section 3203 of the Emergency
Supplemental Act, 2000, as enacted in the Military Construction
Appropriations Act, 2001, Public Law 106‐246 Related to Plan Colombia,
http://www.state.gov/s/l/16164.htm. For purposes of our analysis
here, extradition documents such as Diplomatic Notes implicate the
same international legal rights as treaties because “a violation of [an]
extradition agreement may be an affront to the surrendering
sovereign.” Baez, 349 F.3d at 92; accord Fiocconi v. Attorney General of
the United States, 462 F.2d 475, 479‐80 (2d Cir. 1972) (holding that the
rule of specialty is a general principle of international law that
applies with equal force to extraditions accomplished by treaty and
by comity).
Generally speaking, ʺabsent protest or objection by the
offended sovereign, [a defendant] has no standing to raise the
6
No. 14‐2378‐cr
violation of international law as an issue.” United States v. Reed, 639
F.2d 896, 902 (2d Cir. 1981). That is because international
agreements, including treaties, “do not create privately enforceable
rights in the absence of express language to the contrary,” Mora v.
New York, 524 F.3d 183, 201 (2d Cir. 2008), or some other indication
“that the intent of the treaty drafters was to confer rights that could
be vindicated in the manner sought by the affected individuals,” id.
at 203.
“As a matter of international law, the principle of specialty has
been viewed as a privilege of the asylum state, designed to protect
its dignity and interests, rather than a right accruing to the accused.”
Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir. 1973). “[T]he object of
the rule was to prevent the United States from violating
international obligations.” Fiocconi, 462 F.3d at 480. These concerns
apply equally whether a criminal defendant objects based on the
rule of specialty or based on the interpretation of an extradition
treaty or Diplomatic Note. Because “[t]he provisions in question are
designed to protect the sovereignty of states, . . . it is plainly the
offended states which must in the first instance determine whether a
violation of sovereignty occurred, or requires redress.” United States
ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir. 1975).
Any individual right that Suarez may have under the terms of
his extradition is “only derivative through the state[].” Id. (internal
quotation marks omitted). Thus, Suarez would only have prudential
standing to raise the claim that his sentence violated the terms of his
extradition if the Government of Colombia first makes an official
protest. See, e.g., United States v. Alvarez‐Machain, 504 U.S. 655, 659
(1992) (“[L]etters from the Mexican Government to the United States
Government served as an official protest of the Treaty violation.”);
Gengler, 510 F.3d at 67 n. 8 (“[T]o support this claim[,] Toscanino
7
No. 14‐2378‐cr
would have to prove that the Uruguayan government registered an
official protest with the United States Department of State.”). It may
be prudent, as a matter of general policy, for the United States
Attorney’s Office to ensure that the State Department is kept
apprised when extradited defendants plead guilty, proceed to trial,
or are sentenced.
CONCLUSION
For these reasons, and for the reasons explained in the
simultaneously filed summary order, we AFFIRM the judgment of
the district court.
8
14-2378
United States
v. Suarez
1 KEARSE, Circuit Judge, concurring:
2 I concur in the judgment, on the ground that the diplomatic agreement that led to the
3 extradition of defendant Yesid Rios Suarez to the United States from Colombia should be read in
4 accordance with the language to which the United States and Colombia agreed.
5 "Based on international comity, the principle of speciality [sic] generally requires a
6 country seeking extradition to adhere to any limitations placed on prosecution by the surrendering
7 country." United States v. Baez, 349 F.3d 90, 92 (2d Cir. 2003). In Baez, we considered a challenge
8 to the sentence of life imprisonment imposed on a defendant who had been extradited to the United
9 States from Colombia pursuant to an agreement recorded in a diplomatic note in which the United
10 States agreed, inter alia, that it would not seek a sentence of life imprisonment and that if the United
11 States court were "'nevertheless [to] impose a sentence of life imprisonment,'" the United States's
12 "'executive authority will take appropriate action to formally request that the court commute such
13 sentence to a term of years.'" Id. (quoting Diplomatic Note No. 1206 (emphasis mine)). Following
14 the defendant's conviction, the district court imposed a sentence of life imprisonment. Thereafter,
15 "[a]s contemplated by Diplomatic Note No. 1206, the United States, through the U.S. Attorney for the
16 Southern District of New York, requested that the District Court sentence [the defendant] to a term
17 of years." 349 F.3d at 92-93. We held that the government thereby "fulfilled the commitment it made
18 in Diplomatic Note No. 1206." Id. at 93. Accord United States v. Riascos, 537 F. App'x 898, 900-01
19 (11th Cir. 2013); United States v. Corona-Verbera, 509 F.3d 1105, 1121 (9th Cir. 2007), cert. denied,
20 555 U.S. 865 (2008).
1 In United States v. Lopez-Imitalo, 305 F. App'x 818 (2d Cir. 2009), we considered a
2 challenge to a 40-year prison term imposed on a 58-year-old defendant (see the defendant's brief on
3 appeal, 2007 WL 6370252), who had been extradited to the United States from Colombia pursuant
4 to an agreement in which, as in the agreement in Baez, the United States promised it would not seek
5 a sentence of life imprisonment. We rejected the defendant's "argument that the Government breached
6 the agreement by seeking a sentence of 60 years, which he assert[ed wa]s the functional equivalent
7 of life imprisonment"; and we stated that there was no violation of the extradition agreement "[e]ven
8 if the district court's sentence of 40 years were deemed to be a sentence of 'life imprisonment.'" 305
9 F. App'x at 819. We stated that "[o]ur decision in . . . Baez . . . compels the conclusion that the rule
10 of specialty [sic] was not violated . . . ." Id.
11 Had the respective governments intended the Diplomatic Note to be an
12 assurance that the U.S. government would not request a determinate sentence
13 exceeding [the defendant's] expected lifespan, they could have drafted the note
14 to say that.
15 Id. They did not do so, either in that case or here.
2