United States v. Ramos-Nunez

14-4368 United States v. Ramos-Nunez 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 5th day of February, two thousand sixteen. 5 6 PRESENT: DENNIS JACOBS, 7 RICHARD C. WESLEY, 8 DEBRA ANN LIVINGSTON, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 14-4368 16 17 HERRY RAMOS-NUNEZ, 18 Defendant-Appellant. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLEE: EUN YOUNG CHOI (Michael A. Levy on 22 the brief), Assistant United 23 States Attorneys, for Preet 24 Bharara, United States Attorney 25 for the Southern District of New 26 York. 27 1 1 FOR APPELLANT: BRIAN E. SPEARS, Brian Spears LLC, 2 Southport, Connecticut. 3 4 Appeal from a judgment of the United States District 5 Court for the Southern District of New York (Broderick, J.). 6 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 8 AND DECREED that the judgment of the district court be 9 AFFIRMED. 10 11 Herry Ramos-Nunez appeals from the judgment of 12 conviction and sentence of the United States District Court 13 for the Southern District of New York (Broderick, J.). We 14 assume the parties’ familiarity with the underlying facts, 15 the procedural history, and the issues presented for review. 16 17 1. Ramos-Nunez argues that the district court failed 18 to fully investigate and remedy purported premature 19 deliberations by two jurors who were overheard discussing 20 the case in the bathroom during trial. “The handling of 21 allegations of juror misconduct is entrusted to the sound 22 discretion of the trial court.” United States v. Thai, 29 23 F.3d 785, 803 (2d Cir. 1994). Where, as here, a defendant 24 agrees to a proposed procedure for dealing with a juror 25 issue, he waives any subsequent challenge and appellate 26 review is barred. See United States v. Peterson, 385 F.3d 27 127, 138-39 (2d Cir. 2004) (where judge “met with defense 28 counsel to discuss how he should proceed” on issue of juror 29 misconduct, and “[n]either defense counsel objected to his 30 proceeding outside the presence of the defendants,” 31 defendants had “waived their right” to claim error on 32 appeal, and permitting claim would “only encourage 33 sandbagging” (internal quotation marks omitted)); United 34 States v. Alvarez, 601 F. App’x 16, 19 (2d Cir. 2015) (where 35 defendant “contemporaneously consented to the district 36 court’s approach” of giving a curative instruction to 37 address potential jury bias, and “contributed to the 38 crafting of that instruction,” defendant “waived” argument 39 that jurors should have been questioned and “cannot raise it 40 on appeal”). 41 42 Ramos-Nunez was invited to propose measures to deal 43 with the overheard statements, and was alerted to the 44 possibility that the district court might speak to the 45 jurors with the parties’ approval, a course of action he now 46 contends should have been done. Instead, his counsel 47 suggested that the district court give a “firm instruction,” 2 1 worked with the Government to craft such an instruction, 2 which was given, and never objected to the district court’s 3 approach or requested that the district court conduct any 4 further investigation or take any further action. Under 5 these circumstances, any challenge to the handling of the 6 two jurors is waived and cannot be raised on appeal. 7 8 2. Ramos-Nunez challenges the ruling that he was not 9 eligible under 18 U.S.C. § 3553(f) for “safety-valve” relief 10 from the minimum prison sentence statutorily mandated for 11 his heroin conspiracy conviction. See 21 U.S.C. 12 § 841(b)(1)(B)(i). Of the five requirements for 13 safety-valve relief, the one here at issue required Ramos- 14 Nunez, by the time of sentencing, to have disclosed to the 15 government “all information and evidence [he had] concerning 16 the offense [of conviction] or offenses that were part of 17 the same course of conduct or of a common scheme or plan.” 18 18 U.S.C. § 3553(f)(5). Ramos-Nunez bore the burden of 19 proving by a preponderance that he had satisfied this 20 requirement. See United States v. Jimenez, 451 F.3d 97, 21 102–03 (2d Cir. 2006). We review the district court's 22 factual finding that he did not do so only for clear error, 23 see United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 24 1997), which is not present here. 25 26 In his proffer, Ramos-Nunez attempted to minimize his 27 involvement in the conspiracy, claiming that he had no 28 experience in the drug trade and that all of his statements 29 to the confidential informant were scripted by his 30 coconspirator. The facts at trial painted a different 31 picture. Ramos-Nunez indisputably offered to sell a 32 kilogram of “black Mexican heroin,” an offer -– irrespective 33 of whether any such heroin existed –- that Ramos-Nunez never 34 claimed had been scripted for him.1 Moreover, the district 35 court identified other facts showing that Ramos-Nunez was 36 more deeply involved in the conspiracy than he had been 37 willing to admit: Ramos-Nunez’s claim to having delivered 38 400 grams of heroin in the Bronx; his discussion of the best 39 places in New York City to deal drugs; and his description 1 Understood properly, the district court’s finding that this offer took place was not at all factually divergent from its later finding that there was insufficient evidence to prove that the black Mexican heroin actually existed, even if, given the distinct burdens present in each question, such a divergence were relevant. 3 1 of how his sources smuggled heroin into the United States 2 using porcelain jars. Faced with these discrepancies, which 3 are adequately supported by the record, the district court 4 did not err in denying application of safety-valve relief to 5 Ramos-Nunez. 6 7 3. Ramos-Nunez argues that the district court erred 8 in determining the relevant drug quantity for purposes of 9 calculating his Sentencing Guidelines offense level. A 10 district court is permitted to find a greater drug quantity 11 at sentencing than the jury found at trial. See, e.g., 12 United States v. Vaughn, 430 F.3d 518, 526-27 (2d Cir. 2005) 13 (“[T]here is no logical inconsistency in determining that a 14 preponderance of the evidence supports a finding about which 15 there remains a reasonable doubt.”). 16 17 Ramos-Nunez argues that the district court “failed to 18 consider” the jury’s drug quantity finding. However, the 19 judge observed several times at sentencing that the jury 20 found Ramos-Nunez guilty of conspiracy to distribute 100 21 grams or more. But the district court used its own analysis 22 and applied the less burdensome preponderance standard to 23 conclude that the evidence at trial established that, during 24 a meeting at a diner, Ramos-Nunez and a coconspirator agreed 25 to sell a total of 1.7 kilograms of heroin in two 26 transactions. Of the 1.7 kilograms of heroin they planned 27 to sell, 700 grams were physically seized when they 28 attempted to sell them. Accordingly, the district court did 29 not err in attributing more than a kilogram of heroin to 30 Ramos-Nunez for Guidelines purposes. 31 32 For the foregoing reasons, and finding no merit in 33 Ramos-Nunez’s other arguments, we hereby AFFIRM the judgment 34 of the district court. 35 36 FOR THE COURT: 37 CATHERINE O’HAGAN WOLFE, CLERK 38 4