United States v. Acosta and Melo

09-0980-cr; 09-0983-cr United States v. Acosta and Melo 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 1 st day of March, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 ROBERT D. SACK, 9 PETER W. HALL 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 Appellee, 15 16 -v.- 09-0980-cr; 17 09-0983-cr 18 RAMON ACOSTA, also known as Juicy, 19 also known as Arsenio Rodriguez, also 20 known as Fnu Lnu, MANUEL MELO, also 21 known as El Gago, also known as Gago, 22 23 Defendants-Appellants. 24 - - - - - - - - - - - - - - - - - - - -X 25 26 APPEARING FOR APPELLANTS: MITCHELL J. DINNERSTEIN, Law 27 Office of Mitchell J. 28 Dinnerstein, New York, NY for 29 Defendant-Appellant Ramon 30 Acosta; THOMAS H. NOOTER, 31 Freeman Nooter & Ginsberg, New 32 York, NY, for Defendant- 33 Appellant Manuel Melo. 34 1 1 APPEARING FOR APPELLEE: TELEMACHUS P. KASULIS, (Michael 2 Q. English, Katherine Polk 3 Failla on the brief) for Preet 4 Bharara, United States Attorney 5 for the Southern District of New 6 York, New York, NY. 7 8 9 Appeal from judgments of the United States District 10 Court for the Southern District of New York (Marrero, J.). 11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 12 AND DECREED that the judgments of the district court be 13 AFFIRMED. 14 Co-defendants Ramon Acosta and Manuel Melo each appeal 15 from judgments of conviction entered on March 9, 2009, in 16 the United States District Court for the Southern District 17 of New York (Marrero, J.) following an 11-day jury trial. 18 Both were charged with various offenses related to their 19 involvement in a robbery gang operating between 2003 and 20 2006. 21 Melo was convicted of (among other things) an attempted 22 Hobbs Act robbery on June 23, 2004, and a subsidiary firearm 23 offense. See 18 U.S.C. § 1951, 1952; 18 U.S.C. § 24 924(c)(1)(A). He argues--as he did in the district court 25 under Rule 29--that the record supports no inference that he 26 attempted to commit a crime of violence or threatened 27 violence, a finding required by the statute. See 18 U.S.C. 2 1 § 1951, 1952; Fed. R. Civ. P. 29. “A court may overturn a 2 conviction on this basis only if, after viewing the evidence 3 in the light most favorable to the Government and drawing 4 all reasonable inferences in its favor, it finds that no 5 rational trier of fact could have concluded that the 6 Government met its burden of proof.” United States v. 7 Triumph Capital Group, Inc., 544 F.3d 149, 158 (2d Cir. 8 2008) (internal citations and quotation marks omitted); see 9 also United States v. Florez, 447 F.3d 145, 154 (2d Cir. 10 2006) (“We review de novo a district court’s denial of a 11 Rule 29 motion, applying the same standard of sufficiency as 12 the district court.”). 13 Melo cannot satisfy this burden here. Melo points to 14 testimony suggesting that the planners of the attempted 15 robbery thought it would target a willing victim, who was in 16 reality their accomplice; therefore, he argues, the crime 17 was unlikely to involve violence. However, the robbery crew 18 clearly accounted for the strong possibility that the 19 willing-victim accomplice might be accompanied; that the 20 public scene of the crime (a supermarket parking lot in 21 Manhattan) would have bystanders who might intervene and 22 need to be overcome; or that the willing-victim accomplice 23 would change his mind. The ringleader brought four men 24 (including Melo) and several weapons, including a loaded 3 1 gun, to commit the robbery. As the district court observed 2 when denying the Rule 29 motion, “if the robbery was 3 supposed to be of a willing victim then you wonder why did 4 you need guns and knives. They could have gone in there and 5 simply said, ‘hand over the stuff.’” One inference 6 available to the jury was that Melo attempted to commit a 7 crime of actual or threatened violence. Cf. United States 8 v. Skowronski, 968 F.2d 242, 247 (2d Cir. 1992), overruled 9 by statute on other grounds as stated in United States v. 10 Amato, 46 F.3d 1255, 1261 (2d Cir. 1995). Melo’s attempted 11 Hobbs Act robbery conviction and the associated firearm 12 conviction (which he only challenges as subsidiary to the 13 Hobbs Act conviction) are affirmed. 14 Acosta was convicted of (among other things) conspiracy 15 to commit armed robberies under the Hobbs Act. See 18 16 U.S.C. § 1951. The conspiracy charge in the indictment 17 alleged as overt acts that Acosta committed four robberies 18 or attempted robberies in furtherance of the conspiracy. 19 The district court found that the government proved beyond a 20 reasonable doubt that Acosta conspired to commit each of the 21 four robberies, and calculated Acosta’s Sentencing Guideline 22 range accordingly. Acosta argues that the district court’s 23 finding was procedurally unreasonable because it did not 24 take into account the jury’s not guilty verdict as to the 4 1 August 2003 robbery, see United States v. Vaughn, 430 F.3d 2 518, 527 (2d Cir. 2005) (“[D]istrict courts should consider 3 the jury’s acquittal when assessing the weight and quality 4 of the evidence presented by the prosecution and determining 5 a reasonable sentence.”), and did not take into account the 6 absence of a jury verdicts on the other robberies. 7 These arguments are unavailing. The district court 8 acknowledged that the jury acquitted Acosta of one of the 9 underlying robberies before finding the relevant facts. A 10 district court can determine for sentencing purposes that a 11 defendant conspired to commit an offense even after the jury 12 has acquitted on the substantive offense. See United States 13 v. Robles, 562 F.3d 451, 457 (2d Cir. 2009). We review the 14 district court’s factual findings for clear error. See 15 United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir. 2005). 16 Under this standard, there was sufficient evidence to 17 support the district court’s finding. 18 Finding no merit in either Acosta or Melo’s remaining 19 arguments, we hereby AFFIRM the judgments of the district 20 court. 21 FOR THE COURT: 22 CATHERINE O’HAGAN WOLFE, CLERK 23 24 25 26 5