United States v. Salcedo

08-5404-cr United States v. Salcedo 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 22 nd day of February, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 ROSEMARY S. POOLER, 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 Appellee, 15 16 -v.- 08-5404-cr 17 18 WASHINGTON SALCEDO, also known as 19 Primo, 20 Defendant-Appellant. 21 - - - - - - - - - - - - - - - - - - - -X 22 23 APPEARING FOR APPELLANT: CHARLES F. WILSON, Nevins & 24 Nevins LLP, East Hartford, 25 Connecticut. 26 27 APPEARING FOR APPELLEE: JOSEPH P. FACCIPONTI (Michael A. 28 Levy, on the brief), United 1 1 States Attorney’s Office for the 2 Southern District of New York, 3 for Preet Bharara, United States 4 Attorney for the Southern 5 District of New York, New York, 6 New York. 7 8 Appeal from a judgment of the United States District 9 Court for the Southern District of New York (Batts, J.). 10 11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 12 AND DECREED that the judgment of the district court be 13 AFFIRMED. 14 15 Washington Salcedo challenges his conviction and his 16 sentence. We assume the parties’ familiarity with the 17 underlying facts, the procedural history, and the issues 18 presented for review. 19 20 [1] Salcedo argues that the district court erred by 21 failing to inform him that his guilty plea would waive his 22 right to compel the attendance of witnesses at trial. 23 Because Salcedo did not raise this issue in the district 24 court, our review is for plain error. Puckett v. United 25 States, 129 S. Ct. 1423, 1428-29 (2009). Plain error review 26 allows vacatur if the defendant proves: (1) error; (2) that 27 is “clear or obvious, rather than subject to reasonable 28 dispute”; (3) that affected substantial rights; and (4) that 29 “seriously affect[s] the fairness, integrity or public 30 reputation of judicial proceedings.” Id. at 1429 (internal 31 quotation marks omitted). In the context of a Rule 11 32 challenge, substantial rights are affected if there is “a 33 reasonable probability that, but for the error, [the 34 defendant] would not have entered the plea.” United States 35 v. Dominguez Benitez, 542 U.S. 74, 83 (2004). 36 37 Salcedo has failed to prove, inter alia, that any error 38 affected his substantial rights. The government recovered 39 800 grams of heroin from Salcedo and his home on the day of 40 his arrest. The multiple witnesses who inculpated Salcedo 41 at the Fatico hearing would likely have done the same had 42 there been a trial. Cf. United States v. Torrellas, 455 43 F.3d 96 (2d Cir. 2006); see also Dominguez Benitez, 542 U.S. 44 at 85. 45 46 [2] Salcedo next argues that the district court erred by 2 1 failing to advise him that he could be held accountable for 2 more than the one to three kilograms of heroin for which he 3 admitted responsibility. Because Salcedo did not raise this 4 issue in the district court, our review is for plain error. 5 See Puckett, 129 S. Ct. at 1428-29. 6 7 Federal Rule of Criminal Procedure 11 requires a 8 district court to ensure that a defendant seeking to plead 9 guilty knows of and understands, inter alia, “any maximum 10 possible penalty, including imprisonment, fine, and term of 11 supervised release” that may result from the guilty plea; 12 “any mandatory minimum penalty” that may be imposed; and “in 13 determining a sentence, the court’s obligation to calculate 14 the applicable sentencing-guideline range and to consider 15 that range, possible departures under the Sentencing 16 guidelines, and other sentencing factors under 18 U.S.C. 17 § 3553(a).” See Fed. R. Crim. P. 11(b)(1)(H), (I), (M). 18 Here, the district court fulfilled all of these 19 requirements. Additionally, the district court advised 20 Salcedo that the final drug quantity to be attributed to him 21 would be determined by the court before sentencing. 22 23 [3] Finally, Salcedo argues that the district court abused 24 its discretion in disallowing him from calling a federal 25 prosecutor (who was prosecuting his case) as a witness. He 26 argues that the prosecutor’s testimony would have helped him 27 prove his eligibility to be sentenced under the safety-valve 28 statute. See 18 U.S.C. § 3553(f). But Salcedo was 29 ineligible for that relief regardless of the substance of 30 the prosecutor’s would-be testimony. Accordingly, any error 31 was harmless beyond a reasonable doubt. See United States 32 v. Arrous, 320 F.3d 355, 361 (2d Cir. 2003). 33 34 Finding no merit in Salcedo’s remaining arguments, we 35 hereby AFFIRM the judgment of the district court. 36 37 38 FOR THE COURT: 39 CATHERINE O’HAGAN WOLFE, CLERK 40 41 42 43 3