United States v. Ortiz

11-4860 (L)
United States v. Ortiz

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 APPELLAT E 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 NO TATION "SUMMARY ORDER" ). A PARTY
CITING TO 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 20th day of May, two thousand thirteen.

PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*

- - - - - - - - - - - - - - - - - - - - - -x

UNITED STATES OF AMERICA,
Appellee,
11-4860 (L)
-v.- 11-4931 (CON)
11-5221 (CON)
EDILBERTO BERRIO ORTIZ, AKA El Gavilan,
ALEJANDRO PALACIOS RENGIFO, AKA El Gato,
AKA Yimi, ANDERSON CHAMAPURO DOGIRAMA, AKA
El Tigre, AKA Dairon,
Defendants-Appellants,

*
The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
LUIS FERNANDO MORA PESTANA, AKA Dr.
Silver, JULIO ENRIQUE LEMOS-MORENO,
CARLITOS LNU, ALEXIS LNU, AKA Alexi, FNU
LNU, AKA El Indio, ROQUE OROBIO LOBON, AKA
Roque Orobio Tobon, AKA Mello, AKA
Tachuela,
Defendants.**

- - - - - - - - - - - - - - - - - - - - - -x

FOR APPELLEE: REBECCA MONCK RICIGLIANO (Jeffrey
A. Brown, Brent S. Wible,
Assistant United States Attorneys,
on the brief), for Preet Bharara,
United States Attorney for the
Southern District of New York, New
York, New York.

FOR DEFENDANT-APPELLANT BETH M. FARBER (Hoonpyo Lee, on
ALEJANDRO PALACIOS RENGIFO: the brief), Law Offices of Beth
Farber, New York, New York.

FOR DEFENDANT-APPELLANT MARLON G. KIRTON, Marlon G.
EDILBERTO BERRIO ORTIZ: Kirton, P.C., New York, New York.

FOR DEFENDANT-APPELLANT KAFAHNI NKRUMAH, Law Office of
ANDERSON CHAMAPURO DOGIRAMA: Kafahni Nkrumah L.L.P., New York,
New York.

Appeal from the United States District Court for the

Southern District of New York (Rakoff, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgments of the district court are AFFIRMED.

Defendants-appellants Edilberto Berrio Ortiz,

Alejandro Palacios Rengifo, and Anderson Chamapuro Dogirama,

members of the 57th Front of the Fuerzas Armadas Revolucionarias
**
The Clerk of the Court is directed to change the
caption to conform to the above.
-2-
de Colombia ("FARC"), held a U.S. citizen captive for

approximately ten months. After defendants escaped from the

FARC, they were arrested, extradited to the United States, and

charged with taking hostages and conspiring to take hostages, in

violation of 18 U.S.C. § 1203.

Following an evidentiary hearing, the district court

denied defendants' motion to present duress as an affirmative

defense at trial. Ortiz, Rengifo, and Dogirama thereafter

agreed to a bench trial on stipulated facts. They were

convicted on both counts and sentenced principally to terms of

imprisonment of 204 months, 180 months, and 120 months,

respectively. On appeal, defendants challenge the district

court's order denying their motions to present an affirmative

defense; in addition, Rengifo and Ortiz challenge their

respective sentences. We assume the parties' familiarity with

the underlying facts, the procedural history of the case, and

the issues on appeal.

We review de novo the district court's denial of a

motion to present an affirmative defense. See, e.g., United

States v. Markle, 628 F.3d 58, 62 (2d Cir. 2010). After an

independent review of the record, we conclude that the district

court, for substantially the reasons set forth in its detailed

memorandum decision, correctly concluded that defendants had
-3-
failed to make the requisite prima facie showing of the elements

of a duress defense. See United States v. Mora Pestana, 865 F.

Supp. 2d 357 (S.D.N.Y. 2011); see also United States v.

Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (elements of duress

defense).

Rengifo and Ortiz also challenge the procedural and

substantive reasonableness of their respective sentences.1 Our

reasonableness assessment applies "a particularly deferential

form of abuse-of-discretion review," United States v. Cavera,

550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc), and we conclude

these arguments fail.

First, although Ortiz claims the district court erred

by finding that he committed a felony that "was intended to

promote[] a federal crime of terrorism," U.S.S.G. § 3A1.4(a),

resulting in a sentencing enhancement, substantial evidence

supported the district court's finding. This included evidence

that Ortiz (1) knew of the FARC's role as a political and

military organization seeking to overthrow the Colombian

government; (2) was in charge of twelve other FARC soldiers and

setting the guard-duty schedule; (3) guarded the hostage; (4)

threatened to kill the hostage if he tried to escape; and (5)

knew that hostage ransoms were used to finance the FARC's
1
Dogirama does not challenge his sentence.
-4-
activities. Hence, the district court did not clearly err by

finding that Ortiz acted "for the broader purpose of furthering

terrorist activity."

Second, the district court thoroughly assessed the 18

U.S.C. § 3553(a) factors, as to both Rengifo and Ortiz

separately. The district court considered the arguments

presented by Rengifo and the government before imposing "the

most merciful sentence" it could impose for Rengifo -- 180

months' imprisonment. Likewise, the court weighed Ortiz's role

as the leader among the three co-appellants and the "horrendous

difficulties" and "heartbreaking" aspects of his situation, but

also the need to protect U.S. citizens abroad when it sentenced

him to 204 months' imprisonment. Both of these sentences fell

well below the life sentences contemplated by the Guidelines,2

were less than the 210-month sentence recommended by their

respective presentence reports, and reflected the district

court's careful consideration of the 3553(a) factors.

Moreover, although Rengifo and Ortiz contend that the

district court should have departed on the basis of duress, the

record clearly indicated that the district court, in its
2
Notwithstanding the Guidelines range of life
imprisonment applicable to both Rengifo and Ortiz, neither
defendant would have been sentenced to life in accordance with
the extradition agreement between Colombia and the United
States.
-5-
sentencing discretion, believed that the issue of duress would

be "so much more easily dealt with in terms of the overall

picture than in terms of the guidelines," i.e., as a variance

from the Guidelines range. Sent. Tr. 21:23-24 (Oct. 24, 2011).

As neither defendant has presented "clear evidence of a

substantial risk that the judge misapprehended the scope of his

departure authority," the district court's decision not to grant

a downward departure is not appealable. United States v. Clark,

128 F.3d 122, 124 (2d Cir. 1997) (citation and internal

quotation marks omitted). Hence, reviewing their arguments as a

whole, we conclude that the district court did not procedurally

err when sentencing Rengifo and Ortiz.

Finally, to the extent Ortiz and Rengifo argue that

their sentences were substantively unreasonable, those arguments

also fail. We "'set aside a district court's substantive

determination only in exceptional cases,'" United States v.

Gilliard, 671 F.3d 255, 260 (2d Cir. 2012) (quoting Cavera, 550

F.3d at 189), and we conclude that the sentences imposed on

Ortiz and Rengifo were not "shockingly high . . . or otherwise

unsupportable as a matter of law," United States v. Rigas, 583

F.3d 108, 123 (2d Cir. 2009). Therefore, we affirm the district

court's sentence on these grounds as well.

-6-
 We have considered defendants' remaining arguments and

conclude they are without merit. For the foregoing reasons, we

AFFIRM the judgments of the district court.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk

-7-