United States v. Atehortua
Opinion of the Court
SUMMARY ORDER
Defendants-appellants Robert Atehortua and William DeJesus Flores-Diaz pleaded guilty to one count of conspiracy to possess and distribute over one kilogram of a controlled substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 812, 841, 846. Based upon their offense of conviction and past criminal histories, defendants faced a statutory maximum sentence of life imprisonment and a U.S. Sentencing Guidelines (“U.S.S.G.”)-recommended range of 87 to 108 months.
It is undisputed that both defendants, in proffer sessions with the Government, admitted that they agreed to provide $10,000 “of their own money” to pay the drug courier for the transaction giving rise to the charged offense; in addition, it is undisputed that both defendants told the Government that they had wired $1000 to the drug courier in advance of a drug transaction that took place two months before the charged offense. Flores-Diaz App. 104-05. We further note that, at Flores-Diaz’s sentencing hearing, his counsel — far from challenging the facts proffered by the Government or found by the District Court during the earlier sentencing of Flores-Diaz’s co-defendant— conceded that defendants had “fronted” the money for a drug transaction. Id. at 143. Accordingly, in light of the record before us, we conclude that Flores-Diaz’s challenge to the factual findings of the District Court is without merit.
We also reject defendants’ challenge to the District Court’s denial of the section 3B1.2 mitigating role adjustment. As we have previously observed:
A defendant who claims minor participation must establish by a preponderance of the evidence that he or she is entitled to a reduction due to his or her reduced level of culpability. A district court’s finding as to a defendant’s role in a criminal activity is a factual determination that will not be overturned unless clearly erroneous.
United States v. Soto, 959 F.2d 1181, 1187 (2d Cir. 1992) (citation and internal quotation marks omitted); accord United States v. Gomez, 31 F.3d 28, 31 (1994). In light of the record evidence described above, it was not clearly erroneous for the District Court to conclude that defendants failed to establish that their conduct was “minor or minimal as compared to the average participant in ... a [similar] crime.” United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001) (internal quotation marks omitted); see also United States v. Pitre, 960 F.2d 1112, 1127 (2d Cir. 1992) (upholding the district court’s denial of a section 3B1.2 downward adjustment based on record evidence that defendant “acted as a look-out during the instant transaction and was present during at least one prior narcotics transaction”).
Finally, we conclude that the sentences imposed on defendants by the District Court were not unreasonable. Flores-Diaz’s claim that the District Court failed to engage in adequate “judicial investigation and consideration of [his] individualized characteristics” is belied by the sentencing judge’s (1) acknowledgment that he had read and reviewed the presentence report, as well as the submissions offered by the Government and Flores-Diaz’s counsel; (2) inquiry into whether the parties had any objections to the presentence report; and (3) explicit statement that he was adopting the undisputed “factual recitation in the presentence investigation report.” Cf. United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006) (“[W]e entertain a strong presumption that the sen
Atehortua challenges the District Court’s determination, pursuant to U.S.S.G. § 3B1.3(a)(l)(A), that his criminal activity involved transportation of over three kilograms of heroin — the amount found on the person of the drug courier. He contends that, because he did not “personally transport any drugs,” Atehortua Br. 16, he should have been sentenced pursuant to U.S.S.G. § 3B1.3(a)(l)(B), which provides for a defendant’s base offense level to be calculated with respect to the drug quantity he could have reasonably foreseen.
Having considered all of defendants’ arguments on appeal and found them to be without merit, we hereby AFFIRM the judgment of the District Court.
. After considering the factors set forth in 18 U.S.C. § 3553(f) (limitation on applicability of statutory minima in certain cases), the District Court determined that the 10-year mandatory minimum sentence associated with defendants' offense, see 21 U.S.C. § 841(b)(1)(A), did not apply to their case.
. Atehortua fixes this quantity at 100 grams— "the estimated [amount] that could be purchased with $10,000.” Atehortua Br. 18.
Reference
- Full Case Name
- UNITED STATES v. Robert ATEHORTUA, William DeJesus Flores-Diaz
- Cited By
- 1 case
- Status
- Published