United States v. Mercede (Garcia)

U.S. Court of Appeals for the Second Circuit
United States v. Mercede (Garcia), 354 F. App'x 477 (2d Cir. 2009)

United States v. Mercede (Garcia)

Opinion

SUMMARY ORDER

Defendant-appellant Jose Mercede appeals from an order of the district court entered September 24, 2008, denying his motion for a sentencing reduction. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.

Mercede contends that the district court’s finding that he was responsible for more than 4.5 kilograms of crack cocaine was not supported by the evidence and that the district court did not sufficiently explain why it was denying Mercede’s motion. 1 His arguments are without merit.

First, the evidence was more than sufficient to allow the district court to find Mercede’s offense involved more than 4.5 kilograms of crack cocaine. The govern *479 ment presented, inter alia, Mercede’s own statement in a proffer session that the conspiracy sold, on average, 70 to 80 grams of crack cocaine per week, multiplying the lower estimate, 70 grams, by 100 weeks (less than the total length of the charged conspiracy), yields a total of 7 kilograms of crack cocaine sold by the conspiracy, well above the 4.5 kilogram threshold at issue here. Although on appeal Mercede argues that the crack cocaine amounts the government offered are “either vague, or undefined, and clearly not placed in the context of a time frame,” Mercede did not make this argument to the district court, and we see no error in the district court’s conclusion that Mer-cede was responsible for at least 4.5 kilograms of crack cocaine, given his own quite specific estimate of the amount of crack cocaine the conspiracy sold per week and the duration of that conspiracy.

Second, the district court was sufficiently specific in its explanation of why it was denying Mercede’s motion. The district court said:

The motion is denied. I find after a hearing on the issue that the quantity of crack cocaine involved in the offense far exceeded 4.5 kilograms. Accordingly, the application of the retroactive guideline to the defendant’s case does not produce a lower sentencing range. He is therefore ineligible for a reduction of sentence.

From this explanation, it is clear that the district court credited the evidence the government submitted, including, as noted above, Mercede’s own statements in his proffer, and on that basis found that Mercede was ineligible for a sentence reduction. In light of the hearing the district court held and the parties’ submissions on the issue of whether Mercede was eligible for resentencing, the district court’s explanation of its decision was sufficient, and nothing more was required. Cf. United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006) (noting that “[a] court’s reasoning can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did” (internal quotation marks omitted)).

For the foregoing reasons, the judgment of the district court is AFFIRMED.

1

. At the time of Mercede’s original sentencing, the district court accepted the PSR’s determination that Mercede’s base offense level was 38, which corresponded to a finding that Mercede was responsible for 1.5 kilograms or more of crack cocaine. The PSR stated that a base offense level of 38 was appropriate because Mercede was responsible for at least 26 kilograms of cocaine, a finding that the district court did not explicitly adopt at the sentencing, but to which Mercede did not object. When considering Mercede’s motion to reduce his sentence, the court found a potential "fairness problem" with simply accepting that Mercede had been found responsible at his sentencing for at least 26 kilograms of cocaine as set forth in the PSR because the district court thought that, under the then-mandatory Guidelines scheme, a defendant who "believed in his heart that the actual facts were [that he was responsible for] an amount of crack cocaine between 1.5 kilos and 4.5 kilos ... would have little or no incentive to litigate that issue, and ... would have a disincentive to litigate that issue.” To remedy the problem that it identified, the district court held a hearing to determine the amount of crack cocaine in excess of 1.5 kilograms for which Mercede was responsible, and ultimately found that "the quantity of crack cocaine involved in the offense far ex *479 ceeded 4.5 kilograms.” Because Mercede raised no objection to this procedure, either in the district court or on appeal, we do not review its use.

Reference

Full Case Name
UNITED STATES of America, Appellee, v. Julio A. ORTIZ, Also Known as “Junior,” Jorge Badilla, Also Known as “Eagle,” Defendants, Renaldo Garcia, Also Known as “Shorty,” Jose Mercede, Also Known as “Daddy-O,” Defendants-Appellants
Cited By
1 case
Status
Unpublished