14‐2378 United States of America v. Yesid Rios Suarez, AKA El Enano, Sealed Defendant 2

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.

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 30th day of June, two thousand fifteen.

PRESENT: AMALYA L. KEARSE, BARRINGTON D. PARKER, RICHARD C. WESLEY, Circuit Judges. ______________________

UNITED STATES OF AMERICA,

Appellee,

‐v.‐ No. 14‐2378

YESID RIOS SUAREZ, AKA SEALED DEFENDANT 2, AKA EL ENANO,

Defendant‐Appellant. ______________________

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FOR APPELLANT: JOHN MERINGOLO, Meringolo Law, New York, NY.

FOR APPELLEE: ADAM FEE, Assistant United States Attorney (Brian A. Jacobs, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

Appeal from the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED. Opinions on

this appeal are being filed concurrently with this summary order.

Yesid Rios Suarez appeals from a judgment of conviction entered on June

30, 2014, in the United States District Court for the Southern District of New York

(Forrest, J.), following Suarez’s guilty plea. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues for review.

We review the district court’s interpretation of the Sentencing Guidelines

de novo, see United States v. Adler,

(2d Cir. 1995) (per curiam), and

review the district court’s findings of fact for clear error, see United States v.

Mulder,

(2d Cir. 2001).

Suarez advances several arguments regarding the district court’s

application of various enhancements under the Sentencing Guidelines. Suarez

2 argues that the district court erred by applying a four‐point enhancement

pursuant to U.S.S.G. § 3B1.1(a) for being “an organizer or leader of criminal

activity that involved five or more participants or was otherwise extensive.” The

district court’s findings were not clearly erroneous. The evidence at the Fatico

hearing established that Suarez was one of the top two leaders of the conspiracy,

and that he supervised members of the conspiracy. Suarez contends that the

district court should not have applied a two‐point enhancement under U.S.S.G.

§ 2D1.1(b)(14)(E) for committing the offense “as part of a pattern of criminal

conduct engaged in as a livelihood.” Judge Forrest’s findings were based on the

testimony of Yon Pelayo Garzon‐Garzon (“Garzon”) that he recalled counting

millions of dollars in cash carried by returning planes and Suarez’s own

admissions to the Probation Office and were not clearly erroneous. Suarez

claims that Judge Forrest erred by applying a two‐point enhancement under

U.S.S.G. § 2D1.1(b)(1) for possessing a firearm during the offense because the

testimony did not show that the weapon was possessed as part of the conspiracy.

An independent review of the record reveals nothing that would support an

inference that it was “clearly improbable” that Suarez’s possession of a weapon

was unconnected with his role in the conspiracy, U.S.S.G. § 2D1.1(b)(1), cmt. 11A.

3 Suarez argues that the district court erred when it applied a two‐point

enhancement under U.S.S.G. § 2D1.1(b)(3) for use of a non‐commercial aircraft in

the importation of a controlled substance. However, the testimony of Garzon

and Luis Ramirez‐Pajon shows that private aircraft were “used to import or

export the controlled substance,” U.S.S.G. § 2D1.1(b)(3), and the enhancement

was appropriate. Suarez contends that the district court erred by applying a

two‐point enhancement for the direction of the use of violence pursuant to

U.S.S.G. § 2D1.1(b)(2) because Garzon’s testimony, which implicated Suarez in

several murders, was implausible and inconsistent. The credibility

determinations of the district court during a hearing are entitled to “strong

deference,” United States v. John Doe # 1,

(2d Cir. 2001), and “the

proper place for a challenge to a witness’s credibility is in cross‐examination and

in subsequent argument to the [fact‐finder], not in an appellate brief,” United

States v. Roman,

(2d Cir. 1989) (internal quotation marks omitted).

Finally, Suarez contends that the district court erred when it declined to order

that his sentence run concurrently with the 100‐month sentence imposed in

connection with his conviction in Colombia. Judge Forrest acted within her

4 discretion when she declined to find that the Colombian conviction was based on

“relevant conduct.”

Suarez contends that his 648‐month sentence was substantively

unreasonable. Suarez was a leader of an international drug trafficking

organization that operated for nearly twenty years and generated millions of

dollars in revenue. We do not find that “the sentence imposed was shockingly

high, . . . or otherwise unsupportable as a matter of law,” United States v. Rigas,

(2d Cir. 2009).

Suarez argues that the fine assessed by the district court was

unconstitutionally excessive because he lacked the ability to pay. We review this

contention for plain error, see United States v. Pfaff,

(2d Cir.

2010), since Suarez did not raise it in the district court. Given Suarez’s failure to

carry his burden to prove his inability to pay a $1 million fine, it was within the

district court’s discretion to impose a the fine. See United States v. Sasso,

(2d Cir. 1995).

We decline to rule on Suarez’s claim that he received ineffective assistance

of counsel. See Massaro v. United States,

(2003); see also United

States v. Khedr,

(2d Cir. 2003). We see no reason to deprive a

5 district court of the opportunity to assess the merits of Suarez’s ineffective

assistance claim in the first instance, if such a claim were to be brought on

collateral attack under

. See Massaro,

.

We have considered Suarez’s remaining arguments and find them to be

without merit. For the reasons stated above and in the accompanying opinion,

the judgment of the district court is AFFIRMED, and Suarez’s claim of

ineffective assistance is DISMISSED without prejudice to his raising such a

claim in a motion under Section 2255.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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