22-2983 United States v. Cedano

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 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 21st day of December, two thousand twenty-three.

PRESENT:

GUIDO CALABRESI, RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges. ______________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-2983

BROWNSWELL CEDANO, a.k.a. “J,”

Defendant-Appellant. ∗ ______________________________________ ∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Defendant-Appellant: JEREMIAH DONOVAN, Old Saybrook, CT.

For Appellee: NATHANAEL T. BURRIS (Joseph R. Perella, Gregory L. Waples, on the brief), Assistant United States Attorneys, for Nikolas P. Kerest, United States Attorney for the District of Vermont, Burlington, VT.

Appeal from a judgment of the United States District Court for the District

of Vermont (Geoffrey W. Crawford, Chief Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Brownswell Cedano appeals from a judgment following his guilty plea to

knowingly possessing with intent to distribute cocaine base, in violation of

(a) and 841(b)(1)(C), for which he received a sentence of eighty-four

months’ imprisonment, to be followed by three years’ supervised release. On

appeal, Cedano argues that the district court made two errors in calculating his

sentencing range under the advisory Sentencing Guidelines. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

2 I. Drug Quantity

Cedano argues that the district court erred in calculating the quantity of

narcotics attributable to him as relevant conduct under the Guidelines. After

reviewing the presentence investigation report (“PSR”) prepared by the Probation

Office and conducting a sentencing hearing at which two coconspirators testified,

the district court concluded that Cedano was responsible for the distribution of

various quantities of cocaine base, cocaine powder, heroin, and fentanyl, which

resulted in a base offense level of 30. On appeal, Cedano primarily asserts that the

district court should not have considered certain statements by his coconspirators

and associates in determining drug weight because such statements were

unreliable. We disagree.

We review a district court’s factual findings as to the quantity of narcotics

involved in an offense for clear error. See United States v. Richards,

(2d Cir. 2002). In applying this “extremely deferential standard of review,” our

role is “not to decide disputed factual issues de novo or to reverse simply if we

would have decided the case differently, but rather to determine whether the

district court’s account of the evidence is plausible in light of the record viewed in

its entirety.” United States v. Rizzo,

(2d Cir. 2003). In cases “where

3 the quantity [of drugs] seized does not reflect the true scale of the offense,” the

district court’s estimation of the amount of drugs involved need only be

established by “a preponderance of the evidence.” United States v. Jones,

(2d Cir. 2008); see also United States v. McLean,

(2d Cir.

2002). “[I]f the evidence – direct or circumstantial – supports a district court’s

preponderance determination as to drug quantity, we must sustain that finding.”

Jones,

.

Here, the district court carefully considered the grand jury testimony and

witness statements to law enforcement detailed in the PSR, as well as live

testimony offered at the sentencing hearing, and calculated the applicable drug

weight only from evidence that it found to be credible. After scrupulously

reviewing the PSR and holding a lengthy hearing, the district court rejected Megan

Blake’s estimates as to drug quantity in their entirety, finding her statements to be

“highly improbable” and “inconsistent with everything else that [the court]

kn[e]w about this case.” App’x at 175. The district court then concluded that the

remaining witnesses’ estimates of drug weight were credible and reasonable in

light of other evidence in the record, which included several exhibits – such as

photographs, cellphone records, and text messages – presented by the government

4 in the course of the hearing. And, contrary to Cedano’s contention, the witness

statements contained in the PSR – including those regarding the amount of cocaine

base that Cedano passed to Jasmine Wendell while in a patrol car – did not

materially contradict testimony given before the grand jury or at the hearing;

instead, these accounts generally corroborated one another. We therefore have no

reason to second-guess the district court’s careful assessment of the evidence or its

conclusion as to the aggregate drug weight attributable to Cedano. See United

States v. Zagari,

(2d Cir. 1997) (“The sentencing court is entitled

to broad discretion in resolving disputed factual issues, including an assessment

of the credibility of witnesses.”).

If anything, the drug quantities set forth in the PSR and adopted by the

district court understated the drug quantities in Cedano’s favor. As an initial

matter, the district court applied a one-to-one ratio of crack to powder cocaine

when calculating the total converted drug weight attributable to Cedano. This

downward variance led to a significant reduction in the applicable Guidelines

range, from 151–188 months’ imprisonment to 84–105 months’ imprisonment. The

district court then sentenced Cedano to 84 months’ imprisonment, at the very

bottom of the range.

5 The district court also declined to ascribe any drug quantities to certain

conduct, such as several purported trips that Cedano made to Stephen Smith’s

house to sell drugs and the trafficking that Heidi Hutchins did on Cedano’s behalf.

Moreover, the drug quantities set forth in the PSR reflected low-end estimates of

the amounts that Rashane Wedderburn and Alicia Parenteau claimed were

attributable to Cedano. 1 Nor is there any support for Cedano’s suggestion that the

PSR may have “double counted” drugs. Cedano Br. at 18. Indeed, each witness

claimed to have been involved with Cedano during a distinct timeframe:

Wedderburn from approximately August to November 2020, Parenteau from July

to October 2019, and Seanna Kelley from September 2019 to February 2020. And

to the extent that Parenteau’s and Kelley’s involvement briefly overlapped, there

was no risk of double counting because Parenteau’s statements related to cocaine

base, while Kelley’s statements related to heroin.

1Cedano argues that Wedderburn’s testimony was too vague to allow the district court to reasonably estimate any drug quantities properly attributable to him, that the amount of cocaine base stemming from Parenteau’s statements was overstated by one ounce, and that the district court should not have included the full weight of drugs seized during the November 18, 2020 search of Smith’s residence in its calculation. But even if we were to accept all of these contentions, we would conclude that the inclusion of these drug weights was harmless because Cedano’s sentencing range would have been the same absent these challenged amounts. See United States v. Cimino,

, 29 n.3 (2d Cir. 2016); United States v. Colabatistto,

, 42 (2d Cir. 2019). 6 For all these reasons, we cannot say that the district court clearly erred in

determining the quantity of drugs properly attributable to Cedano.

II. Enhancement for Use of Violence

Cedano argues that the district court clearly erred in applying a two-level

upward adjustment for his role in the assault of Hutchins. Specifically, Cedano

asserts that the evidence was insufficient to establish that he “used violence, made

a credible threat to use violence, or directed the use of violence” in connection with

his offense of conviction. U.S.S.G. § 2D1.1(b)(2). Again, we disagree.

We review for clear error a district court’s factual findings as to whether a

defendant’s conduct gives rise to the use-of-violence enhancement under U.S.S.G.

§ 2D1.1(b)(2). See United States v. Kirk Tang Yuk,

, 82–83 (2d Cir. 2018).

We will uphold the district court’s finding unless “we are left with the definite and

firm conviction that a mistake has been committed.” United States v. Ramirez,

(2d Cir. 2010) (internal quotation marks omitted).

Here, the evidence adequately supported the district court’s finding that the

use-of-violence enhancement applied. When testifying before the grand jury,

Hutchins stated that Cedano and his codefendant Ralph Mariani came to her hotel

room to insist that she sell heroin and cocaine base on their behalf. She testified

7 that, when she refused, Mariani threatened to kill her and then punched and

kicked her while Cedano was still in the room. Smith, Hutchins’s boyfriend at the

time who also testified before the grand jury, stated that he witnessed both Mariani

and Cedano assault Hutchins by punching and slapping her. Although Smith

could not recall that fact when he testified at the sentencing hearing more than

twenty months later, he conclusively testified that Cedano was “[a]bout an arm

length’s away” from Hutchins when the assault occurred. App’x at 71.

On this record, it was not unreasonable for the district court to conclude that

Mariani and Cedano confronted Hutchins to “persuade her to go back into the

business of selling drugs for them” and that Cedano “played his part” in the

violence by confronting her “in an aggressive manner.”

at 191–92. The record

evidence indicates that Cedano entered Hutchins’s hotel room with Mariani,

demanded that she sell drugs, remained in close proximity to her during the

assault, and possibly even assaulted her himself. Cedano’s contention that

Mariani “was the boss” in the situation, Cedano Br. at 27, is irrelevant, since the

enhancement only requires the defendant’s involvement in the assault, not a

leadership role. We therefore reject Cedano’s argument that the district court

clearly erred in applying the two-level upward adjustment.

8 * * *

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

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9