United States v. Naranjo-Ramirez

09-4343-cr United States v. Naranjo-Ramirez UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New 3 York, on the 2 nd day of December, two thousand ten. — 4 — 5 PRESENT: AMALYA L. KEARSE, 6 ROBERT D. SACK, 7 GERARD E. LYNCH, 8 Circuit Judges. — 9 — — 10 — 11 ------------------------------------------------------------------ 12 UNITED STATES OF AMERICA, 13 Appellee, 14 v. No. 09-4343-cr — 15 — 16 ROBINSON NARANJO-RAMIREZ, also known as 17 Chicho, also known as Robinson Flores, also known as 18 Roy, 19 Defendant-Appellant. 20 -------------------------------------------------------------------- — 21 — 22 FOR APPELLANT: Lawrence Gerzog, New York, New York. — 23 — — 24 — — 1 — 1 FOR APPELLEE: Justin D. Lerer, Assistant United States Attorney 2 (Susan Corkery, Assistant Unitd States Attorney, 3 on the brief), for Loretta E. Lynch, United States 4 Attorney for the Eastern District of New York. — 5 — 6 Appeal from the United States District Court for the Eastern District of New York 7 (Sandra L. Townes, District Judge). — 8 — 9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 10 DECREED that the judgment, entered on August 10, 2009, is AFFIRMED. — 11 — 12 Defendant-Appellant Robinson Naranjo-Ramirez was convicted, following a guilty 13 plea, of conspiracy to import heroin in violation of 21 U.S.C. §§ 952 (a), 960(a)(1), 14 960(b)(1)(A), and 963. The district court sentenced Naranjo-Ramirez to 150 months of 15 imprisonment, followed by five years of supervised release, and a $100 special 16 assessment. Naranjo-Ramirez now appeals, arguing that his sentence was procedurally 17 unreasonable. We assume the parties’ familiarity with the facts and the record of prior 18 proceedings, which we reference only as necessary to explain our decision. 19 The Presentence Investigation Report (“PSR”) concluded that Naranjo-Ramirez 20 was the leader of a conspiracy involving at least eleven participants, resulting in a four21 point aggravating role adjustment. At sentencing, when asked by the district court 22 whether the government could prove the leadership enhancement proposed in the PSR 23 was justified, the government indicated that it had previously represented to Naranjo24 Ramirez that it would not argue for such an adjustment, but that it could prove the 25 leadership role if the court ordered a hearing. The district court noted that it had an 26 independent obligation to determine the advisory guideline range and to consider the — 2 — 1 factors pursuant to 18 U.S.C. § 3553 (a), and it ordered a hearing to determine whether 2 such an adjustment was appropriate. The parties eventually stipulated to a two-level 3 adjustment, and no hearing was held. Naranjo-Ramirez now argues that his sentence is 4 unreasonable because the district court lacked the authority to order the hearing. 5 Naranjo-Ramirez did not object when the district court ordered the hearing, and he 6 specifically withdrew his letter objecting to the two-level stipulated enhancement at 7 sentencing. Accordingly, we review the district court’s decision to order the hearing for 8 plain error. United States v. Olano, 507 U.S. 725, 732 (1993); United States v. 9 Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007). We find no error, let alone plain error. 10 It was “clearly within [the] power” of the district court to “direct[] the Government 11 to provide [it] with the pertinent information.” United States v. Goodman, 165 F.3d 169 , 12 173 (2d Cir. 1999). Further, even if we were to construe the government’s prior 13 representation in an unsuccessful plea negotiation as a binding promise, such a promise 14 by the Government to refrain from arguing for a specific position would “not forbid the 15 government from responding to a specific request of the court by ‘supply[ing] the Court 16 with the law and the facts.’” United States v. Riera, 298 F.3d 128, 135 (2d Cir. 2002), 17 quoting Goodman, 165 F.3d at 172 . Thus, the district court committed no procedural 18 error in ordering a hearing to determine whether or not Naranjo-Ramirez’s role in the 19 crime merited a leadership enhancement. — 3 — 1 Naranjo-Ramirez also alleges procedural error because the district court allegedly 2 failed to account for the “harsh” conditions of his pre-extradition confinement in 3 Colombia’s Combita prison. “[P]re-sentence confinement conditions may in appropriate 4 cases be a permissible basis for downward departures.” United States v. Carty, 264 F.3d 5 191, 196 (2d Cir. 2001) (emphasis added). However, the district judge was under no 6 obligation to depart from the Guidelines on the basis of Naranjo-Ramirez’s allegedly 7 harsh pre-sentence confinement conditions. This is so notwithstanding that other district 8 court judges have invoked the unusually difficult conditions in the Combita prison in 9 granting downward departures. See, e.g., United States v. Torres, No. 01 CR 1078, 2005 10 WL 2087818 at *2 (S.D.N.Y. Aug. 30, 2005). 11 Naranjo-Ramirez argues that, even if such a downward departure is not mandatory, 12 the district court committed error because it “failed to consider” the harsh conditions at 13 Combita. There is a “strong presumption that a sentencing judge has taken properly 14 presented arguments into account and considered all the § 3553(a) factors in the course of 15 imposing a sentence.” United States v. Fernandez, 443 F.3d 19, 34-35 (2d Cir. 2006). 16 Naranjo-Ramirez has failed to overcome this presumption. 17 In the instant case, the district judge specifically noted that she had reviewed the 18 defense’s July 29, 2009 letter, which discussed the conditions at Combita, and Naranjo19 Ramirez’s attorney reiterated the harshness of the conditions there during the very hearing 20 at which the district judge imposed Naranjo-Ramirez’s sentence. The “absence of — 4 — 1 explicit discussion” of the conditions at Combita “does not overcome our strong 2 presumption that the District Court faithfully performed its statutory obligation to 3 consider the § 3553(a) factors.” Id. at 33; see also United States v. Bonilla, 618 F.3d 102 , 4 111 (2d Cir. 2010) (“[W]e never have required a District Court to make specific 5 responses to points argued by counsel in connection with sentencing . . . .”). We therefore 6 conclude that Naranjo-Ramirez has not overcome the presumption that the district judge 7 properly considered his pre-sentencing confinement conditions, even though she did not – 8 and was not required to – specifically address those harsh conditions when imposing the 9 sentence. 10 We have considered all of Naranjo-Ramirez’s contentions on this appeal and have 11 found them to be without merit. For the foregoing reasons, the judgment is AFFIRMED. — 12 — — 13 — 14 FOR THE COURT: 15 CATHERINE O’HAGAN WOLFE, Clerk of Court — 16 — — 17 — — 5 —