10-220-cr
USA v. Conde-Falon (Cruz-Vargas)

                            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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 20th day of April, two thousand eleven.

Present: PIERRE N. LEVAL,
         ROBERT A. KATZMANN,
         PETER W. HALL,
                           Circuit Judges,
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                            No. 10-220-cr

LUIS CARLOS CONDE-FALON, AKA NENE, MANUEL HUMBERTO GOMEZ, ARLES
BALLESTEROS-SANCHEZ, LUIS ALEJANDRO LEYTON-GONZALES,

                           Defendants,

JHONATHAN CRUZ-VARGAS,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                           ROBERT A. CULP, Law Office of Robert A.
                                                   Culp, Garrison, N.Y.

For Appellee:                                      SARAH Y. LAI, Assistant United States Attorney
                                                   (Andrew L. Fish, Assistant United States
                                                   Attorney, on the brief), for Preet Bharara,
                                                   United States Attorney for the Southern District
                                                   of New York.
        Appeal from the United States District Court for the Southern District of New York

(Sullivan, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Jhonathan Cruz-Vargas appeals from a January 7, 2010 judgement

of the United States District Court for the Southern District of New York (Sullivan, J.) entered

following a plea of guilty to one count of conspiracy to distribute and possess with intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and one count of

conspiracy to import into the United States five kilograms or more of cocaine, in violation of 21

U.S.C. § 963. The district court sentenced Cruz-Vargas principally to 100 months’

imprisonment. We assume the parties’ familiarity with the underlying facts and procedural

history of this case.

        Cruz-Vargas contends that (1) the district court committed procedural error in denying

his request for a minor role adjustment to his offense level; and (2) his sentence was

substantively unreasonable. We review the sentence imposed by the district court for

reasonableness, which “amounts to review for abuse of discretion.” United States v. Cavera, 550

F.3d 180, 187 (2d Cir. 2008) (en banc) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). “A

district court commits procedural error where it fails to calculate the Guidelines range . . . ,

makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory. It also errs

procedurally if it does not consider the § 3553(a) factors, or rests its sentence on a clearly

erroneous finding of fact,” or fails to explain adequately its sentence. Id. at 190 (citing Gall, 552

U.S. at 50) (internal citations omitted). Substantive determinations shall be set aside “only in


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exceptional cases where the trial court’s decision ‘cannot be located within the range of

permissible decisions.’” Id. at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.

2007)). “Generally, ‘[i]f the ultimate sentence is reasonable and the sentencing judge did not

commit procedural error in imposing that sentence, we will not second guess the weight (or lack

thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that

factor.’” United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009) (alteration in original)

(quoting United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006)).

       We turn first to Cruz-Vargas’s role adjustment argument. Section 3B1.2(b) of the

Sentencing Guidelines directs that “[i]f the defendant was a minor participant in any criminal

activity, decrease [the offense level] by 2 levels.” An adjustment is warranted only if the

defendant’s “part in committing the offense . . . makes him substantially less culpable than the

average participant.” U.S.S.G. § 3B1.2 cmt. n.3(A) (2009). A minor participant is one “who is

less culpable than most other participants, but whose role could not be described as minimal.”

Id. § 3B1.2 cmt. n.5. A defendant bears the burden of proving his qualification for such an

adjustment. United States v. Ravelo, 370 F.3d 266, 269 (2d Cir. 2004). “In making this ‘highly

fact-specific’ determination,” id. at 269-70 (quoting United States v. Shonubi, 998 F.2d 84, 90

(2d Cir. 1993)), “a district court looks to factors such as ‘the nature of the defendant’s

relationship to other participants, the importance of the defendant’s actions to the success of the

venture, and the defendant’s awareness of the nature and scope of the criminal enterprise,’” id. at

270 (quoting United States v. Yu, 285 F.3d 192, 200 (2d Cir. 2002)). Our review of a district

court’s discretionary decision as to “whether to accord a defendant a role adjustment” is




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“deferential.”1 United States v. Labbe, 588 F.3d 139, 144 (2d Cir. 2009).

       The parties do not dispute that Cruz-Vargas’s role in the conspiracy was less substantial

than his co-defendants’. However, “a minor-role adjustment is not available merely on a

showing that the defendant ‘played a lesser role than his co-conspirators; to be eligible for a

reduction, the defendant’s conduct must be “minor” . . . as compared to the average participant in

such a crime.’” United States v. Yu, 285 F.3d 192, 200 (2d Cir. 2002) (quoting United States v.

Rahman, 189 F.3d 88, 159 (2d Cir. 1999)). Cruz-Vargas argues that his role was “minor”

because he only packed cocaine on a handful of occasions, and he was not involved in

transporting the cocaine into the United States. However, Cruz-Vargas worked for the drug

organization for close to a year, frequently packaging large quantities of cocaine and otherwise

assisting the conspiracy in its work. Although Cruz-Vargas did not himself transport the

cocaine, this does not distinguish him from the numerous “average” members of narcotics

conspiracies who work as packers rather than couriers; both roles are crucial to the success of

such a conspiracy. See Yu, 285 F.3d at 200. Accordingly, we conclude that the district court did

not err in finding that Cruz-Vargas’s role was not “minor” and therefore denying a role

adjustment pursuant to § 3B1.2(b).

       Cruz-Vargas also challenges the substantive reasonableness of his 100-month sentence,

making various arguments pertaining to his relative level of culpability. However, the district

court clearly understood and weighed Cruz-Vargas’s culpability arguments, and he in fact

received the lowest sentence of the non-cooperating co-defendants. In addition, the district court


       1
          As we noted in Labbe, our Circuit has not been consistent in articulating the standard of
review governing role adjustments. See 588 F.3d at 145 n.2. However, because we find no error
in the district court’s analysis and our conclusion would therefore be the same under any level of
deference, we need not determine the appropriate standard at this time.

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made clear that the need for general deterrence was a significant factor in the sentence that it

imposed. Cruz-Vargas’s arguments about the reasonableness of his sentence do not address this

factor, and the weight given by the district court to deterrence is exactly the sort of exercise of

discretion that “we will not second guess.” Pope, 554 F.3d at 247 (quoting Fernandez, 443 F.3d

at 34). We therefore conclude that the sentence imposed by the district court was substantively

reasonable.

       We have considered all of Cruz-Vargas’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

hereby AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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