Appellee, v. EDMENCIO ANTONIO RODRIGUEZ-CRUZ, Defendant-Appellant., (2nd Cir. 2004)
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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 18th day of May, two thousand and four.
PRESENT:
Hon. John M. Walker, Jr., Chief Judge, Hon. Rosemary S. Pooler, Circuit Judge, Hon. J. Garvan Murtha, District Judge.*
UNITED STATES OF AMERICA, Appellee, v. No. 02-1336
EDMENCIO ANTONIO RODRIGUEZ-CRUZ, Defendant-Appellant.
APPEARING FOR APPELLANT: B. ALAN SEIDLER, New York, NY APPEARING FOR APPELLEE: MICHAEL M. PURPURA, Assistant United States Attorney (David N.
Kelley, United States Attorney for the Southern District of New York, Gary Stein, Assistant United States Attorney, on the brief), New York, NY Appeal from the United States District Court for the Southern District of New York (Thomas P. Griesa, District Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Defendant-appellant Edmencio Antonio Rodriguez-Cruz appeals from a judgment of the United States District Court for the Southern District of New York (Griesa, District Judge), convicting him of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 upon his guilty plea. On February 7, 2002, the district court conducted a Fatico hearing during which it determined Rodriguez-Cruz conspired to distribute between one and three kilograms of heroin. See United States v. Fatico, 579 F.2d 707 (2d Cir. 1978). On May 21, 2002, Rodriguez-Cruz was sentenced to a term of 97 months' imprisonment to be followed by a five-year term of supervised release.
On appeal, Rodriguez-Cruz argues, inter alia, that the district court's determination of the amount of heroin involved in the offense was clearly erroneous and that he should have received a base level offense of 26 under United States Sentencing Guidelines § 2D1.1(c)(7). Rodriguez-Cruz alternately contends that the district court should have considered a downward departure based on an "extraordinary combination of circumstances." See United States v. Cordoba-Murgas, 233 F.3d 704, 709 (2d Cir. 2000). We affirm.
The district court's finding regarding the quantity of heroin was amply supported by the record and did not amount to clear error.
Moreover, a district court's refusal to downwardly depart is not appealable "unless the guidelines were misapplied, the court misapprehended its authority or imposed an illegal sentence."
United States v. Haynes, 985 F.2d 65, 68 (2d Cir. 1993)(citations omitted). In this case, because Rodriguez-Cruz did not move for a downward departure on the basis of an "extraordinary combination of circumstances" under Cordoba-Murgas, we lack jurisdiction to review the district court's failure to depart on that basis. See United States v. Hurtado, 47 F.3d 577, 585 (2d Cir. 1995) (sentencing court's silence on a downward departure issue that the defendant did not raise below "does not support an inference that the court misunderstood its authority to depart").
We have considered all of Rodriguez-Cruz's arguments and find them to be without merit.
Accordingly, and for the foregoing reasons, the district court's judgment is hereby AFFIRMED.
FOR THE COURT:
Roseann B. MacKechnie, Clerk By:
Lucille Carr, Deputy Clerk
[*]-. The Honorable J. Garvan Murtha, District Judge for the United States District Court for the District of Vermont, sitting by designation.
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This document cites
- US Code - Title 21: Food and Drugs - 21 USC 846 - Sec. 846. Attempt and conspiracy
- U.S. Court of Appeals for the Second Circuit - United States of America, Appellee, v. Manuel Hurtado, Also Known as Jorge Vega, Also Known as Manolo, Defendant-Appellant., 47 F.3d 577 (2nd Cir. 1995)
- U.S. Court of Appeals for the Second Circuit - United States of America, Appellant, v. Carmine Fatico, and Daniel Fatico, Appellees., 579 F.2d 707 (2nd Cir. 1978)
- U.S. Court of Appeals for the Second Circuit - United States of America, Appellee, v. Ronald Haynes, and Jahmal Rose, Defendants-Appellants. Willie Goldwire, Ronald Duran, and Natasha White, Defendants., 985 F.2d 65 (2nd Cir. 1993)
- U.S. Court of Appeals for the Second Circuit - United States of America, Appellee-Cross-Appellant v. Raul Antonio Cordoba-Murgas, A/K/a Strawberry, Luis E. Cordoba-Murgas, A/K/a Sealed Defendant #2, A/K/a Negro, A/K/A, Carlos, Luis A.Todd-Murgas, A/K/a Sealed Defendant #3, A/K/a Little Louie, Appellants-Cross-Appellees, Luis A. Murgas, A/K/a Sealed Defendant #1, A/K/a Big Louie, A/K/a Barosa, Ruben A. Todd-Murgas, A/K/a Sealed Defendant #5, Jose C. Dominguez, A/K/a Sealed Defendant #6, A/K/a Pachito, Gilberto Arce, A/K/a Sealed Defendant #7, A/K/a Luigi Santiago, Jason Jones, A/K/a Sealed Defendant #8, Tiffany Gaudinot, A/K/a Sealed Defendant #10, Tricia Irving, A/K/a Sealed Defendant #11, and Dennis J. Calandra, Jr., Defendants, Vincinte Rogers, A/K/a Sealed Defendant #9, A/K/a Mr. Santos, Ruben A. Todd-Murgas, A/K/a Sealed Defendant #5, Gilberto Arce, A/K/a Sealed Defendant #7, A/K/a Luigi Santiago, and Cesar A. Todd-Murgas,A/K/a Sealed Defendant #4, A/K/a Tony, A/K/a Pepita, Defendants-Appellants., 233 F.3d 704 (2nd Cir. 2000)
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