United States v. Suriel (Garcia), (2nd Cir. 2009)

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08-3952-cr

United States v. Suriel (Garcia)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 4 th day of June, two thousand nine.

PRESENT: HON. DENNIS JACOBS,

Chief Judge,

HON. AMALYA L. KEARSE,

HON. CHESTER J. STRAUB,

Circuit Judges.

X

UNITED STATES OF AMERICA,

Appellee,

-v.- 08-3952-cr

DOMINGO SURIEL, DANILO RODRIGUEZ,

Defendants,

ANDRES GARCIA,

Defendant-Appellant.

X

APPEARING FOR APPELLANT: AMELIO P. MARINO, Marino &

Veneziano, New York, New

York.

APPEARING FOR APPELLEE: IRIS LAN, Michael A. Levy, Assistant United States Attorneys, for Lev L.

Dassin, Acting United States Attorney for the Southern District of New York.

Appeal from a judgment of the United States District Court for the Southern District of New York (Duffy, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Defendant-Appellant Andres Garcia appeals from a judgment of conviction entered on August 5, 2008 in the United States District Court for the Southern District of New York. Garcia pleaded guilty to one count of conspiring to distribute and possess with intent to distribute 100 grams or more of heroin in violation of 21U.S.C. § 846. He was sentenced to a term of 63 months' imprisonment. On appeal, Garcia contends that the district judge clearly erred in concluding that Garcia was ineligible for safety valve relief. We assume the parties' familiarity with the facts, the procedural history, and the issues on appeal.

[1] The government argues initially that Garcia's appeal should be dismissed on the ground that in his plea agreement he waived his right to appeal the district court's safety valve eligibility determination in the event his sentence is no greater than 63 months' imprisonment. This argument appears to be foreclosed by our decision in United States v. Tang, 214 F.3d 365, 366-68 (2d Cir. 2000), where we construed a substantially similar plea agreement as permitting an appeal of the safety valve determination by a defendant in Garcia's position. The government's brief does not cite to this proposition in Tang, which is odd since Tang is cited elsewhere for an unrelated and unremarkable proposition. Nevertheless, we agree with the government's other argument that Garcia's appeal fails on the merits.

[2] Garcia could not in any way have prevailed on the merits. To qualify for safety valve relief, a defendant bears the burden of proving, inter alia, that "not later than the time of the sentencing hearing, [he] has truthfully provided to the Government all information and evidence [he] has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5); United States v. Tang, 214 F.3d 365, 371 (2d Cir. 2000) ("A defendant bears the burden of proving that he has met all five safety valve criteria."). If a defendant does not truthfully disclose all that he knows about his offense, the safety valve reduction is properly denied. See United States v.

Conde, 178 F.3d 616, 620-21 (2d Cir. 1999).

We review the district court's factual findings for clear error. United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir. 2005).

At Garcia's first proffer session, he named "Aladino" as the source of the funds loaned in the drug conspiracy.

At the second proffer session, he claimed the money came from personal savings hidden in socks and elsewhere. Both assertions cannot be true. At sentencing, Garcia claimed that the money did not come from Aladino as stated during the first proffer session, and that he accurately reported the source of the money in the second. Judge Duffy quite reasonably rejected that assertion and found that Garcia lied in the second session because (inter alia): (i) the claim that the money came from Aladino was corroborated by other evidence in the case, including tape-recorded conversations between Garcia and a co-conspirator discussing potential drug deals with Aladino, and (ii) Garcia filed income tax returns reporting income of only $7,853 for 2003, $11,663 for 2004, and $13,375 for 2005, and yet suddenly "ends up with $15,000 in a sock." Garcia did not sustain his burden and Judge Duffy did not clearly err.

We have reviewed Appellant's remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.

FOR THE COURT: CATHERINE O'HAGAN WOLFE, CLERK By:

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