United States v. Vinas, (2nd Cir. 2009)

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08-0642-cr

United States v. Vinas

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY

ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY TH IS 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 SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A

CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR

BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)." UNLESS THE SUM M ARY ORDER

IS AVAILAB LE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY ACCESSIBLE W ITHOUT

PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT http://www.ca2.uscourts.gov/), THE

PARTY CITING THE SUM M ARY ORDER M UST FILE AND SERVE A C OPY OF THAT SUM M ARY

ORDER TOGETHER W ITH THE PAPER IN W HICH THE SUM M ARY ORDER IS CITED. IF NO COPY

IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE

CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE

CASE IN W HICH THE ORDER W AS 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 22nd day of January, two thousand and nine.

PRESENT: HON. AMALYA L. KEARSE,

HON. CHESTER J. STRAUB,

HON. PETER W. HALL,

Circuit Judges.

United States of America,

Appellee,

v. No. 08-0642-cr

Ricardo Antonio Vinas, also known as Secretario, also known as Secre,

Defendant-Appellant.

FOR DEFENDANT-APPELLANT: B. Alan Seidler, New York, NY.

FOR APPELLEE: Arlo Devlin-Brown, (William J. Harrington,

Katherine Polk Failla, on the brief),

Assistant United States Attorneys for

Michael J. Garcia, United States Attorney

for the Southern District of New York, New

York, NY.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the United States District Court for the Southern District of New York is AFFIRMED.

Defendant-appellant Ricardo Vinas appeals from a judgment of conviction entered on February 1, 2008, in the Southern District of New York (Daniels, J.) for conspiracy to distribute or to possess with intent to distribute one kilogram or more of heroin, in violation of 21U.S.C.

0000§§ 812, 841(a)(1), 841(b)(1)(A), and 846. On appeal, Vinas asserts that: (1) there was insufficient evidence to support his conviction; (2) the Government violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding material information; and (3) the sentence of 235 months' imprisonment was unreasonable.

We assume the parties' familiarity with the underlying facts and procedural history.

Sufficiency of the Evidence A defendant seeking to reverse his conviction due to insufficiency of the evidence bears a "heavy burden." United States v. Jones, 482 F.3d 60, 68 (2d Cir. 2006) (internal quotations omitted). We "view the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor, and reverse only if no rational factfinder could have found guilt beyond a reasonable doubt." United States. v. Carlo, 507 F.3d 799, 801 (2d Cir. 2007); see e.g., United States v. MacPherson, 424 F.3d 183, 187 (2d Cir. 2005) (upholding a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original))).

Vinas's sufficiency of the evidence argument is without merit. Ample evidence was presented at trial to support the jury's finding that Vinas participated in the heroin distribution conspiracy that was charged. This evidence included: (1) an intercepted phone communication in which Vinas spoke in code about a heroin delivery; (2) Vinas's possession at the time of his arrest of 4.5 kilograms of heroin hidden inside five pairs of shoes; cooperating witness Mario Fonnegra's identification of Vinas as the heroin supplier named "Secre"; (4) Vinas's possession of a pre-paid cellular phone, bought under a fake name, that included a single entry in the address book for "Varon" (a person whom Fonnegra identified as participating with Vinas in heroin trafficking in Florida); (5) Vinas's prior travel history to New York, which closely matched times when Fonnegra received heroin shipments; (6) Vinas's unusual method of travel between Miami and New York in which he arrived via bus but then purchased last-minute, one-way airline tickets to return to Miami; (7) Vinas's possession of $200,000 in cash hidden in gift-wrapped packages; and (8) Vinas's bank records showing over $400,000 in unexplained cash and money order deposits. This evidence is sufficient to permit a rational factfinder to find that Vinas was guilty of conspiring to distribute one kilogram or more of heroin.

Brady Violation Vinas seeks a new trial because "[t]he Government failed to disclose evidence concerning prior drug dealing between Fonnegra and Alberto Varon." Vinas's claimed Brady violation fails because Vinas does not identify what information was improperly suppressed. Vinas asserts in his brief that "the Government did not fulfill its disclosure obligations." This is not enough.

Vinas must make more than a vague accusation to support his claim of a Brady violation.

Further, even if Vinas could somehow show that the Government failed to disclose relevant information, Vinas's claim would still fail because the extensive evidence introduced against him precludes him from showing prejudice as a result of the non-disclosure. See Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) ("[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (internal quotations omitted)).

Reasonableness of Sentence Vinas argues on appeal that the district court's sentence of 235 months' imprisonment was unreasonable due to the court's improper calculation of his base offense level and the court's failure to consider Vinas's family and employment history. Vinas contends that he should be held responsible only for the 4.5 kilograms of heroin seized at the time of his arrest and, therefore, his sentence should have been calculated beginning at base offense level 34 rather than level 38. Contrary to Vinas's argument, the district court did not err in finding him responsible for more than 30 kilograms of heroin or in applying a base offense level of 38. A district court may determine a specific drug quantity at sentencing by a preponderance of the evidence so long as the drug quantity does not trigger a statutory minimum sentence and does not authorize the judge to impose a higher penalty.1 See United States v. Vaughn, 430 F.3d 518, 525 (2d Cir.

2005) ("We reiterate that, after Booker, district courts' authority to determine sentencing factors by a preponderance of the evidence endures and does not violate the Due Process Clause of the Fifth Amendment."). The testimony of Fonnegra, coupled with Vinas's bank and travel records established by a preponderance of the evidence that Vinas had been part of a Colombian drugtrafficking conspiracy, that he had repeatedly transported large quantities of heroin to New York City, and that he was responsible for more than 30 kilograms of heroin.

We are also not persuaded by Vinas's argument about his family and employment history.

1 The district court could consider drug quantity as a sentencing factor because the jury found Vinas guilty of conspiring to distribute one kilogram or more of heroin and under 21U.S.C. § 841(b)(1)(A), Vinas faced a maximum penalty of life imprisonment.

At sentencing, the district court expressly stated that it had considered all factors under 18U.S.C.

§ 3553(a) and that a downward departure was not warranted. The district court's sentence at the bottom end of the recommended Guidelines range was reasonable.

We have considered Vinas's other arguments and find them to be without merit. For the foregoing reasons, the judgment of the United States District Court for the Southern District of New York is AFFIRMED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

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