United States v. Capellan

Second Circuit

United States v. Capellan

96 F. App'x 35

CourtCourt of Appeals for the Second Circuit

DecidedApril 23, 2004

DocketNo. 03-1083

StatusPublished

Cited by1 cases

This text of 96 F. App'x 35 (United States v. Capellan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Capellan, 96 F. App'x 35 (2d Cir. 2004).

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Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-Appellant Pedro Juan Fermín pled guilty to an indictment charging him with conspiring to distribute and possess with intent to distribute five kilograms and more of cocaine, and with attempting to distribute and possess with intent to distribute five kilograms and more of cocaine, both violations of 21 U.S.C. § 846. Fermín was sentenced to 87 months’ imprisonment, five years of supervised release, and a $200 special assessment. On appeal, Fermín argues that the district court erred (1) in failing to grant him a minor role adjustment under U.S.S.G. § 3B1.2(b), and (2) in refusing to allow his common-law wife to testify in support of his request for a downward departure based on the allegedly aberrant nature of his offense.

I.

It is well-established that “[a] defendant’s courier status does not entitle him automatically to the benefits of the minor and minimal role adjustments.” United States v. Shonubi, 998 F.2d 84, 90 (2d Cir.1993). A courier’s culpability “must depend necessarily on such factors as the nature of the defendant’s relation[37]*37ship 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.” United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990). On the facts of this case, it was entirely reasonable for the district court to find that the defendant’s provision of a car with a hidden compartment in which to hide drugs was important to the operation’s success. Further, Fermín clearly had some awareness of the nature and scope of the enterprise, since he knew he was to be paid based upon the amount of cocaine he was to transport.

II.

Whether or not to conduct an evidentiary hearing at sentencing is a decision committed to the district court’s “broad discretion.” United States v. Zagari, 111 F.3d 307, 330 (2d Cir.1997). Fermín did not object to the district court’s decision not to allow his wife to testify at his sentencing hearing; accordingly, we review that ruling for plain error. United States v. Keigue, 318 F.3d 437, 441-42 (2d Cir.2003). Since the court was prepared to accept as true the defense’s assertions about Fermin’s past conduct, its judgment that the defendant’s wife’s testimony would be redundant cannot be called erroneous.

We have considered all of the appellant’s arguments and found them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

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SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-Appellant Pedro Juan Fermín pled guilty to an indictment charging him with conspiring to distribute and possess with intent to distribute five kilograms and more of cocaine, and with attempting to distribute and possess with intent to distribute five kilograms and more of cocaine, both violations of 21 U.S.C. § 846. Fermín was sentenced to 87 months’ imprisonment, five years of supervised release, and a $200 special assessment. On appeal, Fermín argues that the district court erred (1) in failing to grant him a minor role adjustment under U.S.S.G. § 3B1.2(b), and (2) in refusing to allow his common-law wife to testify in support of his request for a downward departure based on the allegedly aberrant nature of his offense.

I.

It is well-established that “[a] defendant’s courier status does not entitle him automatically to the benefits of the minor and minimal role adjustments.” United States v. Shonubi, 998 F.2d 84, 90 (2d Cir.1993). A courier’s culpability “must depend necessarily on such factors as the nature of the defendant’s relation[37]*37ship 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.” United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990). On the facts of this case, it was entirely reasonable for the district court to find that the defendant’s provision of a car with a hidden compartment in which to hide drugs was important to the operation’s success. Further, Fermín clearly had some awareness of the nature and scope of the enterprise, since he knew he was to be paid based upon the amount of cocaine he was to transport.

II.

Whether or not to conduct an evidentiary hearing at sentencing is a decision committed to the district court’s “broad discretion.” United States v. Zagari, 111 F.3d 307, 330 (2d Cir.1997). Fermín did not object to the district court’s decision not to allow his wife to testify at his sentencing hearing; accordingly, we review that ruling for plain error. United States v. Keigue, 318 F.3d 437, 441-42 (2d Cir.2003). Since the court was prepared to accept as true the defense’s assertions about Fermin’s past conduct, its judgment that the defendant’s wife’s testimony would be redundant cannot be called erroneous.

We have considered all of the appellant’s arguments and found them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

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96 F. App'x 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-capellan-ca2-2004.

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