United States v. De La Cruz

114 F. App'x 30
CourtCourt of Appeals for the Second Circuit
DecidedNovember 10, 2004
DocketNo. 04-1448
StatusPublished

This text of 114 F. App'x 30 (United States v. De La Cruz) 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.

Bluebook
United States v. De La Cruz, 114 F. App'x 30 (2d Cir. 2004).

Opinion

SUMMARY ORDER

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

The defendant-appellant, Julio De La Cruz, was convicted of one count of an indictment under 21 U.S.C. § 846 (conspiracy to distribute cocaine), one count under 18 U.S.C. § 1956(b) (conspiracy to launder money), one count under 18 U.S.C. § 924(c)(1)(A)© (illegal possession of a firearm in furtherance of a narcotics offense), and one count under 18 U.S.C. § 111(a)(1) (assault of a federal officer). The United States District Court for the Southern District of New York (Barbara S. Jones, Judge) sentenced De La Cruz to 188 months’ incarceration on the narcotics, money laundering, and assault charges, to be served concurrently, and 60 months’ incarceration on the firearm charge, to be served consecutively, for a total of 248 months’ incarceration. In sentencing De La Cruz, Judge Jones accepted the offense level set forth in the Presentence Investigation Report, denying De La Cruz’s motion for a “minor participant” downward adjustment pursuant to U.S.S.G. § 3B1.2. De La Cruz appeals his conviction and sentence. He argues, in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that his Sixth Amendment right to confrontation was violated by the admission in evidence, at his trial, of his co-defendant José Vasquez’s [32]*32guilty plea allocution. In addition, he claims that the district court erred in refusing to find, at sentencing, that he was a “minor” participant.

When, as in this case, a defendant raises a Confrontation Clause claim regarding an admission of evidence after failing to make a timely objection to that admission at trial, this Court reviews for “plain error.” See United States v. Dukagjini, 326 F.3d 45, 59-60 (2003); Fed.R.Crim.P. 52(b). Under this standard, “before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affects substantial rights.’ If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (further quotation marks and citation omitted). “[A]n error ‘affects a defendant’s substantial rights if it is prejudicial and it affected the outcome of the district court proceedings.’ ” United States v. Bruno, 383 F.3d 65, 79 (2d Cir.2004) (quoting United States v. Thomas, 274 F.3d 655, 668 (2d Cir.2001) (en banc)). In determining whether a defendant’s substantial rights were affected, we consider a variety of factors, including “ ‘whether the Government’s case against the defendants] was strong; whether the evidence in question bears on an issue that is plainly critical to the jury’s decision ...; whether the evidence was emphasized in the Government’s presentation of its case and in its arguments to the jury; and whether the case was close.’ ” Id. (quoting United States v. Jean-Baptiste, 166 F.3d 102, 108-09 (2d Cir.1999)) (alterations in Bruno).

In Crawford v. Washington, the Supreme Court held that “[wjhere testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford, 124 S.Ct. at 1374. It is clear that “a plea allocution by a co-conspirator who does not testify at trial may not be introduced as substantive evidence against a defendant unless the co-conspirator is unavailable and there has been a prior opportunity for cross-examination.” United States v. McClain, 377 F.3d 219, 221-22 (2d Cir.2004). Thus in this case, as the government concedes, the admission of Vasquez’s plea allocution met the first two prongs of the “plain error” test.

However, the next two prongs of the “plain error” test have not been met. The admission of the plea allocution did not affect De La Cruz’s substantial rights, nor did it seriously affect the fairness, integrity, or public reputation of the judicial proceedings.

The district court specifically instructed the jury that Vasquez’s guilty plea allocution could only be considered “for the purpose of determining whether a narcotics conspiracy or a money laundering conspiracy in fact existed” and “not ... to determine whether Julio De La Cruz ... was a member of any conspiracy.” We must assume that the jury followed this instruction. See McClain, 377 F.3d at 223; Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In this case, there was sufficient evidence, without Vasquez’s plea allocution, for a jury to find that a narcotics conspiracy and a money laundering conspiracy existed — as defense counsel expressly conceded at oral argument regarding the latter.

As for the sentencing claim, this Court reviews de novo a district court’s legal [33]*33interpretation of the Sentencing Guidelines, see, e.g., United States v. Carpenter, 252 F.3d 230, 234 (2d Cir.2001), and we “accept the findings of fact of the district court unless they are clearly erroneous and ... give due deference to the district court’s application of the guidelines to the facts” when the sentence is not outside the applicable guideline range, 18 U.S.C. § 3742(e). “A finding is clearly erroneous ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Ekwunoh, 12 F.3d 368, 370 (2d Cir.1993) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)) (further internal quotations omitted).

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Related

Anderson v. City of Bessemer City
470 U.S. 564 (Supreme Court, 1985)
Richardson v. Marsh
481 U.S. 200 (Supreme Court, 1987)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Johnson v. United States
520 U.S. 461 (Supreme Court, 1997)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
United States v. Fanfan
542 U.S. 956 (Supreme Court, 2004)
United States v. Booker
542 U.S. 956 (Supreme Court, 2004)
United States v. Caroline Oyibo Ekwunoh
12 F.3d 368 (Second Circuit, 1993)
United States v. Ruth Jean-Baptiste
166 F.3d 102 (Second Circuit, 1999)
United States v. Elizabeth Castano
234 F.3d 111 (Second Circuit, 2000)
United States v. Donald P. Carpenter
252 F.3d 230 (Second Circuit, 2001)
United States v. Ramse Thomas
274 F.3d 655 (Second Circuit, 2001)
United States v. Leon Dukagjini
326 F.3d 45 (Second Circuit, 2003)
UNITED STATES v. McCLAIN
377 F.3d 219 (Second Circuit, 2004)

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Bluebook (online)
114 F. App'x 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-de-la-cruz-ca2-2004.