United States v. Echeverri

170 F. App'x 206

• Court: Court of Appeals for the Second Circuit
• Decided: March 13, 2006
• Docket: No. 05-1841-CR
• Status: Published

Opinion

SUMMARY ORDER

Defendant-appellant Javier Echeverri (also known as “El Mono”) appeals from an April 6, 2005, judgment of the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge) convicting him, following his guilty plea, of conspiracy to possess with the intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(i). The district court sentenced Echeverri to 97 months’ imprisonment, to be followed by five years’ supervised release, and imposed a special assessment of $100.00.

On appeal, Echeverri argues that, even though he pleaded guilty to conspiracy to possess with the intent to distribute one kilogram or more of heroin, he should have been sentenced for distributing a lesser quantity of heroin, 975 grams, because that is the amount that was actually delivered during the transaction that he helped to arrange. Specifically, Echeverri argues that the district court erred in attributing to him one kilogram of heroin because (1) under U.S. Sentencing Guidelines Manual § 2D1.1, Application Note 12, he should have been sentenced based on the amount delivered, not the amount agreed-upon; (2) it was neither foreseeable nor within the scope of the conspiracy that, after the transaction that Echeverri helped to arrange, the purchasers would add “cut” sufficient to produce a full kilogram of heroin; and (3) the district court applied a relaxed fact-finding standard. We assume the parties’ familiarity with the facts and the procedural history of the case.

We review a district court’s sentencing decisions for reasonableness. United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Crosby, 397 F.3d 103, 114-115 (2d Cir.2005). Reasonableness review has two components: (1) procedural reasonableness, whereby we consider such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a); and (2) substantive reasonableness, whereby we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a). Crosby, 397 F.3d at 114-15. We review a district court’s interpretation of the Sentencing Guidelines de novo, United States v. Adler, 52 F.3d 20, 21 (2d Cir.1995) (per curiam); evaluate its findings of fact under the clearly erroneous standard, United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir.2005); and give due deference to the district court’s application of the Guidelines to the facts, id.

We easily dispense with Echeverri’s argument that, under Guideline § 2D1.1, Application Note 12, the district court erred in attributing to him the agreed-upon quantity of heroin (one kilogram), rather than the amount that was actually delivered (975 grams). Echeverri contacted Núñez to see if Núñez could sell a kilogram of heroin; some time thereafter, Echeverri agreed to provide Núñez with a full kilogram of heroin; Echeverri arranged for Núñez and Baez to pick up one kilogram of heroin from Vanessa in exchange for $58,000, which is consistent with the cost for a full kilogram of heroin; Núñez and Baez paid $10,000 up front (for what they believed was a full kilogram of heroin) and agreed to provide the balance of $48,000 after they sold the heroin to a third party; and Echeverri understood that he would not be paid in full until Núñez and Baez sold a kilogram of heroin to a third party. Under these circumstances, we cannot say that the amount delivered “more accurately reflected] the scale of the offense.” U.S.S.G. § 2D1.1 app. n. 12. Accordingly, the district court did not err when it sentenced Echeverri based on the agreed-upon amount of one kilogram.

The district court also did not err when it attributed to Echeverri the “cut” that Núñez and Baez subsequently added to the heroin to produce a quantity in excess of one kilogram. The district court found, based on the facts outlined above, that (1) the scope of the conspiracy included Núñez and Baez’s resale of a full kilogram of heroin to a third party and (2) it was reasonably foreseeable that Núñez and Baez would “do what is necessary to sell a kilogram to the ultimate buyer.” These findings are not clearly erroneous.

Finally, we reject Echeverri’s argument that the district court proceeded under a relaxed fact-finding standard. After carefully considering the evidence before it, including Echeverri’s arguments about quantity attribution, the district court made particularized findings regarding the scope of the conspiracy and the reasonable foreseeability of the coconspirators’ conduct.

We have considered Echeverri’s other arguments and find them to be without merit.

Accordingly, and for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.