United States v. Santiago

Opinion

24-2615-cr United States v. Santiago

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 12th day of January, two thousand twenty-six. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 BARRINGTON D. PARKER, 9 MICHAEL H. PARK, 10 Circuit Judges, 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 24-2615 18 19 JERRARD SANTIAGO, 20 21 Defendant-Appellant. 22 _____________________________________ 23 24 For Appellee: CHRISTOPHER W. SCHMEISSER (Conor M. Reardon, on 25 the brief), Assistant United States Attorneys, for David 26 X. Sullivan, United States Attorney, District of 27 Connecticut, New Haven, CT. 28 29 For Defendant-Appellant: STEPHEN V. MANNING, Spears Manning & Martini 30 LLC, Southport, CT.

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1 Appeal from a judgment of the United States District Court for the District of Connecticut 2 (Meyer, J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Defendant-Appellant Jerrard Santiago (“Santiago”) appeals a final judgment entered on 6 September 26, 2024 by the United States District Court for the District of Connecticut (Meyer, J.), 7 after Santiago pleaded guilty, pursuant to a plea agreement, to two counts of possession with intent 8 to distribute fentanyl and other controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 9 841(b)(1)(C). The district court conducted a three-day hearing pursuant to United States v. 10 Fatico, 603 F.2d 1053 (2d Cir. 1979), as contemplated in the plea agreement, and thereafter 11 concluded, based on a preponderance of the evidence, that on May 18, 2021, Santiago had 12 distributed cocaine laced with fentanyl to an individual, proximately causing that person’s death. 13 The district court thereafter granted the government’s motion for an upward departure pursuant to 14 U.S.S.G. § 5K2.1 and sentenced Santiago to a total of 96 months’ imprisonment, to be followed 15 by three years of supervised release. On appeal, Santiago challenges the procedural and 16 substantive reasonableness of his sentence. We assume the parties’ familiarity with the 17 underlying facts, the procedural history of the case, and the issues on appeal, which we reference 18 only as necessary to explain our decision to AFFIRM. 19 We review sentences for reasonableness—“a particularly deferential form of abuse-of- 20 discretion review.” United States v. Davis, 82 F.4th 190, 195 (2d Cir. 2023) (citation omitted). 21 This standard of review applies “both to the procedures used to arrive at the sentence (procedural 22 reasonableness) and to the length of the sentence (substantive reasonableness).” Id. at 195-96 23 (citation omitted). We review de novo questions of law, “including our interpretation of the

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1 Guidelines,” and review for clear error questions of fact. United States v. Yilmaz, 910 F.3d 686, 2 688 (2d Cir. 2018). 3 Santiago argues that his sentence was procedurally unreasonable because the district court 4 clearly erred in determining that the government demonstrated “by a preponderance of the 5 evidence that on May 18, 2021, Santiago knowingly distributed cocaine to [the victim] that was 6 laced with fentanyl,” App’x at 697, and that “he knowingly risked death” when he distributed the 7 cocaine, Sp. App’x at 182. He further contends that the district court abused its discretion by 8 failing fully to consider the factors set forth in U.S.S.G. § 5K2.1. On both counts, we disagree. 9 Under U.S.S.G. § 5K2.1, a sentencing court may “increase the sentence above the 10 authorized guidelines,” if “death resulted.” Section 5K2.1 provides that:

11 Loss of life does not automatically suggest a sentence at or near the 12 statutory maximum. The sentencing judge must give 13 consideration to matters that would normally distinguish among 14 levels of homicide, such as the defendant’s state of mind and the 15 degree of planning or preparation. Other appropriate factors are 16 whether multiple deaths resulted, and the means by which life was 17 taken. The extent of the increase should depend on the 18 dangerousness of the defendant’s conduct, the extent to which 19 death or serious injury was intended or knowingly risked, and the 20 extent to which the offense level for the offense of conviction as 21 determined by the other Chapter Two guidelines, already reflects 22 the risk of personal injury. For example, a substantial increase 23 may be appropriate if the death was intended or knowingly risked 24 or if the underlying offense was one for which base offense levels 25 do not reflect an allowance for the risk of personal injury, such as 26 fraud. 27 28 U.S.S.G. § 5K2.1. 1 In order to determine whether Section 5K2.1 is applicable, “the court should

29 use the preponderance of evidence standard to determine whether death resulted.” United States

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On November 1, 2025, Section 5K2.1 was deleted along with most other departure provisions.

See U.S.S.G. app. C, amend. 836 (2025). “[A]mendments to the Guidelines that constitute a substantive change to, rather than a clarification of, a Guideline do not apply on direct review,” and Santiago does not argue that we should consider amendment 836 in this appeal. United States v. Rivernider, 828 F.3d 91,

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1 v. Cordoba-Murgas, 233 F.3d 704, 710 (2d Cir. 2000). If that standard is met, “the court may 2 depart upward.” Id. “[T]he questions whether to depart and if so, by how much, are largely left 3 to the sentencing court’s discretion. Id. 4 We discern no clear error in the district court’s factual determination that the government 5 demonstrated by a preponderance of the evidence that Santiago caused the victim’s death by 6 distributing cocaine laced with fentanyl to the victim. The evidentiary record supports this 7 conclusion. The surveillance videos at the casino captured Santiago and the victim walking into 8 the bathroom together and remaining there for seven minutes. The victim saved Santiago’s cell 9 phone number under the alias “Ice,” which is a slang term for cocaine. Approximately 15 10 minutes after his encounter with Santiago, the victim collapsed and lay unconscious on the floor. 11 Although Santiago stood nearby, he did not reach out to help the victim, but instead, walked off. 12 The government’s expert witness explained that the victim’s collapse was consistent with an opioid 13 overdose. 14 Santiago, moreover, was intimately aware of the risks of the adulteration of illicit 15 substances. By his own admission, he was a “prolific” crack dealer for over twenty years. 16 Despite his personal struggles with addiction and losing two of his family members and his best 17 friend to fatal fentanyl overdoses, Santiago continued to deal fentanyl years after the victim’s fatal 18 overdose. Viewed in its entirety, the record easily supports the district court’s conclusion that 19 Santiago knowingly risked the victim’s death by distributing cocaine laced with fentanyl to the 20 victim. See Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985) (“If the district 21 court’s account of the evidence is plausible in light of the record viewed in its entirety, the court

111 n.8 (2d Cir. 2016). We accordingly analyze Santiago’s sentencing challenges under the Guideline provisions applicable at the time of his sentencing, including Section 5K2.1.

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1 of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it 2 would have weighed the evidence differently.”). 3 As to its consideration of the remaining factors set forth in Section 5K2.1, the sentencing 4 court considered the provision closely and “in detail.” Special App’x at 181. The court 5 considered “the defendant’s state of mind,” the victim’s death, and “the means by which [his] life 6 was taken.” U.S.S.G. § 5K2.1. Id. at 181-82. It also weighed just punishment, specific 7 deterrence, and similar sentences in imposing an upward departure. Id. at 182-83. In sum, the 8 district court fully considered the factors set forth in Section 5K2.1 when it applied a 10-level 9 upward departure to Santiago’s sentence. And given the district court’s decision to “impose the 10 same sentence as an upward departure or an upward variance” and to “impose the same sentence 11 irrespective of whether [the court] granted a Fernandez departure as requested by the defense,” 12 any procedural error from the upward departure would, in any event, be harmless. 13 Santiago also challenges the substantive reasonableness of his sentence because the district 14 court imposed a substantially higher sentence (96 months) than the recommended Guidelines range 15 (27 to 33 months). We review the substantive reasonableness of a sentence under an abuse of 16 discretion standard. United States v. Rigas, 583 F.3d 108, 121 (2d Cir. 2009). We will set aside 17 a sentence only in “exceptional cases,” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008), 18 where the sentence is “shockingly high, shockingly low, or otherwise unsupportable as a matter of 19 law,” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (citation omitted). Here, 20 we discern no basis for upsetting the district court’s sentencing determination. 21 Although we recognize that the district court imposed a sentence that trebles the 22 recommended Guidelines range, we decline to hold that the district court abused its discretion in 23 doing so. The court explained that its upward departure was based on Santiago’s lengthy criminal

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1 history. It pointed to Santiago’s “lack of a human reaction” to the victim’s collapse and his failure 2 to help the young man. Special App’x at 177. Santiago’s callous reaction, paired with the fact 3 that he went back to drug dealing, also led the district court to impose a higher sentence. 4 Considering these circumstances, the district court’s 96 month sentence was neither “shockingly 5 high, shockingly low, [n]or otherwise unsupportable as a matter of law.” See United States v. 6 Park, 758 F.3d 193, 200 (2d Cir. 2014) (citation omitted). 7 * * * 8 We have considered Santiago’s remaining arguments and find them to be without merit. 9 Accordingly, we AFFIRM the judgment of the district court.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk