United States v. Sean Figaro

• Court: Court of Appeals for the Third Circuit
• Decided: June 26, 2024
• Docket: 22-2067
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-2067 _______________

UNITED STATES OF AMERICA

v.

SEAN FIGARO, Appellant _______________

On Appeal from the United States District Court For the District of New Jersey (D.C. No. 1-17-cr-00021-001) District Judge: Honorable Renée Marie Bumb _______________

Submitted Under Third Circuit L.A.R. 34.1(a) June 24, 2024

Before: JORDAN, McKEE, and AMBRO, Circuit Judges

(Filed: June 26, 2024) _______________

OPINION ∗ _______________

JORDAN, Circuit Judge.

Sean Figaro was convicted on drug, gun, and witness-tampering charges. He

appeals his conviction and sentence. We will affirm.

∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. I. FACTS

Figaro sold illegal drugs using a hotel room in Atlantic City, New Jersey as his

base. Law enforcement was alerted to his activities, and, pursuant to a warrant, 1 federal

agents searched the room. Figaro was present, along with a young woman, Selena Butler.

In the room was a locked safe that did not belong to the hotel. When the agents broke it

open, they found a loaded gun with a defaced serial number, heroin and cocaine, and drug

packaging materials. The agents arrested Figaro. They later searched his cell phone

pursuant to a warrant. The phone contained texts between Figaro and multiple

individuals, wherein he referred to himself as a “dealer” and the operator of a “drug

dealership.” (Supp. App. at 231-32.)

Following his arrest, Figaro sought to prevent Butler from testifying against him.

He had his sister call Butler a “rat” on his Facebook account, and he had her send

Butler’s picture around with the message, “this is the bitch that’s snitching.” (Supp. App.

at 537, 551-52.) Incongruously, he also tried to sweet-talk Butler, using his sister to tell

her he loved her and would buy her things. The tactics worked – Butler became

“[s]cared” to face Figaro and “fled from New Jersey” until she was arrested in

Indianapolis for “[u]nlawful flight to avoid prosecution and testimony[.]” (Supp. App. at

393.)

1 The warrant was directed, inter alia, at searching for drugs, records “pertaining to the illegal possession” of drugs, and other items “reasonabl[y] associated with the possession” of drugs. (D.I. 33-2 at 8 (facsimile of signed warrant).) 2 A federal grand jury charged Figaro with possession with intent to distribute

heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i);

witness tampering, in violation of 18 U.S.C. § 1512(b)(1); conspiracy to commit witness

tampering, in violation of 18 U.S.C. § 1512(k); and unlawful possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). He pled not guilty.

At the conclusion of a four-day trial, the jury returned a guilty verdict on all five

counts. After trial, Figaro began to represent himself. Probation recommended a

guidelines sentence of between 360 months and life based on Figaro’s extensive criminal

history (category VI, the highest there is) and his status as a career offender. The career-

offender designation was based upon two prior drug convictions and a robbery-bodily

injury conviction.

Figaro sent numerous letters to the Court, objecting to his conviction and the

presentence investigation report. The District Court discussed each letter with Figaro on

a video conference, denying the objections in order. Later, during his sentencing hearing,

Figaro frequently interrupted the Court and addressed it disrespectfully. Still, the Court

considered every additional letter filed by Figaro and discussed his handwritten

objections to the presentence investigation report. Figaro also accused the Court of

meeting with the government and his stand-by counsel to discuss his case without him.

The Court assured him, “we were not discussing the merits of the case.” (Supp. App. at

1054.)

3 Before the Court sentenced him, Figaro presented a lengthy apology to his victims,

which the Court acknowledged “was authentic[.]” (Supp. App. at 1096.) The Court

addressed the 18 U.S.C. § 3553(a) factors, calling the crimes serious but acknowledging

that Figaro’s childhood was “really, really horrible” (Supp. App. at 1097), and imposed a

bottom of the guidelines range sentence of 360 months’ imprisonment.

Figaro timely appealed his conviction and sentence, and we granted his request to

proceed pro se. On appeal, he continued his practice of filing multiple letters, and we

admonished him to include all his arguments in one brief. He then filed an informal pro

se brief. (3d Cir. D.I. 69 (“Opening Br.”).) He nevertheless moved to have his letters

considered as part of his merits argument. We denied that motion but permitted him to

file an amended brief with any argument he wished to raise. He decided to “stand on the

brief” he had filed earlier. (3d Cir. D.I. 78.) Figaro also filed a late reply brief, which we

considered on the merits to the extent his arguments were not foreited.

II. DISCUSSION 2

Figaro’s brief does not cite to the record or to any cases. Usually, to be preserved,

all arguments must be supported by “the reasons for them, with citations to the authorities

and parts of the record on which the appellant relies[.]” Fed. R. App. P. 28(a)(8)(A). But

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). When reviewing the sufficiency of the evidence underlying a criminal conviction, we ask “whether any reasonable juror could find the defendant guilty beyond a reasonable doubt.” United States v. Jacobs, 21 F.4th 106, 109 (3d Cir. 2021). We review the substantive reasonableness of the District Court’s sentence for abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). 4 we construe pro se pleadings liberally, “especially when dealing with imprisoned pro se

litigants like” Figaro. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (internal quotation

marks omitted). We may help flesh out pro se litigants’ legal arguments, and we

commend the government for doing so as well. Still, we cannot allow such litigants to

“flout procedural rules[,]” id., including the typical requirement to file a single opening

brief, see Fed. R. App. P. 28(c) (“Unless the court permits,” an appellant may file only an

opening brief and a reply brief). Thus, we will focus on the arguments Figaro made in

his informal brief. To the extent he has other arguments they are forfeited. See Emerson

v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002) (per curiam) (applying forfeiture rules

to pro se litigant).

We construe Figaro’s arguments as challenges to both his convictions and

sentence. None of the arguments have merit. He first protests the fact that federal

authorities began investigating him for sex trafficking but only tried him on drug and gun

charges. Such decisions, however, lie within prosecutorial discretion. See Bordenkircher

v. Hayes, 434 U.S. 357, 364 (1978) (stating that a prosecutor has discretion over

“whether or not to prosecute, and what charge to file”). Figaro also contends that there

was no warrant allowing a search of the locked safe. But, since the safe reasonably

“could conceal items of the kind portrayed in the warrant[,]” United States v. Dyer, 54

F.4th 155, 159 (3d Cir. 2022) (quoting United States v. Crooker, 688 F.3d 1, 8 (1st Cir.

2012)), the agents had authority to open it once they determined that the safe likely

belonged to Figaro.

5 Figaro also contends that his sister acted on her own volition in intimidating

Butler, so his witness-tampering conviction is unsupported by the evidence. Yet the jury

heard Figaro’s sister testify that she did what she did at Figaro’s command, and we do not

“decide the credibility of the witnesses” on appeal. United States v. Reyeros, 537 F.3d

270, 277 (3d Cir. 2008). Therefore, viewing the evidence in the light most favorable to

the government, we conclude that a “rational juror could have found the elements of the

crime beyond a reasonable doubt.” Id.

Turning to his sentence, Figaro argues that the District Court consistently ruled

against him at sentencing because he “didn’t get along with the judge,” constantly

interrupted her, and flooded the docket with letters. (Opening Br. at 1.) Those arguments

echo complaints he made at sentencing. The record, however, belies his assertions. In

fact, the District Court considered every motion Figaro filed, duly ruled upon them, and

consistently allowed him to argue disputed issues, despite frequent displays of disrespect

and his interruptions. Tellingly, he does not explain how any of the Court’s rulings were

erroneous. We have reviewed the record and find no reason to believe the Court had

“personal bias or prejudice” against Figaro. See 28 U.S.C. § 144 (describing the grounds

for removing a biased judge).

Figaro also accuses the District Court of meeting with the government and his

stand-by counsel behind closed doors. It is no doubt true that proceedings “must satisfy

the appearance of justice,” Concrete Pipe & Prod. of California, Inc. v. Constr. Laborers

Pension Tr. for S. California, 508 U.S. 602, 618 (1993), but a closed-door ex parte

meeting does not necessarily raise such a concern, see In re Kensington Int’l Ltd., 368

6 F.3d 289, 310 (3d Cir. 2004) (a meeting is disqualifying only if it is “on the merits, or

procedures affecting the merits” (quoting Code of Conduct for U.S. Judges Canon 3

§ A(4) (2003))). Here, we have no reason to doubt the Court’s candor in assuring Figaro

that the merits of his case were not discussed during the meeting about which he

complains.

Next, Figaro attacks the reasonableness of his sentence, claiming he “was

target[ed] as a monster to give [him] a lengthy sentence[,]” that his sentence was

“unusually long[,]” and that he has had a hard life and “wants a second chance at

freedom.” (Opening Br. at 2, 5-6.) Figaro bears the burden of showing “no reasonable

sentencing court would have imposed the same sentence” for the reasons provided by the

Court. United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Sentences

within the guidelines range – as Figaro’s sentence is – are presumed reasonable. United

States v. Handerhan, 739 F.3d 114, 124 (3d Cir. 2014). Here, the District Court

considered Figaro’s mitigating factors, such as his difficult childhood, educational

activities in prison, and “authentic” apology, and weighed them against the other factors

outlined in § 3553(a), noting the seriousness of the crimes and Figaro’s extensive

criminal history. (Supp. App. at 1096.) There was no abuse of discretion in the sentence

meted out.

Finally, Figaro mentions the First Step Act of 2018, Pub L. No. 115-391, 132 Stat.

5194, without describing its relevance. He moved for a sentence reduction under 18

U.S.C. § 3582(c)(1)(A)(i), and we assume he is trying to make the same motion here. He

has not shown, however, that he exhausted his administrative remedies, as required by the

7 statute. Consequently, we may not consider his arguments in this regard. United States

v. Raia, 954 F.3d 594, 596-97 (3d Cir. 2020) (explaining that an inmate must first file his

motion with the Bureau of Prisons and may only petition the district court after thirty

days or an “adverse decision by” the Bureau).

To the extent that Figaro’s brief raises other issues, they are “ill-developed” or

“not properly raised” and thus forfeited, as are arguments raised for the first time in his

reply brief. Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136,

145-46 (3d Cir. 2017).

III. CONCLUSION

For the foregoing reasons, we will affirm Figaro’s convictions and the sentence

imposed by the District Court.