United States v. Serrano

368 F. App'x 221

• Court: Court of Appeals for the Second Circuit
• Decided: March 4, 2010
• Docket: 08-2250-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Miguel Angel Serrano challenges as procedurally unreasonable the seventy-month sentence of imprisonment imposed upon him by the district court following his plea of guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.

Serrano contends that his sentence is procedurally unreasonable because the district court failed to adjust his Guidelines range downward pursuant to U.S.S.G. § 3B 1.2(b) based on the minor role he claims to have played in the conspiracy. A Section 3B1.2 adjustment is appropriate only if the defendant is “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt. n.3(A). The defendant seeking the adjustment has the burden of proving entitlement to it by the preponderance of the evidence. United States v. Yu, 285 F.3d 192, 200 (2d Cir.2002). There was no error in the district court’s conclusion that Serrano failed to satisfy this burden. It was Serrano who procured and drove the van in which the transaction took place, and it was Serrano who showed the drugs to the prospective customer, a confidential informer. The only other participant in the conspiracy arranged the deal with the customer, rode in the car, and handed the drugs to the customer. Serrano also bragged to the customer that he had buyers for large quantities of cocaine. While Serrano argues that the crime was completed before he displayed the drugs, it certainly was not over in defendants’ minds because they had not yet been paid. Therefore, both Serrano’s actions and his statement could reasonably be viewed as playing a significant role in the successful completion of the crime, and the district court correctly concluded that his role was not “substantially less culpable than the average participant” in a two-person drug conspiracy. See United States v. Carpenter, 252 F.3d 230, 235 (2d Cir.2001) (internal quotation and emphasis omitted).

Serrano also argues that vacatur is compelled because the district court failed to consider Serrano’s relationship with his co-conspirator or his knowledge of the scope of the conspiracy as required by Yu, 285 F.3d at 200. However, absent evidence to the contrary, we will assume the district court’s understanding of the relevant factors and its consideration of them. See U.S. v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir.2008) (in the context of Section 3553(a) sentencing factors, concluding that “we will not assume a failure of consideration simply because a district court rails to enumerate or discuss each Section 3553(a) factor individually.”) Further, our reading of the sentencing colloquy is that the district court did consider all relevant factors albeit without according them the labels set out in Yu.

Therefore, we affirm the judgment of the district court.