UNITED STATES OF AMERICA v. NELSON NOLASCO AKA MENOR AKA ANGEL SOTO CABAN

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United States Court of Appeals, Second Circuit.

UNITED STATES OF AMERICA, Appellee, v. Juan Bonilla, AKA A.D.A. Pinto, Domingo Fernandez, Yoel Pichardo, AKA Yoel Alberto Pichardo Gonzalez, AKA Yoel Alberto Gonzalez Pichardo, Nassir Mateo, Jose Encarnacion, Sandy Beato, Juan Espinal, Gabriel Cano-Martinez, Eloys Fernandez, AKA Chamboa, Pedro Fernandez, AKA El Mono, Yudris Fernandez, AKA Gudris, Javier Hernandez, AKA Rookie, Luis Perez, Randall Martinez, AKA Randall, AKA Jose Rodriguez, Wilton Rosario, AKA Winston Rosario, Henry Fiorentino, Francisco Prado, AKA El Viejo, AKA FNU LNU, Marcos Rodriguez, AKA Markito, Emmanuel Tavarez, Jose Antonio Lopez Santiago, AKA Amarante, Miguel Tavares, AKA Lepido, Nolberto Morel, AKA Boonie, Jose Tejada, Defendants, NELSON NOLASCO, AKA MENOR, AKA ANGEL SOTO-CABAN, Defendant-Appellant.

16-2068

    Decided: November 09, 2017

Present: DEBRA ANN LIVINGSTON, DENNY CHIN, Circuit Judges, JOHN G. KOELTL, District Judge.*For Defendant-Appellant: Randall D. Unger, Esq., Bayside, NY. For Appellee: Bridget M. Rohde, Acting United States Attorney, Jo Ann M. Navickas & Alexander Solomon, Assistant United States Attorneys, Eastern District of New York, Brooklyn, NY.

_____________________________________

Defendant-Appellant Nelson Nolasco (“Nolasco”) pleaded guilty to one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (“the Hobbs Act count”), one count of conspiracy to distribute heroin, cocaine, MDMA, and marijuana, in violation of 21 U.S.C. §§ 841 and 846 (“the distribution count”), and one count of use of a firearm in relation to a crime of violence, in violation of 18 U.S.C § 924(c) (“the firearm use count”). On June 16, 2016, the United States District Court for the Eastern District of New York (Glasser, J.) held a sentencing hearing. During that hearing, the court noted that both the distribution count and the firearm use count provided for mandatory minimum sentences. It calculated Nolasco's mandatory sentence for the distribution count to be 240 months, and his mandatory sentence for the firearm use count to be 120 months, for a total of 360 months. After explaining that there is no mandatory minimum sentence for the Hobbs Act count, the court determined that Nolasco's sentence for that count should be 60 months, and it sentenced Nolasco principally to 420 months' imprisonment. The sole question for our review is whether the Supreme Court's recent decision in Dean v. United States, 137 S. Ct. 1170 (2017), requires us to vacate the district court's sentencing decision for the Hobbs Act count and remand for resentencing.1 We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

In Dean, the Supreme Court held that when a defendant is facing two consecutive sentences—one for a predicate offense, which does not carry a mandatory minimum sentence, and one for an offense committed under § 924(c), which does carry a mandatory minimum sentence—the court may consider the defendant's § 924(c) sentence when deciding the proper time to be served for the predicate offense. See id. at 1176–77. Dean may have effectively overruled our own circuit's precedent, which had held to the contrary. See United States v. Chavez, 549 F.3d 119, 135 (2d Cir. 2008). We have yet to decide if Dean abrogated our decision in Chavez. We need not do so here, however, because even assuming arguendo that it did, there is no basis to disturb Nolasco's sentence.

Nolasco did not raise below the issue of whether the district court could consider Nolasco's sentence for the firearm use count in determining the appropriate sentence for the Hobbs Act count. Accordingly, we review his sentencing claim pursuant to Dean for plain error. See Fed. R. Crim. P. 52(b); United States v. Boyland, 862 F.3d 279, 288 (2d Cir. 2017). Under this standard, we may vacate the decision only if the defendant establishes the following four criteria: “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Boyland, 862 F.3d at 288–89 (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)) (internal quotation marks omitted). In the past, we have applied “modified plain error” review when the error in question resulted from a supervening decision. United States v. Prado, 815 F.3d 93, 102 (2d Cir. 2016). Under this “modified” rule, the government bears the burden of proving that the error did not prejudice the defendant. See id. We have expressed doubt in recent years about the continued viability of the “modified plain error” rule, given the Supreme Court's decision in Johnson v. United States, 520 U.S. 461 (1997). Prado, 815 F.3d at 102–03. However, “[b]ecause the outcome is the same regardless of whether the government or [Nolasco] bear [s] the burden of persuasion, we need not decide definitively here whether Johnson sounded the modified plain error rule's death knell.” Id. at 103.

Simply put, even assuming arguendo that the district court made a Dean error, and even assuming arguendo that the Dean error was “clear,” we are convinced that the error did not prejudice Nolasco. See Boyland, 862 F.3d at 288–89. In other words, even if the district court had known that it could consider Nolasco's mandatory sentence for the firearm use count when deciding Nolasco's sentence for the Hobbs Act count, there is no basis to conclude that it would have imposed a more lenient sentence. The district court judge made clear that Nolasco's “conduct ha[d] been extremely violent over a period of years,” and included “[b]reaking into homes, forcing his way into homes,” and “[s]hooting two other persons from whom he obtained 10 kilograms of drugs that he didn't want to pay for.” A349. The court expressly told Nolasco he deserved to be sentenced “quite severely ․ because of the very, very serious crimes that [he] committed.” A352. In fact, the judge suggested that he would have sentenced Nolasco to more than 60 months for the Hobbs Act count, if doing so would not have created a sentencing disparity between Nolasco and his co-conspirators. This case is therefore quite unlike Dean, where the sentencing judge explicitly stated that he would have given the petitioner a lesser sentence if his circuit's interpretation of § 924(c) did not prohibit him from doing so. See Dean, 137 S. Ct. at 1175. In short, there is no evidence that the district court judge's awareness of the Dean rule would have affected his sentencing decision, and there is considerable basis to conclude it would have had no bearing at all. Accordingly, we conclude that, even assuming arguendo that the government bore the burden on the issue of prejudice, the government has successfully demonstrated on this record that Nolasco suffered no prejudice. See Boyland, 862 F.3d at 288–89.

* * *

We have considered Nolasco's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

FOOTNOTES

1.   Nolasco also insists that his sentence was procedurally unreasonable because the district court “fail[ed] to give proper consideration” to the factors outlined in 18 U.S.C. § 3553(a). Br. for Def.-Appellant at 20. We do not address the merits of this argument, because Nolasco waived the issue by not discussing it beyond a single sentence at the end of his brief. See Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19, 40 n.14 (2d Cir. 2012) (“This one-sentence argument is insufficient to raise [an] issue for review before this Court.”); Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).

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