Opinion
No. 09-4343-cr.
November 23, 2010. As Amended December 2, 2010.
Appeal from the United States District Court for the Eastern District of New York (Sandra L. Townes, District Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment, entered on August 10, 2009, is AFFIRMED.
Lawrence Gerzog, New York, NY, for Appellant.
Justin D. Lerer, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for Appellee.
PRESENT: AMALYA L. KEARSE, ROBERT D. SACK and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Defendant-Appellant Robinson Naranjo-Ramirez was convicted, following a guilty plea, of conspiracy to import heroin in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(A), and 963. The district court sentenced Naranjo-Ramirez to 150 months of imprisonment, followed by five years of supervised release, and a $100 special assessment. Naranjo-Ramirez now appeals, arguing that his sentence was procedurally unreasonable. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
The Presentence Investigation Report ("PSR") concluded that Naranjo-Ramirez was the leader of a conspiracy involving at least eleven participants, resulting in a four-point aggravating role adjustment. At sentencing, when asked by the district court whether the government could prove the leadership enhancement proposed in the PSR was justified, the government indicated that it had previously represented to Naranjo-Ramirez that it would not argue for such an adjustment, but that it could prove the leadership role if the court ordered a hearing. The district court noted that it had an independent obligation to determine the advisory guideline range and to consider the factors pursuant to 18 U.S.C. § 3553(a), and it ordered a hearing to determine whether such an adjustment was appropriate. The parties eventually stipulated to a two-level adjustment, and no hearing was held. Naranjo-Ramirez now argues that his sentence is unreasonable because the district court lacked the authority to order the hearing.
Naranjo-Ramirez did not object when the district court ordered the hearing, and he specifically withdrew his letter objecting to the two-level stipulated enhancement at sentencing. Accordingly, we review the district court's decision to order the hearing for plain error. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007). We find no error, let alone plain error.
It was "clearly within [the] power" of the district court to "direct[] the Government to provide [it] with the pertinent information." United States v. Goodman, 165 F.3d 169, 173 (2d Cir. 1999). Further, even if we were to construe the government's prior representation in an unsuccessful plea negotiation as a binding promise, such a promise by the Government to refrain from arguing for a specific position would "not forbid the government from responding to a specific request of the court by `supply[ing] the Court with the law and the facts.`" United States v. Riera, 298 F.3d 128, 135 (2d Cir. 2002), quoting Goodman, 165 F.3d at 172. Thus, the district court committed no procedural error in ordering a hearing to determine whether or not Naranjo-Ramirez's role in the crime merited a leadership enhancement.
Naranjo-Ramirez also alleges procedural error because the district court allegedly failed to account for the "harsh" conditions of his pre-extradition confinement in Colombia's Combita prison. "[P]resentence confinement conditions may in appropriate cases be a permissible basis for downward departures." United States v. Carty, 264 F.3d 191, 196 (2d Cir. 2001) (emphasis added). However, the district judge was under no obligation to depart from the Guidelines on the basis of Naranjo-Ramirez's allegedly harsh presentence confinement conditions. This is so notwithstanding that other district court judges have invoked the unusually difficult conditions in the Combita prison in granting downward departures. See, e.g., United States v. Torres, No. 01 CR 1078, 2005 WL 2087818 at *2 (S.D.N.Y. Aug. 30, 2005).
Naranjo-Ramirez argues that, even if such a downward departure is not mandatory, the district court committed error because it "failed to consider" the harsh conditions at Combita. There is a "strong presumption that a sentencing judge has taken properly presented arguments into account and considered all the § 3553(a) factors in the course of imposing a sentence." United States v. Fernandez, 443 F.3d 19, 34-35 (2d Cir. 2006). Naranjo-Ramirez has failed to overcome this presumption.
In the instant case, the district judge specifically noted that she had reviewed the defense's July 29, 2009 letter, which discussed the conditions at Combita, and Naranjo-Ramirez's attorney reiterated the harshness of the conditions there during the very hearing at which the district judge imposed Naranjo-Ramirez's sentence. The "absence of explicit discussion" of the conditions at Combita "does not overcome our strong presumption that the District Court faithfully performed its statutory obligation to consider the § 3553(a) factors." Id. at 33; see also United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010) ("[W]e never have required a District Court to make specific responses to points argued by counsel in connection with sentencing. . . ."). We therefore conclude that Naranjo-Ramirez has not overcome the presumption that the district judge properly considered his presentencing confinement conditions, even though she did not — and was not required to — specifically address those harsh conditions when imposing the sentence.
We have considered all of Naranjo-Ramirez's contentions on this appeal and have found them to be without merit. For the foregoing reasons, the judgment is AFFIRMED.