U.S. v. Cotto, Docket No. 02-1344.

• Citation: 347 F.3d 441
• Decision Date: 23 October 2003
• Docket Number: Docket No. 02-1344.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: UNITED STATES of America, Appellant, v. Carmen COTTO, a/k/a "CC," Defendant-Appellee, Frank Estrada, a/k/a "Terminator," a/k/a "Big Dog," a/k/a "Frankie Estrada," a/k/a "Mustard"; Edward Estrada, a/k/a "French Fry," a/k/a "Fry"; Isaias Soler, a/k/a "Eso"; Nelson Carrasquillo; William Rodriguez, a/k/a "Billy Rodriguez," a/k/a "William Gomez," a/k/a "Billy Gomez," a/k/a "Billy the Kid"; Felix Dejesus, a/k/a "Dino"; Charles Dejesus, a/k/a "Chino"; Edward Lawhorn, a/k/a "Fat Boy"; Yamarr Shipman, a/k/a "Country," a/k/a "Mar"; Michael Hilliard, a/k/a "Mizzy"; Pablito Cotto; Rosario Cotto, a/k/a "Sato"; Benito Rosario; Ricardo Rosario, a/k/a "Q"; Jermaine Jenkins, a/k/a "Fats"; Makene Jacobs, a/k/a "Madee"; Joseph Butler, a/k/a "Pee Wee"; Viviana Jimenez; Kelvin Vereen, a/k/a "Nino"; Felipe Santana, a/k/a "Omar Soto"; Tamarius Maner, a/k/a "Trigger"; Gloria Vargas; Hector Cruz, a/k/a "Casper"; Hector Gonzalez, a/k/a "June Bug"; Enrique Martinez, a/k/a "Ricky Zapata," Defendants.

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347 F.3d 441

UNITED STATES of America, Appellant, v. Carmen COTTO, a/k/a "CC," Defendant-Appellee Frank Estrada, a/k/a "Terminator," a/k/a "Big Dog," a/k/a "Frankie Estrada," a/k/a "Mustard"; Edward Estrada, a/k/a "French Fry," a/k/a "Fry"; Isaias Soler, a/k/a "Eso"; Nelson Carrasquillo; William Rodriguez, a/k/a "Billy Rodriguez," a/k/a "William Gomez," a/k/a "Billy Gomez," a/k/a "Billy the Kid"; Felix Dejesus, a/k/a "Dino"; Charles Dejesus, a/k/a "Chino"; Edward Lawhorn, a/k/a "Fat Boy"; Yamarr Shipman, a/k/a "Country," a/k/a "Mar"; Michael Hilliard, a/k/a "Mizzy"; Pablito Cotto; Rosario Cotto, a/k/a "Sato"; Benito Rosario; Ricardo Rosario, a/k/a "Q"; Jermaine Jenkins, a/k/a "Fats"; Makene Jacobs, a/k/a "Madee"; Joseph Butler, a/k/a "Pee Wee"; Viviana Jimenez; Kelvin Vereen, a/k/a "Nino"; Felipe Santana, a/k/a "Omar Soto"; Tamarius Maner, a/k/a "Trigger"; Gloria Vargas; Hector Cruz, a/k/a "Casper"; Hector Gonzalez, a/k/a "June Bug"; Enrique Martinez, a/k/a "Ricky Zapata," Defendants.

Docket No. 02-1344.

United States Court of Appeals, Second Circuit.

Argued: August 7, 2003.

Decided: October 23, 2003.

COPYRIGHT MATERIAL OMITTED

James I. Glasser, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney for the District of Connecticut, Jeffrey A. Meyer, Assistant United States Attorney, on the brief), New Haven, CT, for appellant.

Jeremy N. Weingast, Hartford, CT, for defendant-appellee.

Before: JACOBS and SOTOMAYOR, Circuit Judges.^*

SOTOMAYOR, Circuit Judge.

The United States of America appeals from the judgment of the District Court for the District of Connecticut (Stefan R. Underhill, Judge) entered May 3, 2002, sentencing defendant-appellee Carmen Cotto to twenty-four months' imprisonment upon a guilty plea to one count of conspiracy to engage in witness tampering/obstruction of justice in violation of 18 U.S.C. §§ 371 and 1512(b)(3). The district court granted a downward departure from the statutory maximum of sixty months' imprisonment pursuant to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 5K2.12.¹ Section 5K2.12 permits a downward departure from the applicable Guidelines range "[i]f the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense." U.S.S.G. § 5K2.12. The district court found that Cotto conspired with co-defendant Isaias Soler to obstruct justice because she feared for her safety if she refused. The court also found that Cotto's fear was based not on any specific threat made by Soler, but rather on her knowledge of him as "someone who is frequently engaged in criminal activity and who has murdered someone in [her] presence." We hold that a generalized fear based solely on the defendant's knowledge of a third party's criminal history is insufficient to constitute serious coercion or duress under § 5K2.12. We therefore vacate the judgment of the district court and remand for resentencing.

BACKGROUND

On January 3, 2002, Carmen Cotto pleaded guilty to one count of conspiracy to engage in witness tampering/obstruction of justice in violation of 18 U.S.C. §§ 371 and 1512(b)(3). The charging indictment detailed a larger criminal enterprise involving twenty-one other defendants, accusing them of multiple narcotics conspiracies, murder in furtherance of a racketeering enterprise, assault, firearms crimes, and bank fraud. For her part, Cotto admitted to attempting, along with her friend and codefendant Isaias Soler, to conceal Soler's role in the murder of Raphael Garcia, another friend, by persuading Amelia Perreira to identify her boyfriend, David Perez, as Garcia's murderer.

On the night of August 22, 1998, Cotto was socializing at a Bridgeport, Connecticut nightclub with Garcia and two other women. In the early morning hours of August 23, the four of them left the nightclub in a car leased to Cotto. Another car, parked so as to block the street, forced Cotto's car to a halt. According to Cotto, Garcia began yelling for the women to run from the car while he reached for a gun. The women ran from the vehicle while Soler, later identified as the driver of the blocking car, fired several shots at Garcia, killing him.

Upon arriving at the scene, the police questioned Cotto and the other two women, all of whom denied knowing the identity of the shooter (although Cotto later admitted that she knew Soler was the shooter at the time of the shooting). The police also searched Cotto's vehicle for evidence, finding two plastic bags of marijuana and a loaded Raven .25 caliber pistol with an altered serial number, concealed in a green make-up case placed in the center console. Cotto admitted that the make-up case was hers.²

Thereafter, codefendants Soler and Frank Estrada agreed to frame someone for the murder of Garcia. On September 17, 1998, Cotto joined this conspiracy. According to Cotto, Amelia Perreira asked Cotto to set up a meeting with Soler to obtain bail money for Perez, who had been arrested that day on drug-related charges. Cotto brought Perreira to meet Soler and, together with Soler, attempted to persuade Perreira to assist the conspirators in disseminating the story that Perez had killed Garcia.

Cotto pleaded guilty to one count of conspiracy to obstruct justice, and the district court sentenced her on April 29, 2002.³ The district court found that Cotto's applicable Guidelines range was 87 to 108 months, but her term of imprisonment was limited to the statutory maximum of sixty months. See 18 U.S.C. § 371; U.S.S.G. § 5G1.1(a). The only contested issue at sentencing was Cotto's motion for a downward departure pursuant to U.S.S.G. § 5K2.12. Cotto argued that a departure was warranted because she had feared for her and her family's safety, had she refused to cooperate with Soler's attempt to frame Perez for Garcia's murder. Cotto based her fear not on any explicit or implicit threat from Soler, but on her knowledge of Soler's criminal conduct and her first-hand knowledge of Soler's murder of Garcia. Cotto also claimed that her fear increased when she learned, in January 1999, that a co-worker and her child were killed after the child had witnessed a murder. The government countered that (1) any fear Cotto may have felt as a result of witnessing Garcia's murder could not, as a matter of law, constitute serious coercion or duress justifying a departure under § 5K2.12, and (2) Cotto could not have been under serious coercion or duress at the time of her meeting with Soler and Perreira because she voluntarily associated with Soler both before and after the Garcia shooting.

The district court granted the departure, reasoning that Cotto's relationship with Soler "cuts both ways":

It suggests perhaps that you wouldn't have been intimidated by him, wouldn't have been coerced or felt duress, a threat from him. On the other hand, knowledge of someone who is frequently engaged in criminal activity and who has murdered someone in your presence ... can emphasize the fear that one might feel toward an individual like that ....

Finding that Soler's murder of Garcia caused Cotto "to feel severe duress and perceive an imminent threat to [her] personal safety or that of [her] family," the district court departed from the sixty-month statutory maximum and imposed a sentence of twenty-four months' incarceration.

DISCUSSION

On appeal, the government argues that the district court erred by interpreting "serious coercion" to include Cotto's perception, based solely on her knowledge of Soler's criminal history, that Soler might harm her or her family if she refused to participate in the conspiracy to obstruct the investigation of Garcia's murder. We agree.

Prior to April 30, 2003, we reviewed a district court's decision to depart downward for abuse of discretion. See, e.g., United States v. Smith, 331 F.3d 292, 293 (2d Cir.2003). As of April 30, 2003, the effective date of the PROTECT Act, however, Congress now requires that we review de novo whether a downward departure is "justified by the facts of the case." See PROTECT Act § 401 (codified at 18 U.S.C. § 3742(e) (2003)). We have yet to resolve whether this new standard of review applies to appeals pending before April 30, 2003. Because we would find error even under the more deferential abuse of discretion standard, we do not resolve this issue here. Cf. Smith, 331 F.3d at 293 n. 1.

A district court may not depart from an applicable Guidelines range absent "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b), quoted in U.S.S.G. § 5K2.0. Thus, a downward departure is not warranted unless a circumstance of the offense renders it outside the heartland of the offenses covered by the guideline range. Koon v. United States, 518 U.S. 81, 93-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The defendant bears the burden of proving that he or she is entitled to a downward departure. See, e.g., United States v. Silleg, 311 F.3d 557, 564 (2d Cir.2002).

Section 5K2.12 of the Guidelines permits a district court to depart downward from an applicable Guidelines range "[i]f the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense." U.S.S.G. § 5K2.12. The Guidelines also provide, however, that duress is a discouraged basis for departure because it is "not ordinarily relevant [to] whether a sentence should be outside the applicable guideline range." Id. § 5H1.3 & pt. H intro. cmt. Thus, duress must be present to an "exceptional degree" to warrant a downward departure. Koon, 518 U.S. at 93-96, 116 S.Ct. 2035. Accordingly, § 5K2.12 provides that "[o]rdinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury...