U.S. v. Cuevas

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Straub
• Citation: U.S. v. Cuevas, 496 F.3d 256 (2nd Cir. 2007)
• Decision Date: 27 July 2007
• Docket Number: Docket No. 03-1143-cr.
• Parties: UNITED STATES of America, Appellee, v. Jose CUEVAS, also known as "Chencho," also known as "Checho"; Edward Vidal, also known as "Bomb," also known as "Bam Bam," also known as "Rubio," also known as "Americano"; Alcides Hernandez, also known as "Ramon Espinosa," also known as "Alcides Sabino," also known as "Edmundo Dewindt"; Ramon Ramirez; Fausto DeJesus; Pablo Sena, Jr., also known as "Elvis"; Rafael Paz; Arelis Vidal, also known as "Lourdes Vidal"; Rigoberto Tavares, Defendants, Juan Cuevas, also known as "Juano," Defendant-Appellant.

496 F.3d 256

UNITED STATES of America, Appellee, v. Jose CUEVAS, also known as "Chencho," also known as "Checho"; Edward Vidal, also known as "Bomb," also known as "Bam Bam," also known as "Rubio," also known as "Americano"; Alcides Hernandez, also known as "Ramon Espinosa," also known as "Alcides Sabino," also known as "Edmundo Dewindt"; Ramon Ramirez; Fausto DeJesus; Pablo Sena, Jr., also known as "Elvis"; Rafael Paz; Arelis Vidal, also known as "Lourdes Vidal"; Rigoberto Tavares, Defendants Juan Cuevas, also known as "Juano," Defendant-Appellant.

Docket No. 03-1143-cr.

United States Court of Appeals, Second Circuit.

Argued: May 29, 2007.

Decided: July 27, 2007.

B. Alan Seidler, New York, NY, for Defendant-Appellant.

David C. Esseks, Assistant United States Attorney (Jennifer G. Rodgers, Assistant United States Attorney, of counsel; Michael J. Garcia, United States Attorney for the Southern District of New York, on the brief), New York, NY, for Appellee.

Before: KEARSE, STRAUB, and POOLER, Circuit Judges.

STRAUB, Circuit Judge:

Defendant-Appellant Juan Cuevas appeals from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) entered March 5, 2003, imposing a sentence under the United States Sentencing Guidelines ("Guidelines") of principally 390 months' imprisonment for conspiring to distribute and to possess with intent to distribute five kilograms or more of cocaine, to run concurrently with lesser sentences on other counts.

This Court first considered Cuevas's appeal in November 2004. At that time, we remanded the case to the District Court to develop a factual record of the circumstances surrounding Cuevas's extradition from the Dominican Republic, and to determine whether the Dominican Republic's decree granting the United States' request for extradition required limitation of Cuevas's sentence to 30 years, viz., 360 months. We deferred ruling on Cuevas's other sentencing objections until the District Court made factual findings on the extradition issue. See United States v. Cuevas, 112 Fed.Appx. 806, 807 (2d Cir. 2004).

On remand, the District Court received evidence from the parties relating to Cuevas's extradition, as well as the United States' extradition practices in general. Based on this evidence, the District Court determined that the Dominican Republic's 30-year sentencing cap did not apply to Cuevas because the United States had never agreed to such a limitation as a condition of his extradition. The District Court therefore confirmed its original sentence of 390 months' imprisonment. United States v. Cuevas, 402 F.Supp.2d 504, 507-08 (S.D.N.Y.2005).

We find no error in the District Court's factual findings or legal reasoning with respect to extradition, and therefore affirm its decision on that issue. As to the remainder of Cuevas's sentencing objections, we conclude that the District Court did not err in its Guidelines calculations and did not violate Cuevas's constitutional rights by declining to adjourn the sentencing. Nevertheless, because the sentence was imposed prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we must remand for reconsideration pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

BACKGROUND

A. Indictment and Extradition

On September 29, 1998, Juan Cuevas was indicted, along with nine other defendants, for conspiring to distribute and to possess with intent to distribute five kilograms or more of cocaine from about 1995 through the date of the indictment, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The superseding indictment, filed on April 15, 1999, added two more counts. Count two charged Cuevas and four others with conspiracy to launder money, in violation of 18 U.S.C. §§ 1956(h), 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), and 1957(a). Count three charged that Cuevas and two others had participated in a money laundering transaction on or about March 19, 1998, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (2).

Several of the defendants named in the indictment were arrested in the spring and summer of 1998. Cuevas, who was living in the Dominican Republic, managed to avoid apprehension at that time. In July 1999, the United States Attorney's Office for the Southern District of New York contacted the Office of International Affairs in the United States Department of Justice ("DOJ") to initiate the process of requesting Cuevas's extradition. The Office of International Affairs, in turn, contacted the United States Department of State ("State Department"), which instructed the U.S. Embassy in Santo Domingo to communicate the request. On August 13, 1999, the U.S. Embassy sent Diplomatic Note No. 116 to the Government of the Dominican Republic, requesting that Cuevas be provisionally arrested in anticipation of extradition to the United States. By Diplomatic Note No. 165, dated November 19, 1999, the U.S. Embassy transmitted to the Government of the Dominican Republic the formal documentation in support of the request for Cuevas's extradition. The extradition request was made pursuant to the Convention for the Mutual Extradition of Fugitives from Justice, U.S.-Dom. Rep., June 19, 1909, 36 Stat. 2468, a bilateral treaty between the United States and the Dominican Republic, and pursuant to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, art. 6, Dec. 20, 1988, S. Treaty Doc. No. 101-4, 28 I.L.M. 493 (1989) ("U.N.Convention"), a multilateral treaty to which the United States and the Dominican Republic are both signatories. See Cuevas, 402 F.Supp.2d at 505-06.

By Diplomatic Note DEI-99-1349, dated November 29, 1999, the Government of the Dominican Republic acknowledged receipt of the extradition request. After some delay, on July 6, 2002, the Dominican Republic transferred custody over Cuevas to the United States, and Cuevas was subsequently transported to New York. In late July, two weeks after Cuevas's return, the United States received a copy of a decree, signed by the President of the Dominican Republic, authorizing Cuevas's extradition. Id. at 506. The decree, dated July 2, 2002, stated in pertinent part: "[I]t is understood that the above-named [defendant] [is] covered by the provisions of Article 4, Paragraph II of Law number 489, dated October 22, 1969, as amended by Law number 278-98 on July 29, 1998." Dom. Rep. Extradition Decree 495-02, July 2, 2002. The referenced provision of the Dominican Republic's Law No. 489 reads: "In extradition treaties signed by the Dominican State with other States, when the extradition of a national is granted, no penalty greater than the maximum established in this country, which at the moment this law enters into force is thirty years, shall be imposed." Dom. Rep. Law No. 489 on Extradition, art. 4, para. II (1969), as amended by Dom. Rep. Law No. 278-98 (1998).

B. Plea and Sentencing

On October 4, 2002, Cuevas appeared with counsel before the U.S. District Court for the Southern District of New York and pled guilty to all three counts of the superseding indictment. After conducting a thorough plea allocution, the District Court accepted Cuevas's guilty plea on all counts.

During the course of the hearing, the Assistant U.S. Attorney ("AUSA") notified the District Court that another indictment, charging a closely-intertwined conspiracy, was pending against Cuevas in the United States District Court for the Southern District of Florida. The AUSA stated that her office was willing to accept a transfer pursuant to Rule 20 of the Federal Rules of Criminal Procedure and had so advised the United States Attorney's Office in the Southern District of Florida, but that she had been unable to finalize the arrangement. The AUSA further represented that in the event that the transfer request was declined, her office would continue to take the position that the sentences in the two cases should be imposed concurrently. Cuevas stated that he understood the situation and acknowledged that there was no guarantee that the transfer would be completed before sentencing, which the District Court scheduled for the following February. The District Court set a Fatico hearing for the week prior to sentencing to resolve the parties' disputes over the applicability of certain sentencing enhancements. See generally United States v. Fatico, 579 F.2d 707 (2d Cir.1978).

The Fatico hearing was held on February 11 and 14, 2003. The government called two witnesses, both of whom had been charged as co-conspirators in the drug distribution scheme and who had entered into cooperation agreements with the government. The first witness, Edward Vidal, testified about the inner workings of the organization from his vantage point as a pickup/delivery man for Cuevas. The second witness, Rafael Duverge, testified about his business dealings with Cuevas in the drug importation business from 1995 to September 1998. Counsel for Cuevas was given an opportunity to cross-examine both witnesses. Cuevas himself did not testify or present any witnesses at the Fatico hearing.

On February 21, 2003, the District Court issued an order finding, by a preponderance of the evidence, that "(1) the conspiracy of which [Cuevas] was a member distributed, as he well knew, in excess of 150 kilos of cocaine, (2) a firearm, as he well knew, was used in the conspiracy, and (3) he was a leader of the conspiracy." The District Court scheduled a hearing for February 24, 2003 to hear argument on: the government's request that Cuevas not receive any reduction for acceptance of responsibility; and on Cuevas's requests for downward departures based on his family ties and obligations, his physical disabilities, and a combination of those circumstances.

At the February 24th hearing, Cuevas's counsel sought an adjournment of sentencing until the transfer of the indictment pending in the ...