United States v. Gillon
| Docket Number | 20-4177 (L),22-46 (con) |
| Decision Date | 27 November 2023 |
| Parties | United States of America, Appellee, v. Troy R. Gillon, Herman E. Aguirre, AKA 007, AKA Lucky, AKA Primo, AKA Freddy, Defendants-Appellants, Jose Ruben Gil, AKA Unc, AKA Ruben Gil CAmpos, AKA Mayor of Mexico, Sonia Her- nandez, Martha Aguirre, Juan Alfaro, Margaret Banuelos, AKA Lisa, Darryl J. Williams, AKA D, Trent Adair Hamilton, Michael Paul Mitchell, Demetrius Yarborough, AKA TuTu, Rashawn Crule, AKA Black, AKA Shawn, Maulana Lucas, AKA Big Daddy, AKA Shabazz, Shirley Grigsby, Ralik Hamilton, Joseph Thompson, AKA Jo-Jo, AKA Skools, AKA Skoolboy, Dion Cheatham, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of November, two thousand twenty-three.
Appeal from judgments of the United States District Court for the Western District of New York (Vilardo, J.).
For Appellee:
SEAN ELDRIDGE (Katherine A. Gregory, on the brief), Assistant United States Attorneys for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.
For Defendant-Appellant Aguirre:
SARAH KUNSTLER, Law Office of Sarah Kunstler, Brooklyn, NY.
For Defendant-Appellant Gillon:
JOSEPH Z. AMSEL, Law Office of Joseph Z. Amsel, New York, NY.
Present: DEBRA ANN LIVINGSTON, Chief Judge, RICHARD C WESLEY, DENNY CHIN, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court as to Defendant-Appellant Herman E. Aguirre is AFFIRMED in part and REMANDED with instructions to vacate in part, and that the judgment of the district court as to Defendant-Appellant Troy Gillon is AFFIRMED.
Following a trial by jury, Defendants-Appellants Herman E. Aguirre and Troy Gillon were convicted of conspiracy to possess with the intent to distribute heroin, fentanyl, and cocaine, in violation of 21 U.S.C. § 841 and § 846. Aguirre was also convicted of being a principal administrator of a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848(a) and (b), and money laundering conspiracy, in violation of 18 U.S.C. § 1956(h), (a)(1)(A)(i), and (a)(1)(B)(ii). The district court (Vilardo, J.) sentenced Aguirre to life in prison on the CCE charge, 300 months' imprisonment on the narcotics conspiracy charge, and 240 months' imprisonment on the money laundering charge, all to run concurrently. The district court sentenced Gillon to 300 months' imprisonment for his role in the narcotics conspiracy.
Before this court, Aguirre challenges his sentencing for both the CCE offense and the underlying narcotics conspiracy, which is a lesser-included offense of the former, as a violation of the Double Jeopardy Clause of the United States Constitution. Aguirre also appeals his conviction on the grounds that the jury was improperly instructed as to the elements of a CCE offense and that the government presented insufficient evidence to establish that he supervised five or more persons or earned substantial income or resources from his crimes. Lastly, Aguirre contends that his mandatory life sentence for the CCE offense violates the Eighth Amendment's prohibition on cruel and unusual punishment.
As for Gillon, he contends that the district court erred in denying his motion to suppress evidence and his motions to dismiss the indictment or for a new trial pursuant to Federal Rule of Criminal Procedure 33(a). Gillon also appeals his sentence on the ground that it is procedurally and substantively unreasonable.
We agree that Aguirre's sentencing for both the narcotics conspiracy and the CCE offenses violates the Double Jeopardy Clause and therefore remand to the district court with instructions to vacate one or the other. We disagree with Aguirre's remaining contentions, as well as each of Gillon's challenges, and therefore affirm as to all other issues raised. We assume the parties' familiarity with the underlying facts, procedural history, and arguments on appeal.
At the start, the Government agrees that 21 U.S.C. § 846 is a lesser-included offense of 21 U.S.C. § 848. See Rutledge v. United States, 517 U.S. 292, 307 (1996) ( "[a] guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846; conspiracy is therefore a lesser included offense of CCE"). "Accordingly, '[o]ne of [Aguirre's] convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense' and must be vacated." Id. (quoting Ball v. United States, 470 U.S. 856, 864 (1985)). The decision as to which conviction to vacate is one we leave to the district court's discretion. Id.; see also United States v. Goodwin, 131 F.3d 132, at *7 (2d Cir. 1997) (unpublished opinion). We therefore remand with instructions for the district court to vacate Aguirre's conviction and sentence for either the narcotics conspiracy or the CCE.
As to Aguirre's sufficiency of the evidence argument, we review the denial of a Rule 29 motion de novo. United States v. Alcius, 952 F.3d 83, 86 (2d Cir. 2020) (per curiam). "A defendant challenging the sufficiency of the evidence bears a heavy burden because a reviewing court must consider the evidence in the light most favorable to the prosecution and uphold the conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Bramer, 956 F.3d 91, 96 (2d Cir. 2020) (internal quotations omitted); see also Alcius, 952 F.3d at 86. Under this standard, we "credit[] every inference that the jury might have drawn in favor of the government, and recogniz[e] that the government's evidence need not exclude every other possible hypothesis." United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008) (internal quotations and citations omitted). If competing inferences arise, we defer to the jury's choice, id., no matter whether the evidence under review "is direct or circumstantial." United States v. Persico, 645 F.3d 85, 105 (2d Cir. 2011).
Aguirre challenges two elements of his CCE conviction, the first of which involves whether he supervised five or more persons. Aguirre concedes that a reasonable jury could have found him to be a supervisor of Sonia Hernandez, Martha Aguirre, and Roberto Tenas, but he argues that the evidence is insufficient to find him a supervisor over Jose Roben Gil, Darryl Williams, Mau-lana Lucas, Troy Gillon, Margaret Banuelos, Juan Banuelos, or Juan Alfaro. Because Aguirre did not raise this argument before the district court, we review the sufficiency of the evidence as to this element for plain error.
Viewing the record in the light most favorable to the government, we conclude that the evidence was sufficient for a reasonable jury to find that Aguirre supervised at least two other individuals in addition to the three he conceded. "[G]enerally[, ] a management or supervisory relationship within the meaning of § 848 is 'created when one person gives orders or directions to another person who carries them out.'" United States v. Roman, 870 F.2d 65, 73 (2d Cir. 1989) (quoting United States v. Stratton, 779 F.2d 820, 827 (2d Cir. 1985)). Furthermore, "[a] conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt." United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) (internal citation omitted). At trial in this case, Gil and Williams testified that Aguirre was their boss and that he directed their activities in the conspiracy. Lucas, who accidentally threw away several kilograms of heroin that Aguirre had shipped to Buffalo, testified that Aguirre made him dumpster dive to find them; when Lucas could not locate one of the kilos, Aguirre told him either "work it off, or I'm gonna kill you." GA 0788-0792. Their testimony provided sufficient evidence for the jury to find the necessary supervisory relationships.
Although there is less direct testimony regarding Gillon's relationship with Aguirre, evidence at trial showed that the two had a meeting in December 2014 about distributing China White (i.e., fentanyl), that Gillon received and distributed the drugs that Aguirre shipped to him, and that Gillon had the same access to Aguirre that Williams did. Given our existing precedents that conclude even "streetcorner sellers" can be construed as within a kingpin's supervision (no matter whether the two had even met), the jury was entitled to find that Gillon "clearly operated within an organization that [Aguirre] managed and organized." United States v. Cruz, 785 F.2d 399, 407 (2d Cir. 1986).[1]
With regards to Aguirre's argument that the evidence was insufficient to prove that he obtained substantial income from his narcotics activities, we again disagree. The CCE statute "does not prescribe the minimum amount of money required to constitute 'substantial' income, but the language clearly was intended to exclude...
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