05-4679 | Omnilex

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2007

(Argued: May 28, 2008
(Decided: December 8, 2008)
Docket Nos. 05-4679cr, 05-5401cr

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UNITED STATES OF AMERICA,

Appellee,
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JAIME CHAVEZ, ANASTACIO ACOSTA,

Defendants-Appellants.

Before: KEARSE, CALABRESI, and SACK, Circuit Judges.

Appeals from judgments entered in the United States
District Court for the Southern District of New York, Gerard E.
Lynch, Judge, convicting both defendants of narcotics conspiracy,
see 21 U.S.C. §§ 841 (a) (1), (b) (1) (A), and 846; and convicting
Chavez of possession of a silencer-equipped firearm in
furtherance of that conspiracy and imposing consecutive sentences
for his two offenses, see 18 U.S.C. §§ 924 (c) (1) (A) and
(c) (1) (B) (ii) .

\- V. -
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Affirmed.
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ERIC SNYDER, Assistant United States
Attorney, New York, New York (Michael
J. Garcia, United States Attorney for
the Southern District of New York,
Anirudh Bansal, Jonathan S. Kolodner,

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Assistant United States Attorneys, New
York, New York, on the brief), for
Appellee.

ROBERT J. BOYLE, New York, New York (Robert
Ramsey, Jr., Ramsey & Price, Los
Angeles, California, on the brief),
for Defendant-Appellant Chavez.

JOSEPH W. MARTINI, Southport, Connecticut
(Michael R. Patrick, Pepe & Hazard,
Southport, Connecticut, on the brief) ,
for Defendant-Appellant Acosta.

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KEARSE, Circuit Judge:

Defendants Jaime Chavez and Anastacio Acosta appeal from
judgments entered in the United States District Court for the
Southern District of New York following a jury trial before Gerard
E. Lynch, Judge, convicting each defendant of conspiracy to
distribute and possess with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 846 (count one) ,
and convicting Chavez of possession, in furtherance of the cocaine
trafficking conspiracy, of a firearm equipped with a silencer, in
violation of 18 U.S.C. §§ 924 (c) (1) (A) and (c) (1) (B) (ii) (count

two) . Chavez was sentenced principally to 300 months'
imprisonment on count one and to 360 months' imprisonment on count
two -- the statutory minimum for that count -- to be served
consecutively to the term imposed for count one, for a total

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prison term of 660 months. Acosta was sentenced principally to
198 months' imprisonment. On appeal, Chavez and Acosta contend
that the evidence was insufficient to support their convictions
and that there were trial errors, and they challenge their

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sentences. Finding no basis for reversal, we affirm. We write
principally to address Chavez's contention that the district court
erred in concluding that, having determined an appropriate
sentence for him on count one, it had no authority to reduce that
sentence on account of the severity of the sentence it was
required to impose for count two.

# I. BACKGROUND

The indictment on which Chavez and Acosta were tried
alleged that they were members of a narcotics conspiracy that
operated in various areas, including New York City and California,
from approximately October 2001 through May 2003. Other alleged
members of the conspiracy included Gregorio Barraza, his brothers
Daniel Barraza and Jose Luis Barraza, and cooperating witness
Nicholas Ibarra. The government's evidence at trial, discussed in
greater detail in Part II.A. below, consisted principally of (a)
recordings of telephone conversations between Chavez and other
conconspirators, and (b) the testimony of Ibarra who, inter alia,
described the organization's narcotics distribution operation in
New York and interpreted some of the coded terms used in
conconspirators' telephone conversations. The government also
introduced in evidence a pistol, equipped with a silencer, that
had been seized from Chavez's apartment.

The jury found both Chavez and Acosta guilty of
conspiracy to distribute and possess with intent to distribute

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more than five kilograms of cocaine. It found Chavez guilty of
possessing the silencer-equipped pistol in furtherance of that
drug trafficking conspiracy.

The district court sentenced Acosta principally to 198
months' imprisonment (see Part II.C.2. below). The court
sentenced Chavez principally to 300 months' imprisonment on count
one, followed by 360 months' imprisonment -- the statutory mandatory
minimum sentence for his conviction on count two -- for a total of
660 months' imprisonment (see Part II. B. below) .

## II. DISCUSSION

On appeal, both defendants contend principally (1) that
the evidence was insufficient to support their convictions, and
(2) that their sentences were unreasonable. They also advance
various other contentions, including that statements made by the
government in summation were improper and that the district court
should have given an accomplice-witness instruction in the
language requested by Acosta. We find no merit in any of
defendants' contentions; only the evidentiary and sentencing
challenges warrant discussion.

## A. Sufficiency of the Evidence

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Both Chavez and Acosta contend that the government's
evidence at trial was insufficient to permit the jury to find that
they were members of the conspiracy alleged in the indictment.

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Acosta contends that the evidence showed that there existed not
the single California-New York conspiracy alleged, but rather
multiple conspiracies, and that he was a member only of the
smaller and independent conspiracy that operated in New York.
Chavez contends that the evidence failed to show that he had any
connection with the conspiracy that operated in New York; he also
challenges the sufficiency of the evidence to show that the gun
seized from his apartment (a) was possessed by him, and (b) was
possessed in furtherance of the drug-trafficking conspiracy.

In challenging the sufficiency of the evidence to support
a conviction, a defendant bears a heavy burden. See, e.g.,
United States v. Quattrone, 441 F.3d 153, 169 (2d Cir. 2006) ;
United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994). In
considering such a challenge, we must view the evidence in the
light most favorable to the government, crediting every inference
that could have been drawn in the government's favor, see, e. g.,

United States v. Locascio, 6 F.3d 924, 944 (2d Cir. 1993), cert.
denied, 511 U.S. 1070 (1994), and "defer[ring] to the jury's
assessment of witness credibility, " United States v. Bala, 236
F.3d 87, 93 (2d Cir. 2000), and its assessment of the weight of
the evidence, see, e.g., United States v. Morrison, 153 F.3d 34,
49 (2d Cir. 1998) . The conviction must be upheld if "any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307,
25 319 (1979) (emphasis in original) ; see, e.g., United States v.
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Velasquez, 271 F.3d 364, 370 (2d Cir. 2001) (a conviction may be

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overturned on the basis of insufficiency of the evidence only if,
on the evidence viewed in the light most favorable to the
government, with all inferences drawn and credibility assessments
made in its favor, "'no rational trier of fact could have found
the essential elements of the crime charged beyond a reasonable
doubt'" (quoting United States v. McDermott, 245 F.3d 133, 137 (2d
Cir. 2001) ) ). These principles apply whether the evidence being
8 reviewed is direct or circumstantial. See, e.g., Glasser v.
United States, 315 U.S. 60, 80 (1942).

In order to convict a defendant of conspiracy, the
government must prove both the existence of the conspiracy alleged
and the defendant's membership in it beyond a reasonable doubt.
See, e.g., United States v. Huezo, 546 F.3d 174, 180 (2d Cir.
2008). The essence of any conspiracy is, of course, agreement,
and in order to establish a conspiracy, the government must show
that two or more persons entered into a joint enterprise with
consciousness of its general nature and extent. See, e.g., United
States v. Alessi, 638 F.2d 466, 473 (2d Cir. 1980). To establish
a particular defendant's membership in the alleged conspiracy, the
government must present "proof of [his] purposeful behavior aimed
at furthering the goals of the conspiracy." United States v.
Diaz, 176 F.3d 52, 97 (2d Cir.) (internal quotation marks
omitted), cert. denied, 528 U.S. 875 (1999). "Both the existence
of a conspiracy and a given defendant's participation in it with
the requisite knowledge and criminal intent may be established

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through circumstantial evidence." United States v. Stewart, 485
F.3d 666, 671 (2d Cir. 2007). Further,

[t]he government need not show that the defendant knew
all of the details of the conspiracy, "so long as he knew
its general nature and extent." United States v. Rosa, 17
F.3d 1531, 1543 (2d Cir. 1994). Nor [need] the government
prove that the defendant knew the identities of all of the
other conspirators. United States v. Downing, 297 F.3d
52, 57 (2d Cir. 2002) .

United States v. Huezo, 546 F.3d at 180; see, e.g., Blumenthal v.
United States, 332 U.S. 539, 557 (1947) (" [T]he law rightly gives
room for allowing the conviction of those discovered upon showing
sufficiently the essential nature of the plan and their
connections with it, without requiring evidence of knowledge of
all its details or of the participation of others. ") .

The matter of whether there existed a single conspiracy as
charged in the indictment or multiple conspiracies "is a question
of fact for a properly instructed jury. " United States v. Berger,
224 F.3d 107, 114 (2d Cir. 2000) (internal quotation marks
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In order to prove a single conspiracy, the
government must show that each alleged member agreed
to participate in what he knew to be a collective
venture directed toward a common goal. The
coconspirators need not have agreed on the details of
the conspiracy, so long as they agreed on the
essential nature of the plan.

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United States v. Geibel, 369 F.3d 682, 689 (2d Cir.) (internal
quotation marks omitted), cert. denied, 543 U.S. 999 (2004). "[A]
single conspiracy is not transformed into multiple conspiracies
merely by virtue of the fact that it may involve two or more
phases or spheres of operation, so long as there is sufficient

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proof of mutual dependence and assistance." Id. (internal
quotation marks omitted) . Thus,

[i]n the context of narcotics operations, . . . we
have held that even where there are multiple groups
within an alleged conspiracy, a single conspiracy
exists where the groups share a common goal and
depend upon and assist each other, and we can
reasonably infer that each actor was aware of his
part in a larger organization where others performed
similar roles.

United States v. Berger, 224 F.3d at 115 (internal quotation marks
omitted) ; see also United States v. Sureff, 15 F.3d 225, 230 (2d
Cir. 1994) ("A single conspiracy may encompass members who neither
know one another's identities,
nor specifically know of one
another's involvement . . . . ") .

Here, the district court properly instructed the jury on
single versus multiple conspiracies -- defendants do not contend
otherwise -- and we conclude that there was sufficient evidence for
the jury to conclude that the single conspiracy alleged in the
indictment, operating in California and New York, existed and that
both Chavez and Acosta were members of it. Taken in the light
most favorable to the government, the evidence included proof of
the following.

## 1. Defendants' Membership in the Conspiracy

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Chavez, who operated primarily out of California,
supervised the organization's operations in the United States;
Chavez reported to his uncle Santiago Chavez-Ayon, known as
"Santi, " who was based in Mexico. The organization's operations
in New York were overseen by Gregorio Barraza ( "Barraza"). Some

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of the narcotics sold by the organization came from Mexico; some
came from suppliers in the eastern United States, including
Acosta.

Ibarra testified that, prior to moving to New York, he had
been friendly with the Barraza brothers when he and they lived in
Compton, California (see Trial Transcript ("Tr. ") at 382), and he
had met Chavez casually in California (see id. at 417-18). Ibarra
began working with Barraza in New York City in the spring of 2002,
engaging in drug trafficking with Barraza, Acosta, and "a lot of
[other] people" (id. at 368). Barraza was in charge of the New
York group; Ibarra understood that Barraza's boss was Chavez.
(Id. at 368-69.) Indeed, at one point, when Barraza discovered
that several kilograms of cocaine were missing and suspected that
Ibarra, high on cocaine and marijuana, had misdelivered them,
Barraza said that if Chavez saw Ibarra "all drugged up" Chavez
would fire Ibarra. (Id. at 424-25.)

Under the direction of Barraza, Ibarra began living in a
stash house maintained by the organization in Queens, New York.
Ibarra's jobs included picking up cocaine from suppliers,
delivering it to the organization's distributors, and keeping
count of the drug money stored in the stash house.

Acosta supplied the organization with wholesale
quantities of cocaine. For example, one of Ibarra's early tasks
in New York was to drive in tandem with Barraza to Acosta's house
in the Bronx, New York, where Acosta and Barraza gave Ibarra a
duffel bag containing 50 kilograms of cocaine. Ibarra temporarily

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stored the cocaine at the stash house, and over the next few days
he delivered bulk quantities to the organization's distributors.
Some days thereafter, Ibarra collected sales proceeds from the
distributors and delivered money to Acosta. The proceeds of these
sales amounted to "more than several hundred thousand dollars."
(Tr. 401-02.)

This process was repeated several times, with various
quantities of cocaine (see generally Part II. C.1. below) supplied
by Acosta. In addition, on at least one occasion, Ibarra picked
up 40 kilograms of cocaine from a supplier other than Acosta,
using a vehicle provided by Acosta.

While working with Barraza in New York, Ibarra fielded
numerous telephone calls for Barraza from Chavez in California.
The government, which conducted court-authorized wiretaps on
Chavez's telephone in California, Barraza's telephone in New York,
and Ibarra's cell phone, introduced many recordings and
transcripts of telephone conversations between Chavez and Barraza
in which Chavez gave instructions for or expressed concern over,
inter alia, the New York operation's inventory and security.

For example, in early August 2002, concerned that the
organization's assets had been depleted, Chavez called Barraza and
asked whether Barraza could "put anything together right now"
(August 8, 2002 call, GX 15T, at 2). Barraza replied that he had
seven kilograms of cocaine; Chavez instructed him to dilute it so
that "out of those seven" they could get "fourteen." (Id. )

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In mid-August, Chavez called Barraza and informed him that
the police had paid a visit to Barraza's mother's house in
Compton, "looking for all of us" (August 19, 2002 call, GX 18T,
at 3). Chavez said the police were looking for Barraza, his two
brothers, and several others, including Acosta. (See id. at 2.)
Chavez instructed Barraza to "get out" and hide at a ranch in
Mexico "for a while." (Id. at 5.)

Two days later, Chavez reported to his uncle Santi that
"we're all in hiding" because law enforcement agents had a list of
people for whom they were searching, including Daniel Barraza and
Chavez. (August 21, 2002 call, GX 21T, at 4.) Santi asked
whether the list also included Acosta. Chavez said it did but
that the agents were "looking for him here" in California, as they
apparently did not realize that Acosta was in New York. (Id. at
4; see also Tr. 377 (in the late 1990s, Acosta distributed cocaine
in Compton, California) .)

In mid-August, the organization had moved its New York
inventory from Queens to a new stash house in the Bronx. It then
decided that it needed to change locations again; and in a
conversation with Barraza, Chavez expressed concern about when the
new stash house would be ready (August 29, 2002 call, GX 24T, at
1-2) .

In the fall of 2002, law enforcement agents in New York
made several seizures of cocaine from the organization. In late
October they arrested Jose Nunez (also known as "Che") (see,
e.g., Tr. 783-85), one of the organization's New York

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distributors to whom Ibarra regularly made bulk deliveries of
cocaine supplied by Acosta (see, e.g., id. at 375, 400, 409-12).
Che had an auto body shop in the Bronx (see id. at 412), and in
connection with his arrest at that location a total of 24
kilograms of cocaine and $120, 000 in cash were found concealed in
vehicles (see id. at 787) . An expert witness for the government
testified that when a narcotics distribution organization is
informed of such an arrest and seizure, the organization's leaders
typically demand to see documentary proof of the seizure -- commonly
"legitimate press clippings or legitimate court documents" -- in
order to be assured that the drugs have not in fact been stolen by
the arrested member. (Id. at 759-61.) Following Che's arrest,
Chavez and Barraza discussed the need to get Che's "papers"
(November 14, 2002 call, GX 56T, at 2-3).

A month before Che's arrest, agents had arrested another
of the organization's distributors and seized a duffel bag that
had just been delivered to him by Ibarra. The bag contained
approximately five kilograms of cocaine. Thereafter, the agents
arrested Ibarra at the organization's stash house, from which they
seized, inter alia, 25 kilograms of cocaine.

Ibarra testified that in the fall of 2002, the price of a
kilogram of cocaine was approximately $23,000. The cocaine
seizures described above, totaling 54 kilograms, were thus worth
more than $1.2 million.

In a call to Barraza in the spring of 2003, Chavez stated
that, in the seizures from the New York operation, Chavez had

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"lost everything" (May 1, 2003 call, GX 62T, at 4 ( "I lost
everything that I could possibly lose
") ). Chavez said,
"I'm desperate" and going "crazy . . . from all the effort that
I'm making to cover that debt. " (Id. )

In the same conversation, Chavez said he had heard a rumor
that Ibarra, arrested in September 2002, had been released from
jail. Chavez expressed concern that Ibarra's release would make
the organization's suppliers "think that we lied" about the
cocaine's having been seized (id. at 3) and lead them to take
violent action against Chavez (see id. at 4 (" [T]he same thing
that happened to Abraham is going to happen to us. You know that
fool Abraham? The one who got killed?") ) .

Thus, the recorded telephone conversations between Chavez
and Barraza, along with the testimony of Ibarra, showed, inter
alia, that Barraza was in charge of the organization's operations
in New York; that Acosta supplied the organization's New York
operation with cocaine; that Chavez supervised Barraza with
respect to the New York operation's inventory and its security,
including the storage of cocaine, the detection of theft by
employees, and the avoidance of apprehension by law enforcement
agents; that in identifying the New York personnel who should be
aware of government attention, Chavez expressly included Acosta;
and that Chavez knew that he himself was personally responsible
for the "debt" to the organization's suppliers resulting from the
cocaine seizures in New York. This provided ample evidence from
which the jury could infer that Chavez, from California, and

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Acosta in New York, were members of the conspiracy whose
operations included the Barraza-supervised distribution in New
York of cocaine supplied by Acosta.

In addition, the record included evidence of Chavez's
involvement in the New York distribution operation prior to
Ibarra's 2002 arrival in New York and the interception of
Chavez's telephone conversations. In October 2001, Chavez and
Jose Luis Barraza attempted to drive from New York to California
with a total of $100, 000 in U.S. currency in bags or concealed in
shampoo and conditioner bottles inside a hidden compartment in
their car. (See Tr. 816-17, 827-39.) The car was stopped by
police in Omaha, Nebraska, for traffic violations, and the police
found the money during consensual searches of the car. (See id.
at 806-11, 827-28.) The narcotics-detection dog used by the Omaha
police indicated that the hidden compartment smelled of narcotics.
(See id. at 835-36.)

We note that Chavez complains of the admission of the
report of this seizure on the ground that the government did not
give timely notice of its intention to introduce the seizure
report in its case-in-chief, see Fed. R. Crim. P. 16 (a) (1) (E) (ii) .
Although the government did not give such notice until a week
before the trial was scheduled to begin, the court found that the
government's tardiness was inadvertent and that Chavez was not
entirely without warning, given that the Omaha seizure was
described in an affidavit that was produced to Chavez in discovery
some 15 months before trial. The court concluded that Chavez

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would not be prejudiced by the delay because the court would
afford him, without the usual formalities, a hearing on a motion
to suppress the seizure report. Following that hearing, the court
determined that the search was proper and that the evidence was
admissible. Chavez does not contend that any of the district
court's factual findings or conclusions of law were erroneous; he
argues only that the seizure report should have been automatically
excluded on the ground that the government's notice of intent to
introduce the report was late. We disagree. The trial court has
broad discretion to fashion a remedy for the government's
violation of Rule 16 (a), see generally United States v. Thai, 29

F.3d 785, 804 (2d Cir.), cert. denied, 513 U.S. 977 (1994), and we
conclude that, in all the circumstances, the district court's
decision to admit the report following the hearing was well within
the proper bounds of its discretion. Accordingly, the evidence
that Chavez was engaged in transporting to California what were
likely the proceeds of narcotics transactions in New York was
properly admitted and was further evidence from which the jury
could infer that the wide-spread conspiracy alleged in the
indictment existed and that Chavez was a member of it.

2\. Chavez's Gun Possession in Furtherance of the Conspiracy

Chavez also contends that the evidence was insufficient to
support his conviction on count two, i.e., possession of a firearm
found in his apartment, equipped with a silencer, in furtherance
of the count-one narcotics conspiracy of which he was convicted,

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see 18 U.S.C. § 924 (c) (1) (A) (prohibiting possession of a firearm
for such a purpose), and id. § 924 (c) (1) (B) (ii) (prescribing
enhanced punishment if the firearm is equipped with a silencer) .
Chavez challenges the sufficiency of the evidence as to the
elements of possession and furtherance.

In order to establish that a defendant possessed a
firearm within the meaning of § 924 (c), the government need not
prove that he physically possessed it; proof of constructive
possession is sufficient. See, e.g., United States v. Finley, 245
F.3d 199, 203 (2d Cir. 2001), cert. denied, 534 U.S. 1144 (2002);
cf. United States v. Rivera, 844 F.2d 916, 925-26 (2d Cir. 1988)
(applying constructive possession principles in upholding
conviction under the predecessor to 18 U.S.C. § 922 (g), which,

inter alia, made it unlawful for a convicted felon to possess a
firearm). Constructive " [p]ossession of a firearm may be
established by showing that the defendant knowingly [had] the
power and the intention at a given time to exercise dominion and
control over [it]." United States v. Finley, 245 F.3d at 203
(internal quotation marks omitted) ; see, e.g., United States v.
Rivera, 844 F.2d at 925; United States v. Tribunella, 749 F.2d
104, 111-12 (2d Cir. 1984) (where there was evidence that the
defendant's other family members knew nothing about guns and that
the defendant owned guns and had ammunition and a magazine about
guns in his bedroom, the evidence was sufficient to support a
finding that he constructively possessed a gun found above the
ceiling in his bedroom) .

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In the present case, the record included the following
evidence. During the spring of 2003, Chavez was living in an
apartment on Petrol Street in Paramount, California. On May 9,
law enforcement agents observed him entering the apartment wearing
a gray T-shirt with a black design. When he exited later that
day, he went to a nearby motel where he spent the night. He was
arrested the next morning, and he gave his consent for a search of
the apartment.

Although Chavez argues, inter alia, that no inferences
could be drawn as to his possession of items found in the two-
bedroom, two-bathroom apartment because his roommate had -- and
could give others -- access to the apartment, Chavez had recently
told Barraza that he was living in the Petrol Street apartment
with a roommate who was "never here." (April 29, 2003 call,
GX 60T, at 7.) Consistent with Chavez's statement to Barraza, the
agents who searched the apartment on the day of the arrest
testified that only one of the bedrooms and one of the bathrooms
showed any signs of occupancy. (See, e.g., Tr. 924 (in one
bedroom " [t]here weren't any linens on the bed, no clothing in the
closet"; in one bathroom " [t]here weren't any toiletries" or "any
towels or anything like that") .)

The other bedroom appeared to be lived-in. There was a
large bed with linens on it; there were clothes in the closet and
shoes on the floor; and in the adjacent bathroom were such items
as toiletries and towels. (See id. at 924-25.) In that bedroom,
the agents found a .22-caliber Beretta pistol under a pillow on

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the bed. (See id. at 926.) On top of that bed was the gray and
black T-shirt that Chavez had worn the day before. (See id. at
894-95, 907-09.)

This evidence was ample to permit the jury to find that
Chavez had dominion and control over the pistol found under the
pillow on his bed and hence that he possessed it within the
meaning of 18 U.S.C. § 924 (c) (1) (A) .

A gun may, of course, be possessed for any of a number of
purposes, some lawful, others unlawful. The government does not
establish that a firearm was possessed in furtherance of drug
trafficking merely by relying on the proposition that drug dealers
generally use guns to protect themselves and their drugs, and thus
that any time a gun is possessed by a drug dealer it is possessed
in furtherance of his drug offenses. See, e.g., United States v.
Snow, 462 F.3d 55, 62 (2d Cir. 2006), cert. denied, 127 S. Ct.
1022 (2007). "Instead, the government must establish the
existence of a specific 'nexus' between the charged firearm and
the [federal drug trafficking crime]." Id .; see, e.g., United
States v. Lewter, 402 F.3d 319, 321-22 (2d Cir. 2005) ; United
States v. Finley, 245 F.3d at 203. The "nexus" inquiry is fact-
intensive.

"Although courts look at a number of factors to determine
whether such a nexus exists, " United States v. Snow, 462 F.3d at
62, such as "the type of drug activity that is being conducted,
accessibility of the firearm, the type of the weapon, whether the
weapon is stolen, the status of the possession (legitimate or

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illegal), whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is
found," id. at 62 n.6 (internal quotation marks omitted), "the
ultimate question is whether the firearm 'afforded some advantage
(actual or potential, real or contingent) relevant to the
vicissitudes of drug trafficking, '" id. at 62 (quoting United
States v. Lewter, 402 F.3d at 322). "Thus, while no conviction
would lie for a drug dealer's innocent possession of a firearm,
a drug dealer may be punished under § 924 (c) (1) (A) where the
charged weapon is readily accessible to protect drugs, drug
proceeds, or the drug dealer himself." United States v. Snow, 462
F.3d at 62-63 (internal quotation marks omitted) .

Notwithstanding Chavez's argument that the in-furtherance
element was not proven here because he was not carrying the gun
and the agents found no narcotics, money, or narcotics
paraphernalia in the apartment, the record sufficed to permit the
jury to find that there was a nexus between the narcotics
conspiracy of which Chavez was a member and Chavez's possession of
the gun. It included the following.

The Beretta pistol found under Chavez's pillow was loaded
with hollow-point bullets, which are designed to expand upon
impact and hence to create injury beyond the effects caused by
mere impact. (See Tr. 964-65.) The pistol was equipped with a
silencer that bore no manufacturer's name or serial number,
thereby indicating that it had been fabricated clandestinely.
(See id. at 973-74.) Thus, the nature of both the ammunition and

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the silencer were indicia that Chavez's pistol was possessed for
unlawful purposes. See, e.g., United States v. Lewter, 402 F.3d
at 322 (gun's obliterated serial number and hollow-point bullets
were indicia of possession for an unlawful purpose). And there
was postarrest evidence indicating that Chavez in fact possessed
the pistol for use in connection with the narcotics conspiracy:
While Chavez and coconspirators Barraza, Daniel Barraza, and Jose
Luis Barraza were in adjacent holding cells following their
arrests, one of the arresting agents heard one of the Barraza
brothers yell out a question to Chavez, "did they found [sic] the
gun [? ] " (Tr. 116) .

Finally, the gun was seized just days after Chavez told
Barraza, as discussed in Part II.A.1. above, that Chavez feared
that their suppliers, believing Chavez had stolen the cocaine and
would not pay the debt, would attempt to kill him as they had
killed "that fool Abraham." (May 1, 2003 call, GX 62T, at 4.)

In sum, the evidence was ample to permit the jury to find
that Chavez possessed the silencer-equipped gun found under his
pillow to provide security for his narcotics conspiracy operation
and protect Chavez against an expressly anticipated murder
attempt on his life by his drug suppliers, and hence was
possessed in furtherance of his drug trafficking crime.

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B. Chavez's Contention that the District Court
Misapprehended Its Sentencing Authority

As Chavez was convicted on count one of conspiring to
traffic in more than five kilograms of cocaine, and had been

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convicted of a drug-trafficking felony previously, the district
court was required to sentence him to, inter alia, a prison term
of at least 20 years (240 months). See 21 U.S.C. §§ 841 (a),
841 (b) (1) (A), 846. The district court, consulting the 2004
version of the Sentencing Guidelines, determined that Chavez's
total offense level was 42, comprising a base offense level of 38
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because Chavez was responsible for conspiring to distribute more
than 150 kilograms of cocaine and a four-step increase because he
9 was a leader of criminal activity involving five or more
participants. As Chavez's record of convictions placed him in
criminal history category III, the advisory-Guidelines-recommended
range of imprisonment for him on count one was 360 months to life.

With respect to count two, on which the jury found that
the Beretta pistol discovered under Chavez's pillow was possessed
by Chavez in furtherance of his drug-trafficking conspiracy and
was equipped with a silencer, the court was required to sentence
Chavez to a prison term of not less than 30 years (360 months) in
addition to the prison term imposed on count one. See 18 U.S.C.
§§ 924 (c) (1) (A), (c) (1) (B) (ii), and (c) (1) (D) (ii). Chavez's
attorney acknowledged that the court was required by the pertinent
statutes to impose at least a 240-month prison term on count one
plus 30 years on count two, and that thus "we're looking at
minimum[, at a] mandatory 50 years" (Chavez Sentencing Transcript
("Chavez S. Tr. ") at 9) . But he argued that the total recommended
sentence "would overstate the sentence the defendant should
receive in light of the [18 U.S.C. §] 3553 (a) factors" (id. at 7),

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including the factor of sentencing disparity among defendants (see
id. at 8); counsel argued that the district court "does have
discretion" and suggested "the 30-year sentence on the gun [count]
itself
is more than sufficient to cover the elements of
sentencing in this case" (id. at 7) .

The district court's response to this suggestion was that
a reduction of the sentence for count one on that theory would
face a legal obstacle:

The statute, if I'm not mistaken, on which the
Count 2 conviction rests requires that the sentence
imposed on that count be consecutive to any sentence
imposed on the underlying count. And I have some
concern that it would violate the spirit, and
possibly the letter of that statute, if I were to
say, well, the sentence I might normally impose is
. . . 20 years, for the narcotics count, but since
he's getting 30 anyway, that's enough and I'll give
him a year and a day or something on the narcotics
count and then impose the 30-year count consecutive.

The district court opined that a total sentence of 720
months for Chavez (i.e., the 30-year term at the bottom of the
Guidelines-recommended range for count one plus the 30-year
consecutive term statutorily required for count two) would be
"effectively a life sentence and more" (id. at 8), and that such a
total would be an "extraordinary" sentence (id. ) for "a 30-year-
old man who has no actual violent crimes to his record" (id. at
17) and might not be "necessary to protect the public or to
adequately punish him for his crimes" (id.). Nonetheless, the
court concluded that it had "no doubt that a lengthy prison term"
for count one itself " [wals required" (id. at 17), given that

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"Chavez [wals a major drug trafficker by anyone's definition" (id.
at 16), that " [h]e was a significant leader in a conspiracy that
distributed huge amounts of cocaine" (id. ), that "he and the
colleagues he supervised possessed numerous firearms" (id. ), that
" [t]here can be no doubt that he and those who worked for him were
prepared to engage in acts of violence in furtherance of their
drug distribution schemes" (id. ), that he "has a criminal record
starting as a juvenile, including a previous drug trafficking
conviction and a previous conviction for possession of a firearm
starting at a very young age" (id. at 17), and that he
undisputedly "is a professional narcotics dealer with no respect
for the law and a serious potential for violence" (id. ). The
court

conclude [d] that a 25-year sentence on the underlying
narcotics conspiracy here is reasonable. The
statutory mandatory minimum sentence here is 20
years, and that would apply even if the amount of
cocaine involved in the conspiracy were vastly lower
than what was shown in this case.

(Id. at 18.) The court noted that this sentence did not include
any enhancement for Chavez's possession of the firearm and that
had there been no firearm count, the sentence on the narcotics
conspiracy count would have been higher. (See id. at 19-20) ; see
generally Guidelines § 2D1.1 (b) (1) (requiring a two-step increase
in offense level if a firearm was possessed in connection with a
drug trafficking crime) ; but see id. § 2K2.4 (b) and Application
Note 4 (If a sentence for a § 924 (c) offense "is imposed in
conjunction with a sentence for an underlying offense, do not
apply any specific offense characteristic for possession
[of

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the] firearm when determining the sentence for the underlying
offense.
Do not apply any weapon enhancement in the
guideline for the underlying offense
") .

The district court concluded that as a matter of law it
could not properly reduce Chavez's count-one narcotics conspiracy
sentence based on the length of the sentence required for count
two because such a reduction would effectively violate the
statutory requirement that the sentence on count two be
consecutive :

[W] hat drives th[e] outcome, it seems to me, is the
specific statute that specifically requires a 30-year
sentence, and not just a 30-year sentence, but a
consecutive 30-year sentence on the gun count. And
that is a command of Congress.

(Chavez S.Tr. 8 (emphases added) . )

[D]espite the discretion in sentencing granted by
[United States v.] Booker [, 543 U.S. 220 (2005) , ] and
Section 3553 (a) , I have to respect the commands of
Congress. Congress imposed the 30-year mandatory
sentence, and Congress specifically required that the
sentence be consecutive to whatever other sentence is
imposed. So I don't think I can be faithful to the
law by lowering the narcotics sentence because the
total sentence, including the mandatory consecutive
sentence, appears to be [ ]too high. Rather, I
believe I must independently decide what is[ ]an
appropriate sentence for the narcotics crime and then
impose the mandatory consecutive sentence on top of
that.

(Id. at 18 (emphases added) .) Having decided that the
appropriate prison term for Chavez's narcotics conspiracy
conviction on count one was 25 years, the court imposed the
required 30-year term consecutively for count two, making Chavez's
total prison term 55 years, or 660 months.

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In this appeal, Chavez's principal contention is that the
district court erred in believing that, in arriving at a
reasonable total sentence, it was not authorized to impose a
shorter prison term for count one in light of the severe
consecutive prison term it was required to impose on count two.
We reject this contention.

Although this Court has not yet addressed this question,
we dealt with a similar issue in United States v. Stanley, 928
F.2d 575 (2d Cir. 1991) ("Stanley"), in the context of a
departure from the then-mandatory Guidelines. In Stanley, the
district court had been concerned about a sentencing disparity
resulting from the exercise of prosecutorial discretion benefiting
defendants who entered into plea agreements in which they admitted
their guilt to drug trafficking charges. Those defendants were
15 not charged with a firearm count under $ 924 (c) ; but for

a
defendant who chose to go to trial on similar drug trafficking
charges, the government added a § 924 (c) count that exposed that
defendant to an additional mandatory prison term of five years or
more. For the defendant in Stanley, who chose to go to trial and
was charged with and convicted of both drug trafficking and
firearm possession, the imprisonment range recommended by the
Guidelines on the narcotics count was 87-108 months, although the
recommended range would have been 108-135 months if there had been
no § 924 (c) count because a firearm enhancement would then have
been required for the narcotics count. Stanley's conviction on
the § 924 (c) count required an additional sentence of five years.

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The district court departed downward from the Guidelines range and
sentenced Stanley to 60 months on the narcotics count; the
additional five-year sentence on the firearm count brought
Stanley's total prison term to 120 months, i.e., a term that would
have been within the Guidelines range had there been no § 924 (c)
count .

We found that the government's election as to what charges
to bring against Stanley was within the proper bounds of
prosecutorial discretion, see Stanley, 928 F.2d at 578-79, and we
thus concluded that the downward departure granted by the district
court on the narcotics count was impermissible, stating in part as
follows:

It was the intention of Congress that the five-year
penalty mandated by § 924 (c) be imposed "in addition
to any other term of imprisonment." United States v.
Lawrence, 928 F.2d 36, 38 (2d Cir. 1991) (emphasis
added) . By reducing the "other term of
imprisonment, " i.e., the sentence on the underlying
narcotics offense, the district court ensured that
the defendant would not receive any additional
imprisonment term because of his § 924 (c) conviction.
Although technically complying with the statute, the
sentence imposed nullified the legislative intent of
additional punishment for violating § 924 (c) .

Stanley, 928 F.2d at 582 (emphases in Stanley) .

This observation has equal force here. Section 924 (c)
provides severe penalties for any person convicted of possessing a
firearm in furtherance of a federal drug trafficking crime,
including a "term of imprisonment of not less than 30 years" if
the weapon was "equipped with a firearm silencer." 18 U.S.C.
§ 924 (c) (1) (B) (ii). The section was plainly designed to impose
penalties that are cumulative to the penalties imposed for other

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crimes. First, it provides that these penalties "shall" be
imposed "in addition to the punishment provided for [the
underlying] drug trafficking crime." 18 U.S.C. § 924 (c) (1) (A)
(emphasis added) . Second, § 924 (c) provides that
" [n]otwithstanding any other provision of law, "

no term of imprisonment imposed on a person under
this subsection shall run concurrently with any other
term of imprisonment imposed on the person, including
any term of imprisonment imposed for the . . . drug
trafficking crime during which the firearm was used,
carried, or possessed.

Id. § 924 (c) (1) (D) (emphasis added). Thus, Congress expressly
provided that the prison term imposed for such a firearm offense
must be consecutive to the term imposed for the underlying
offense.

Section 3553 (a) of 18 U.S.C. sets out factors that the
sentencing court must consider in determining an appropriate
sentence, and these factors have been accorded greater prominence
in the wake of the ruling in United States v. Booker, 543 U.S.
220, 245 (2005), that the Guidelines are not mandatory. The
§ 3553 (a) factors include the need for the sentence imposed to
reflect the seriousness of the offense, to promote respect for the
law, to provide just punishment for the offense, to afford
adequate deterrence to criminal conduct, to protect the public
from further crimes of the defendant, and to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct; and consideration of
only the factors set out in § 3553 (a) could lead the court to
conclude that a shorter total sentence than the total specified

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for a § 924 (c) conviction and recommended for the underlying crime
would be appropriate. As set out above, however, § 924 (c)
instructs that its mandatory minimum penalties are not to be made
concurrent with any other penalties, including the penalty for the
offense underlying the § 924 (c) offense, " [n]otwithstanding any
other provision of law." 18 U.S.C. § 924 (c) (1) (D). See also
Kimbrough v. United States, 128 S. Ct. 558, 573 (2007)
(" [S]entencing courts, " although permitted by § 3553 (a), after
Booker, to deviate from an advisory-Guidelines-recommended range
of imprisonment based on their policy disagreements with the
Guidelines, "remain bound by the mandatory minimum sentences
prescribed in the [statutes] . ") .

Thus, as the Seventh Circuit stated in addressing an
issue similar to that presented here, there is

tension with section 3553 (a), but that very general
statute cannot be understood to authorize courts to
sentence below minimums specifically prescribed by
Congress. . . . That was the rule when the
guidelines were mandatory, . . . and it was not
changed by Booker. For in making the sentencing
guidelines advisory, the Court did not authorize
courts to sentence below the minimums prescribed not
by the guidelines but by constitutional federal
statutes.

United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007) ; see
id. at 434 (Booker "did not authorize district judges to ignore
statutory sentencing ranges") .

In sum, we conclude that a sentencing court is required
to determine the appropriate prison term for the count to which
the § 924 (c) punishment is to be consecutive; and if the court
reduces the prison term imposed for that underlying count on the

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ground that the total sentence is, in the court's view, too
severe, the court conflates the two punishments and thwarts the
will of Congress that the punishment imposed for violating
§ 924 (c) be "addition [al] " and "no [t] . . . concurrent [] . "

Our Sister Circuits that have addressed this question have
similarly reached this conclusion. See, e.g., United States v.
Hatcher, 501 F.3d 931, 933 (8th Cir. 2007) (sentencing court could
not permissibly "conflate[] the sentences for the § 924 (c)
offenses and the related [underlying] crimes"), cert. denied, 128
S. Ct. 1133 (2008); United States v. Franklin, 499 F.3d 578,
584-85 (6th Cir. 2007) ("When any downward variance of the
guideline range is based upon the effect of a mandatory sentence,
congressional intent is repudiated, just as if the mandatory
sentence itself had been reduced. ") ; United States v. Roberson,
474 F.3d at 436 (" [T]o use the presence of a section 924 (c) (1)
add-on to reduce the defendant's sentence for the underlying crime
would be inconsistent with Congress's determination to fix a
minimum sentence for using a firearm in [the underlying crime] .

If the judge reduces the defendant's sentence on the underlying
crime
from, say, 50 to 49 months because the defendant
[violated § 924 (c) (1) and] must be sentenced to 84 months on top
of the sentence for the underlying crime, the effect is to reduce
the statutory minimum sentence from 84 months to 83 months. "
(second emphasis in original; other emphases added) ) .

We conclude that the district court in the present case
correctly reasoned that it was required to determine an

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appropriate prison term for Chavez on the narcotics count and
correctly concluded that it was not permitted to reduce that
prison term on account of the mandatory minimum sentence provided
by § 924 (c) for the firearm count.

## C. Other Sentencing Contentions

### 1. Chavez

Chavez also contends that the district court, in making
its Guidelines calculations, erred in increasing his offense level
on the grounds that he was a leader of the conspiracy and was
responsible for conspiring to distribute more than 150 kilograms
of cocaine. These contentions are without merit and do not
require extended discussion.

The Guidelines provide that the offense level of a
defendant is to be increased if he "was an organizer or leader of
a criminal activity that involved five or more participants or was
otherwise extensive." Guidelines § 3B1.1 (a) . While the criminal
activity must be found to have involved five or more participants,
the defendant need not have been the leader of more than one other
participant for this adjustment to apply. See id. Application
Note 2; see also United States v. Zichettello, 208 F.3d 72, 107
(2d Cir. 2000), cert. denied, 531 U.S. 1143 (2001).

The record here shows that the conspiracy of which Chavez
was convicted involved many more than five participants, including
Chavez, Barraza who supervised the New York operation, Daniel
Barraza, Jose Luis Barraza, Ibarra, Che and other distributors to

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whom Ibarra delivered cocaine, and Acosta. And the evidence
discussed in Parts II.A.1. and 2. above showed that Chavez was a
leader of the conspiracy, as he, inter alia, gave instructions to
Barraza for the dilution of narcotics in Barraza's possession; had
the power to fire Ibarra, who had been hired by Barraza; and
instructed Barraza to hide in Mexico when law enforcement agents
7 were closing in on the organization's operations. Chavez also
acknowledged his own personal responsibility for the "debt" to
cocaine suppliers that resulted from the government's seizure of
large quantities of cocaine from coconspirators in New York. The
district court correctly increased Chavez's offense level for a
leadership role in the conspiracy.

With respect to narcotics quantity, the Guidelines provide
that a defendant is accountable not only for all the narcotics
with which he was directly involved, but also, "in the case of a
jointly undertaken criminal activity, all reasonably foreseeable
quantities of [narcotics] that were within the scope of the
criminal activity that he jointly undertook." Guidelines § 1B1. 3
Application Note 2. The record here was ample to show that the
organization's New York operations in 2002 alone involved more
than 150 kilograms of cocaine. It included Ibarra's testimony
that his first task for Barraza in May included picking up 50
kilograms from Acosta and delivering them to the organization's
distributors (see Tr. 397-400) ; that in September the quantities
of cocaine that Ibarra got from Acosta on three occasions totaled
46 kilograms (see id. at 405-06, 432-34); and that on two

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occasions in September, Ibarra went to Connecticut and picked up a
total of 140 kilograms of cocaine from another supplier for
delivery to the organization's distributors (see id. at 441-42,
468-69, 471). Thus, in these instances alone, the operation
overseen by Barraza handled 236 kilograms of cocaine. As Chavez
was Barraza's boss, these quantities were foreseeable to Chavez,
and the challenge to the district court's finding that he was
responsible for more than 150 kilograms of cocaine is meritless.

### 2. Acosta

Acosta's conviction of the conspiracy charged in count one
subjected him to a mandatory minimum prison term of 10 years. See
21 U.S.C. §§ 841 (a), 841 (b) (1) (A), 846. The district court
calculated that the advisory-Guidelines-recommended range of
imprisonment for him was 188-235 months. Acosta -- age 50 -- urged
the court to sentence him to less than 188 months, arguing
principally (1) that he had had an unfortunate childhood, being
abandoned by his father under the age of 10, not knowing who his
real family was, thinking his grandmother was his mother and then
learning otherwise, and being taken away from even her, and (2)
that even a 10-year term would mean that Acosta would be in prison
until he was past the age of 60. The court sentenced Acosta to
198 months' imprisonment. On appeal, Acosta contends that the
court erred because it rejected his contentions in the belief that
it could not take his tragic childhood into account unless his
experiences caused his crime, and that the court did not even

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consider his age. We disagree with Acosta's characterization of
the court's decision.

In sentencing Acosta, the district court stated in part as
follows :

Mr. Acosta . . . was a significant member of a very
major drug ring. He had significant responsibility
in handling large quantities of cocaine. I pause to
note [Acosta's] unfortunate upbringing, and that
certainly is tragic. And I feel for the child that
[Acosta's counsel] described. At the same time, what
stands before me is not a child but a man, a man who
is 50 years old who has -- and the nature of the crime
here is not a crime of violence or a crime of passion
or something that could be explained by psychological
damage caused by an unfortunate childhood. What we
have here is a crime carried out as a profession, as
a deliberate choice for making money.

(Acosta Sentencing Transcript at 11.) We read these statements
not as implying that the district court was imposing a requirement
that the defendant's unfortunate upbringing be causally related to
the crime at hand, but rather as showing that the district court
considered Acosta's age and childhood and found that they did not
constitute "mitigating circumstances" (id.) and that the
circumstances of Acosta's crime and conduct weighed against a
lower sentence.

In sum, the record reflects the district court's proper
consideration of the § 3553 (a) factors, and we see no basis for
finding that Acosta's sentence was unreasonable.

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# CONCLUSION

We have considered all of the arguments made by Chavez and
Acosta in support of their appeals and have found them to be
without merit. The judgments of the district court are affirmed.

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August Term, 2007 Argued: May 28, 2008 Decided: December 8, 2008 Docket Nos.… v. - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Affirmed. 24 25 26 27 28 ERIC SNYDER,…

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