UNITED STATES OF AMERICA, Appellee, v. DARIO PUERTA, Defendant-Appellant.

No. 06-5320-cr.United States Court of Appeals, Second Circuit.
August 14, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the District of Connecticut (Underhill, J.).

ON CONSIDERATION WHEREOF, it is herebyORDERED, ADJUDGED, and DECREED that the order of the district court dated November 1, 2006, be and hereby is AFFIRMED.

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For Defendant-Appellant: JOHN T. WALKLEY, Monroe, CT.

For Appellee: PAUL A. MURPHY (Sandra S. Glover, of counsel) Assistant United States Attorneys for
Kevin J. O’Connor, United States Attorney for the District of Connecticut, Bridgeport, CT.


[1] The Honorable Eric N. Vitaliano of the United States District Court for the Eastern District of New York, sitting by designation.

The defendant Dario Puerta appeals from an order of the district court entered November 1, 2006, declining to resentence him following a remand from this court pursuant t United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.

Puerta’s sole challenge to his sentence — principally to 121 months’ imprisonment for his conviction after a guilty plea to one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 — is that the district court violated the Sixth Amendment by making the factual finding that Puerta played the role of a “manager” or “supervisor” in the offense, notwithstanding that Puerta conceded this fact at his original sentencing hearing. Puerta argues that absent this finding, he would have been eligible for safety-valve relief from the ten-year mandatory-minimum sentence for his offense under 18 U.S.C. § 3553(f). In his view, then, the district court’s factual findings allowed it to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Puerta, however, faces the insuperable obstacle that we have rejected this very argument, holding

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that a district court may find by a preponderance of the evidence that a defendant was a “supervisor” in the offense, and is therefore not entitled to safety-valve relief, because the safety-valve provisions serve as a mechanism for reducing sentences, rather than increasing them. United States v. Holguin, 436 F.3d 111, 118-19 (2d Cir. 2006).

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

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