UNITED STATES of America, Appellee, v. Jorge Manuel TORRES-TEYER and Oscar Moreno Aguirre, Defendants-Appellants.

Nos. 06-5840-cr (L), 07-0471-cr (con).United States Court of Appeals, Second Circuit.
March 7, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from judgments of the United States District Court for the Southern District of New York (Gerard E. Lynch, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgments be, and they hereby are, AFFIRMED.

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Robin C. Smith, Brooklyn, NY, for Appellant Oscar Moreno Aguirre.

Jorge Manuel Torres-Teyer, pro se; Jonathan Edelstein, New York, N.Y. (on supplemental briefing), for Appellant Jorge Manuel Torres-Teyer.

Anirudh Bansal, Katherine Polk Failla, Assistant United States Attorneys, New York, NY, for Preet Bharara, United States Attorney for the Southern District of New York.

PRESENT: RALPH K. WINTER, ROBERT D. SACK, Circuit Judges, and BRIAN M. COGAN, District Judge.[*]

[*] The Honorable Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation.

SUMMARY ORDER
On or about May 24, 2003, and June 9, 2003, respectively, Jorge Manuel Torres-Teyer and Oscar Moreno Aguirre each pleaded guilty to one count of conspiracy to import cocaine in violation of 21 U.S.C. §§ 963, 952(a), and 960(b)(1)(B)(ii); one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A); and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). We assume the parties’ familiarity with the underlying facts of these cases and the issues on appeal.

On May 4, 2004, the district court sentenced Torres-Teyer principally to 396 months’ imprisonment on the two narcotics counts and 60 months’ imprisonment on the firearm possession count, to be served consecutively, for a total of 456 months’ imprisonment. See United States v. Torres Teyer, 322 F.Supp.2d 359, 363-73 (2004). On the same day, the district court sentenced Moreno Aguirre principally to 144 months’ imprisonment on the two narcotics counts and 60 months’ imprisonment on the firearm possession count, to be served consecutively, for a total of 204 months’ imprisonment. See id. at 378-84.

Moreno Aguirre and Torres-Teyer each appealed. Moreno Aguirre challenged both his conviction and his sentence, while Torres-Teyer appealed only his sentence. On appeal, we affirmed Moreno Aguirre’s conviction, but vacated and remanded both sentences for further review by the district court in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). See United States v. Magana, 147 Fed.Appx. 200, 201-02 (2d Cir. 2005) (summary order).

On remand, the district court declined to resentence Torres-Teyer, ruling that there was no basis for concluding that his sentence would have been different under a non-mandatory Guidelines regime. See United States v. Torres Teyer, No. 01 Cr. 21(GEL), 2006 WL 3511885, at *3-11, 2006 U.S. Dist. LEXIS 88150, at *10-32 (S.D.N.Y. Dec. 6, 2006). The district court determined, however, that resentencing for Moreno Aguirre was required. See id.
at * 13-15, 2006 U.S. Dist. LEXIS 88150, at *37-44.

After considering new, mitigating evidence concerning Moreno Aguirre’s diminished mental capacity, the district court resentenced Moreno Aguirre on February 2, 2007, to the statutory mandatory minima of 120 months’ imprisonment on the two narcotics counts and 60 months’ imprisonment on the firearm possession count, to be served consecutively, for a total of 180 months’ imprisonment.

Torres-Teyer and Moreno Aguirre again filed appeals. Torres-Teyer initially proceeded pro se, while Moreno Aguirre was represented by counsel. In 2007, counsel for Moreno Aguirre moved to

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withdraw her representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), and the government cross-moved for summary affirmance. On June 25, 2009, we denied both motions and ordered full briefing. We specifically requested that the parties address the effect of United States v. Williams, 558 F.3d 166
(2d Cir. 2009), abrogated by Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), on the lawfulness of Moreno Aguirre’s sentence.[1]

On January 20, 2010, we affirmed the sentence of a third codefendant, Victor Manuel Adan Carrasco, and reserved decision on Torres-Teyer’s and Moreno Aguirre’s appeals. Se United States v. Carrasco, 361 Fed.Appx. 230, 231 (2d Cir. 2010) (summary order). By order of January 21, 2010, we stayed the two remaining appeals pending resolution of the government’s petition for certiorari i Williams. We also appointed Torres-Teyer pro bono counsel to assist him with any further briefing concerning the lawfulness of Torres-Teyer’s consecutive sentence on his section 924(c) conviction.

On November 29, 2010, the Supreme Court grante certiorari in Williams and vacated that judgment for further consideration in light of the Court’s decision in Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010).[2] See United States v. Williams, ___ U.S. ___, 131 S.Ct. 632, 178 L.Ed.2d 471
(2010). On December 8, 2010, we lifted the stay of these appeals and directed supplemental letter briefing from the parties.

Upon reviewing the parties’ supplemental submissions, and in light of the Supreme Court’s ruling in Abbott, we conclude that the defendants’ challenges to the mandatory consecutive sentences imposed for their respective section 924(c) convictions are without merit.

Moreno Aguirre, aside from arguing that he should not have received a consecutive sentence for his section 924(c) conviction, identifies no other error in the proceedings o Crosby remand.

Torres-Teyer makes several arguments on appeal that are unrelated to either the issue of consecutive sentencing under section 924(c) or to the district court’s decision not to resentence him on Crosby remand. Torres-Teyer argues: (1) that the government breached a plea agreement by seeking a two-level sentence enhancement for obstruction of justice; (2) that his extradition to the United States from Belize in 2002 was unlawful; (3) that his guilty plea in 2003 lacked a sufficient factual predicate with respect to the section 924(c) charge; and (4) that the U.S. government unlawfully revoked his family members’ visas.

As a threshold matter, several of these arguments amount to challenges to his underlying conviction. Insofar as those arguments were not raised by Torres-Teyer in his previous appeal, see Magana, 147 Fed.Appx. at 201-02, they cannot be raised now. See, e.g., United States v. Williams, 475 F.3d 468, 475 (2d Cir. 2007); United States v. Quintieri, 306 F.3d 1217, 1229-30 (2d Cir. 2002) cert. denied, 539 U.S. 902, 123 S.Ct. 2246,

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156 L.Ed.2d 110 (2003); United States v. Ben Zvi, 242 F.3d 89, 95-96 (2d Cir. 2001). To the extent that Torres-Teyer’s arguments have not been forfeited, we have considered them and conclude that they are without merit.

For the foregoing reasons, the judgments of the District Court are hereby AFFIRMED.

[1] In Williams, a panel of this Court held that “the mandatory minimum sentence under Section 924(c)(1)(A) is . . . inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense.” Williams, 558 F.3d at 168.
[2] In Abbott, the Supreme Court held, abrogatin Williams, that “a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.”Abbott, 131 S.Ct. at 23.
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