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United States v. Pena

United States Court of Appeals, Second Circuit

May 7, 2014

UNITED STATES OF AMERICA, Appellee,
v.
ONEIL PENA, Defendant-Appellant

Submitted March 12, 2014.

Page 102

Oneil Pena appeals from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.), convicting him of conspiracy to distribute and possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. Specifically, Pena challenges the district court's application of the sentencing enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. For the following reasons, we vacate the district court's judgment and remand for resentencing consistent with this opinion.

DON D. BUCHWALD, Kelley Drye & Warren LLP, New York, New York, for Appellant.

ANDREA L. SURRATT (Brent S. Wible, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Before: JACOBS and POOLER, Circuit Judges, Romá n, District Judge.[*]

OPINION

Page 103

PER CURIAM:

Oneil Pena was convicted of one count of conspiracy to distribute and possess with intent to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. § 846. At sentencing, the district court applied a two-level enhancement to Pena's offense level for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, based on written statements made in support of his motion to suppress. On appeal, Pena challenges the applicability of the enhancement on the

Page 104

ground that the relevant statements do not demonstrate a willful intent to commit perjury. For the following reasons, we vacate the district court's judgment and remand for resentencing consistent with this opinion.

BACKGROUND

Prior to boarding a plane from the Dominican Republic to New York in April 2012, Pena ingested 57 pellets containing a total of 534 grams of cocaine. Upon his arrival at John F. Kennedy International Airport, customs officials acted on a tip that he was smuggling drugs, stopped him and conducted a private patdown, without result. Pena consented to an x-ray, which revealed the pellets. After his arrest, he was interviewed by an agent of the Drug Enforcement Administration (" DEA" ), and confessed.

Pena was indicted on one count of conspiracy to distribute and possess with intent to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. ยง 846. On August 6, 2012, Pena moved to suppress the pellets as evidence on the grounds that: the officers lacked reasonable suspicion; the x-ray consent was made under duress; and the confession was the result of an improper two-step interrogation ...


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