Argued: August 23, 2018
Appeal
from the United States District Court for the Southern
District of New York (Schofield, J.) No. 15-174
Appeal
from a judgment of the United States District Court for the
Southern District of New York (Schofield, J.)
sentencing Defendant-Appellant Fabio Porfirio Lobo to 288
months of imprisonment pursuant to his guilty plea for
conspiracy to manufacture and distribute, and to import into
the United States, five or more kilograms of cocaine. We hold
principally that the district court did not err in applying
the enhancement under U.S.S.G. § 2D1.1(b)(15)(C) to
calculate Lobo's Guidelines score, properly determining
that Lobo's drug-related activity outside the United
States constituted "direct[] involve[ment] in the
importation of a controlled substance."
AFFIRMED.
Manuel
Retureta, Retureta & Wassem, PLLC, Washington, DC, for
Defendant-Appellant.
Emil
J. Bove III, Assistant United States Attorney (Matthew
Laroche and Karl Metzner, Assistant United States Attorneys,
on the brief), for Geoffrey S. Berman, United States Attorney
for the Southern District of New York, New York, NY, for
Appellee.
Before: Parker, Hall, Lohier, Circuit Judges.
PER
CURIAM.
Defendant-Appellant
Fabio Porfirio Lobo ("Lobo") appeals from a
sentence imposed pursuant to a judgment entered in the United
States District Court for the Southern District of New York
(Schofield, J.). Lobo pleaded guilty to one count of
conspiracy to manufacture and distribute, and to import into
the United States, five or more kilograms of cocaine, in
violation of 21 U.S.C. § 963.[1] He was sentenced to 288
months of imprisonment to be followed by five years of
supervised release. Lobo argues that the district court erred
in finding that he was "directly involved in the
importation of a controlled substance" cognizable under
U.S.S.G. § 2D1.1(b)(15)(C) because none of his acts
physically occurred in the United States and because the
government failed to demonstrate that the shipments of
cocaine he was involved with transporting were actually
delivered to the United States. We write here to address the
application of U.S.S.G. § 2D1.1(b)(15)(C). In a summary
order filed simultaneously with this opinion, we write
separately to address Lobo's remaining
arguments.[2]
We hold
that the district court did not err in applying the section
2D1.1(b)(15)(C) enhancement to its Guidelines calculation.
Lobo specifically pleaded guilty to conspiracy to import
cocaine, and the government presented sufficient evidence to
show that Lobo participated directly in transporting hundreds
of kilograms of cocaine from South America through Honduras
for Mexican drug cartels to smuggle into the United States.
I.
BACKGROUND
Lobo is
the son of a former President of Honduras. During the
relevant time, Lobo used his position to offer security and
assistance to the "Cachiros," a violent drug
trafficking organization, in its distribution of large
quantities of cocaine from South America to the United States
through Honduras on behalf of Mexican drug-traffickers. On
May 16, 2016, Lobo pleaded guilty to a one-count indictment
charging him with conspiracy to manufacture and distribute,
and to import into the United States, five or more kilograms
of cocaine, in violation of 21 U.S.C. § 963.
A.
Fatico Hearing
After
pleading guilty, the parties requested an evidentiary hearing
pursuant to United States v. Fatico, 603 F.2d 1053
(2d Cir. 1979). Lobo objected to several of the
government's proposed sentencing enhancements, including
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