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United States v. Zelaya Romero

United States Court of Appeals, Second Circuit

September 20, 2018

United States of America, Appellee,
v.
Ludwig Criss Zelaya Romero, Mario Guillermo Mejia Vargas, Juan Manuel Avila Meza, Carlos Jose Zavala Velasquez, Victor Oswaldo Lopez Flores, Jorge Alfredo Cruz Chavez, Carlos Alberto Valladares Zuniga, Defendants, Fabio Porfirio Lobo, AKA Fabio Porfirio Lobo Lobo, AKA Fabio Lobo, Defendant-Appellant.

          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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