UNITED STATES of America, Appellee, v. Tony FELICIANO-GALVES, a/k/a Pelotero, Defendant-Appellant,, 519 F. App'x 66

SUMMARY ORDER Tony Felieiano-Galves appeals from a judgment of conviction entered on January 18, 2011, in the United States District Court for the Southern District of New York (Stein, /.) following a jury trial. The jury convicted on both counts of the Superseding Indictment: (1) conspiring to distribute and to possess with the intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846, and (2) distributing and possessing with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(A).

We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. The jury found, specifically, that the conspiracy count (Count

I) involved more than 280 grams of crack cocaine, and that the distribution count (Count II) involved 50 grams or more, but less than 280 grams. On January 11, 2011, Appellant was sentenced to concurrent terms of ten years’ imprisonment, to be followed by five years of supervised release. On appeal, Appellant seeks resentencing in accordance with the Fair Sentencing Act of 2010 (“FSA”), Public Law No. 111-220, 124 Stat. 2872 (2010), in light of Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).

Dorsey held that the FSA applies to defendants (like Appellant) whose crimes preceded the effective date of the Act (August 3, 2010), but who were not sentenced until after the Act took effect. Id. at 2335. Here, however, the failure to sentence pursuant to the FSA is harmless error because the conviction for conspiracy to distribute more than 280 grams of crack cocaine triggers a ten-year mandatory minimum sentence under the FSA. See FSA § 2(a) (codified at 21 U.S.C. § 841(b)(l)(A)(iii)).

Appellant seeks to avoid this outcome by arguing that there was insufficient evidence to convict him of the conspiracy charge. This argument is unavailing. In reviewing a jury’s verdict, this Court “considers] the evidence in its totality, not in isolation,” United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000), and views that evidence in the light most favorable to the government, see United States v. Temple, 447 F.3d 130, 136-37 (2d Cir.2006). A defendant challenging the sufficiency of the evidence bears a “very heavy burden.” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002).

The jury’s verdict must be sustained if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). At trial, FBI Special Agent Scott Byers testified extensively about Appellant’s post-arrest admissions and his later statements at the July 2009 proffer session, evidencing his (ultimately unsuccessful) efforts to sell an additional 300 grams of crack cocaine. A 143-48.

According to Agent Byers, on both occasions, Appellant described (1) conversations with a confidential informant named Tony about a 300-gram sale, (2) a meeting with Tony and a suspected drug trafficker named Miguel in order to arrange a 300-gram sale, and (3) a conversation with Victor (his supplier), who lacked current inventory to fulfill the order. Call logs indicated that Appellant and Tony were in frequent contact in the period leading up to the unconsummated 300-gram sale.

In addition, Appellant’s wiretapped statements during the April 21 sale — in particular, Appellant’s remark that he could “move anything ... something heavy,” A 103, and his suggestion that he could procure more “raw and good” cocaine, “however you want it,” id. — evinced an intent to engage in subsequent transactions. Finally, Appellant admitted at trial that he discussed the 300-gram sale with Tony: Tony “wanted me to try to get him 300 [grams] or more” of crack cocaine. A 393. There was therefore ample evidence to support the verdict that Appellant conspired to distribute more than 280 grams of cocaine.

Appellant, therefore, has not satisfied his “very heavy burden” of demonstrating the insufficiency of the evidence. Desena, 287 F.3d at 177. Finally, there is no question that the relevant quantity (280 grams or more) was treated as an element of the offense and proved beyond a reasonable doubt. As a result, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) is only implicated insofar as the indictment did not contain the precise quantity that the jury later found, instead chai'ging Appellant broadly with conspiracy to distribute fifty grams or more of crack cocaine.

But “an Apprendi violation concerning an omission from an indictment is not noticeable as plain error where the evidence is overwhelming that the grand jury would have found the fact at. issue.” United States v. Confredo, 528 F.3d 143, 156 (2d Cir.2008). As outlined above, it is clear that the grand jury, reviewing the evidence under the far more lenient probable cause standard, would have reached the same conclusion as the petit jury with regard to drug quantity. Cf. United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).

For the foregoing reasons, and finding no merit in Appellant’s other arguments, we hereby AFFIRM the judgment of the district court.