Internally Inconsistent Testimony by Defendant at Fatico Hearing Supported Adverse Credibility Finding

UNITED STATES V. NUNEZ, ET. AL., NO. 11-5019-cv (2D CIR. DEC. 16, 2013) (LIVINGSTON, LYNCH, AND HOHIER) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this appeal challenged his sentence as procedurally unreasonable.  Specifically, he claimed that the district court erroneously denied him safety valve relief, held him responsible for 5 to 15 kilograms of cocaine, and denied a departure for acceptance of responsibility.  The defendant was convicted after trial of participating in a drug conspiracy.  The district court conducted a Fatico hearing prior to imposing sentence and credited another witness’s testimony over the defendant’s.  The Court held that there was no error in this credibility finding much less clear error, which is the standard of review for findings of fact made after a Fatico hearing.  The defendant’s testimony regarding a minimal number of drug transactions was internally inconsistent the amount of money he admitted having in his home.  The reasons for having this money, too, changed during his testimony.  The witness’s testimony was “more coherent.”  Having affirmed the credibility finding, no dispute regarding the district court’s sentencing decisions existed.