20-778 United States v. Sainfil In the United States Court of Appeals For the Second Circuit August Term, 2021 No. 20-778 UNITED STATES OF AMERICA, Appellee, v. OVELL GAHAGEN, AKA O, QUINCY HOMERE, AKA Q, MARCUS WELLS, VINCENT BIFOLCO, JAYSHANT ROSE, AKA DRED, Defendants, ANAEL SAINFIL, AKA M, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of New York ARGUED: MAY 17, 2022 DECIDED: AUGUST 10, 2022 Before: KEARSE, JACOBS, and NARDINI, Circuit Judges. On January 25, 2018, a jury convicted Anael Sainfil of conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371; armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d); and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). The United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) sentenced Sainfil to 219 months in prison. Sainfil appeals, challenging the district court’s denial of his motion for a new trial based on his counsel’s purported ineffective assistance in (a) failing to move to suppress Sainfil’s pre-Miranda statement to an agent of the Federal Bureau of Investigation and (b) conceding to the jury that Sainfil was outside the bank when it was robbed. Sainfil also challenges the sufficiency of the evidence and argues that his sentence was procedurally and substantively unreasonable. Among other things, Sainfil argues that the district court clearly erred in determining that his co-defendant’s use of body armor during the armed robbery was reasonably foreseeable. We find no merit in these claims and accordingly AFFIRM the judgment of the district court. Judge Jacobs concurs in part and dissents in part in a separate opinion. MARK MISOREK (Kevin Trowel, on the brief), Assistant United States Attorneys, on behalf of Breon Peace, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee. MICHAEL RAYFIELD (Nicolas E. Rodriguez, on the brief), Mayer Brown LLP, New York, NY, for Defendant-Appellant. 2 WILLIAM J. NARDINI, Circuit Judge: A jury convicted defendant Anael Sainfil of armed bank robbery and related offenses in connection with the November 2015 robbery of a Wells Fargo Bank in Hempstead, New York. Sainfil moved for a judgment of acquittal under Rule 29 and a new trial under Rule 33 of the Federal Rules of Criminal Procedure. The United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) denied both motions and sentenced Sainfil to 219 months in prison. On appeal, Sainfil challenges the district court’s denial of his Rule 33 motion based on his trial counsel’s purported ineffective assistance in (a) failing to move to suppress Sainfil’s pre- Miranda statement to an agent of the Federal Bureau of Investigation (“FBI”), which effectively admitted that he was outside the bank when it was robbed, and (b) conceding that fact before the jury and arguing that his presence was merely coincidental. Sainfil also challenges the sufficiency of the evidence and argues that his sentence 3 was procedurally and …
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