United States v. Francis ( 2015 )

14-2409-cr
United States v. Francis
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of May, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-2409-cr
16
17 BLAKE FRANCIS,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: JAY S. OVSIOVITCH (Robert G.
22 Smith, on the brief), Federal
23 Public Defender’s Office for the
24 Western District of New York,
25 Rochester, New York.
26
27 FOR APPELLEE: STEPHAN J. BACZYNSKI, for
28 William J. Hochul, Jr., United
1
1 States Attorney for the Western
2 District of New York, Buffalo,
3 New York.
4
5 Appeal from a judgment of the United States District
6 Court for the Western District of New York (Larimer, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11
12 Blake Francis appeals from the judgment of the United
13 States District Court for the Western District of New York
14 (Larimer, J.), sentencing him to a 156-month term of
15 imprisonment for conspiring to distribute narcotics. We
16 assume the parties’ familiarity with the underlying facts,
17 the procedural history, and the issues presented for review.
18
19 In May 2008, a grand jury charged Francis with one
20 count of conspiring to distribute 1,000 kilograms or more of
21 marijuana, in violation of 21 U.S.C. § 846, and one count of
22 firearms possession in furtherance of the marijuana
23 conspiracy, in violation of 18 U.S.C. § 924(c)(1), as well
24 as forfeiture counts. Pursuant to a plea agreement, Francis
25 pleaded guilty to the conspiracy count only,1 and sentencing
26 was scheduled for February 2010.
27
28 Francis was permitted to remain at liberty pending
29 sentencing, and absconded. A bench warrant was issued, and
30 Francis was captured in 2014 following a high-speed chase.
31 At sentencing, Francis argued that, notwithstanding his
32 willful flight and attempt to elude capture, he was entitled
33 to a two-level reduction for acceptance of responsibility
34 under § 3E1.1 of the U.S. Sentencing Guidelines
35 (“Guidelines”), based solely on his guilty plea. See
36 U.S.S.G. § 3E1.1. He conceded, however, that the district
37 court could properly apply a two-level enhancement for
38 obstruction of justice in light of his flight. See id.
39 § 3C1.1.
40
1
The agreement further required Francis to admit
that the firearms he possessed in furtherance of the
conspiracy were subject to forfeiture.
2
1 The district court applied the enhancement for
2 obstruction of justice, but without the reduction for
3 acceptance of responsibility, reasoning that the latter was
4 inapplicable in light of the former. See U.S.S.G. § 3E1.1
5 app. note 4. The court calculated the advisory Guidelines
6 range to be 188 to 235 months, and imposed a sentence of 156
7 months.
8
9 On appeal, Francis argues that the court’s Guidelines
10 calculation was erroneous and that the below-Guidelines
11 sentence was substantively unreasonable. We review
12 sentences for “both procedural error and substantive
13 reasonableness.” United States v. Tutty, 612 F.3d 128, 130
14 (2d Cir. 2010). Procedural error encompasses, among other
15 things, “failing to calculate (or improperly calculating)
16 the Guidelines range,” and a sentence is substantively
17 unreasonable if it “cannot be located within the range of
18 permissible decisions.” Id. at 131 (internal quotation
19 marks omitted).
20
21 The district court did not commit procedural error by
22 declining to apply the adjustment for acceptance of
23 responsibility under § 3E1.1. As the court observed, that
24 adjustment is generally unavailable when a defendant has
25 engaged in conduct resulting in a § 3C1.1 enhancement for
26 obstruction of justice. See U.S.S.G. § 3E1.1 app. note 4;
27 United States v. Loeb, 45 F.3d 719, 722 (2d Cir. 1995).
28 While the Guidelines leave open the possibility of
29 “extraordinary cases in which adjustments under both
30 §§ 3C1.1 and 3E1.1 may apply,” U.S.S.G. § 3E1.1 app. note 4,
31 Francis has identified no such extraordinary circumstances
32 here. The fact of pleading guilty is not an extraordinary
33 circumstance. See United States v. Savoca, 596 F.3d 154,
34 159 (2d Cir. 2010). Moreover, it is “well-established that
35 by willfully failing to appear for sentencing, a defendant
36 fails to accept responsibility for the offense.” Loeb, 45
37 F.3d at 722. We also find no merit in the argument that the
38 below-Guidelines sentence imposed in this case was
39 substantively unreasonable.
40
3
1 For the foregoing reasons, and finding no merit in
2 Francis’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
4