United States v. Greenberg ( 2019 )


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  • 18‐1768
    United States v. Greenberg
    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.
    At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
    Square, in the City of New York, on the 16th day of May, two thousand
    nineteen.
    PRESENT: DENNIS JACOBS,
    PIERRE N. LEVAL,
    Circuit Judges,
    JESSE M. FURMAN,*
    District Judge.
    ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
    UNITED STATES OF AMERICA,
    Appellee,
    ‐v.‐                              18‐1768
    *Judge Jesse M. Furman, of the United States District Court for the Southern
    District of New York, sitting by designation.
    1
    DAVID GREENBERG,
    Defendant‐Appellant.
    ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
    FOR APPELLANT:                                Clinton W. Calhoun, III, Calhoun &
    Lawrence, LLP, White Plains, NY.
    FOR APPELLEE:                                 Ilan Graff, Assistant United States
    Attorney (Michael Gerber, Won S.
    Shin, Assistant United States
    Attorneys, of counsel), for Geoffrey
    S. Berman, United States Attorney
    for the Southern District of New
    York, New York, NY.
    Appeal from a judgment of the United States District Court for the
    Southern District of New York (Karas, J.).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
    ADJUDGED AND DECREED that the judgment of the district court be
    AFFIRMED.
    David Greenberg appeals from a judgment of the United States District
    Court for the Southern District of New York (Karas, J.) sentencing him principally
    to 180 months’ imprisonment after Greenberg pleaded guilty to one count of
    conspiracy to distribute narcotics in violation of 
    21 U.S.C. § 846
    . On appeal,
    Greenberg argues that he was entitled to relief from the applicable mandatory
    minimum sentence pursuant to the “safety valve” provisions of 
    18 U.S.C. § 3553
    (f) and United States Sentencing Guidelines § 5C1.2, and that his sentence
    was procedurally and substantively unreasonable. We assume the parties’
    familiarity with the underlying facts, the procedural history, and the issues
    presented for review.
    In early 2013, Greenberg was surveilled by New York state police during
    their investigation of drug trafficking in the Bronx. Investigators saw Greenberg
    2
    make about twenty visits to a suspected “stash house” in Newburgh, New York,
    emerging each time with at least one paper bag. Greenberg was arrested in June
    2013 after investigators observed him handing a paper bag to an individual in a
    car who was arrested shortly thereafter and found to be in possession of more
    than 100 grams of cocaine. After posting bail, Greenberg remained at liberty
    until October 2013, during which time he cooperated with the government by,
    inter alia, recording conversations and participating in controlled narcotics
    purchases at the direction of the Federal Bureau of Investigation.
    In September 2013, Greenberg pleaded guilty (pursuant to a cooperation
    agreement) to conspiracy to traffic more than five kilograms of cocaine, more than
    one kilogram of heroin, and quantities of marijuana, MDMA, oxycodone, and
    PCP between 1995 and 2013. The cooperation agreement required that
    Greenberg “truthfully and completely disclose all information with respect to the
    activities of himself and others concerning all matters about which [the
    government] inquire[d] of him,” and “commit no further crimes whatsoever.”
    In October 2013, in large part due to Greenberg’s cooperation, the
    government unsealed an indictment charging fourteen defendants, each of whom
    was convicted. Shortly thereafter, the government learned that Greenberg
    violated his cooperation agreement by, inter alia, failing to disclose to law
    enforcement a stash house where narcotics, firearms, and ammunition were
    stored; and instructing another investigative target, John Zgrodec, to dispose of
    Greenberg’s firearm after his arrest. Greenberg confessed his misconduct and
    was remanded to custody in October 2013. He subsequently informed the
    government that Zgrodec kept a “duffel bag with guns” at the stash house.
    The offense of Greenberg’s conviction carries a ten‐year mandatory
    minimum sentence. Prior to sentencing, Greenberg’s counsel advised the
    government that he considered Greenberg potentially eligible for relief from the
    mandatory minimum sentence pursuant to the “safety valve” provisions of 
    18 U.S.C. § 3553
    (f) and United States Sentencing Guidelines (“U.S.S.G.” or
    “Guidelines”) § 5C1.2. The government responded that Greenberg’s possession
    of a firearm as part of the offense conduct disqualified him from safety valve
    relief. Nevertheless, Greenberg participated in a “safety valve proffer” during
    3
    which he informed the government that the duffel bag at the stash house
    contained an assault rifle, and that Greenberg also kept a handgun‐‐which he
    claims was inoperable‐‐at the stash house.
    At sentencing, the district court determined that Greenberg was ineligible
    for safety valve relief because he possessed a firearm in connection with the
    offense of conviction. The court imposed a sentence principally of 180 months’
    imprisonment.
    On appeal, Greenberg argues that the district court erred in denying safety
    valve relief, because: (A) it incorrectly adopted a per se rule that constructive
    possession of a firearm in a drug stash house qualifies as possession “in
    connection with” a narcotics conspiracy; and (B) there was no proof or finding
    that the firearm at issue was possessed “in connection with” Greenberg’s offense
    of conviction. He additionally argues that his sentence was procedurally and
    substantively unreasonable.
    We review the sentencing court’s factual findings for clear error, but we
    review the court’s interpretation of the safety valve provisions de novo. United
    States v. Ortiz, 
    136 F.3d 882
    , 883 (2d Cir. 1997). Review for procedural and
    substantive reasonableness is akin to a “deferential abuse‐of‐discretion
    standard.” United States v. Cavera, 
    550 F.3d 180
    , 189 (2d Cir. 2008) (in banc)
    (quoting Gall v. United States, 
    552 U.S. 38
    , 41 (2007)). However, “[a] sentencing
    court’s legal application of the Guidelines is reviewed de novo.” United States
    v. Desnoyers, 
    708 F.3d 378
    , 385 (2d Cir. 2013).
    1.     The safety valve provisions set forth in 
    18 U.S.C. § 3553
    (f) and
    U.S.S.G. § 5C1.2 instruct a district court to sentence without regard to an
    applicable statutory mandatory minimum if the defendant establishes that:
    (i) the defendant has no more than one criminal‐history point; (ii) the
    defendant did not use violence or credible threats of violence or
    possess a firearm or other dangerous weapon in connection with the
    offense; (iii) no one was killed or seriously hurt as a result of the
    offense; (iv) the defendant was not an organizer, leader, manager, or
    4
    supervisor in the offense and was not engaged in a continuing
    criminal enterprise; and (v) not later than the time of the sentencing
    hearing, the defendant has truthfully provided to the Government all
    information and evidence the defendant has concerning the offense
    [or offenses that were part of the same course of conduct or of a
    common scheme or plan].
    Ortiz, 
    136 F.3d at 883
     (internal quotation marks and alterations omitted); U.S.S.G.
    § 5C1.2; 
    18 U.S.C. § 3553
    (f). The burden is on the defendant to prove entitlement
    to safety‐valve relief by a preponderance of the evidence. See United States v.
    Jimenez, 
    451 F.3d 97
    , 102 (2d Cir. 2006).
    For a firearm to be used “in connection with the offense” under § 5C1.2,
    thereby precluding safety valve relief, the firearm “at least must facilitate, or have
    the potential of facilitating, the drug trafficking offense.” United States v.
    DeJesus, 
    219 F.3d 117
    , 122 (2d Cir. 2000) (quoting Smith v. United States, 
    508 U.S. 223
    , 238 (1993)). For purposes of the safety valve, possession includes
    “constructive possession, at least where the defendant keeps the weapon under
    his personal dominion and control.” United States v. Herrera, 
    446 F.3d 283
    , 287
    (2d Cir. 2006).
    The district court found Greenberg ineligible for safety valve relief because
    he admittedly had constructive possession of the rifle at the stash house, which
    (as the court emphasized) was “ground zero of the drug operation” and where
    Greenberg had access to the rifle. Greenberg argues that the district court thus
    adopted a per se rule that a firearm possessed at a stash house is possessed “in
    connection with” a drug offense. Such a categorical rule would be inconsistent
    with the principle that “the firearm must have some purpose or effect with
    respect to the drug trafficking crime; its presence or involvement cannot be the
    result of accident or coincidence.” See DeJesus, 
    219 F.3d at 122
     (quoting Smith,
    
    508 U.S. at 238
    ). We reject the argument. The district court did not adopt such a
    rule. To the contrary, the court indicated at sentencing that the analysis might
    have been different if the rifle had been stored in a less accessible place, such as
    the attic or garage of the stash house.
    5
    In any event, the court’s factual finding that Greenberg’s account of the
    firearms was inconsistent and lacked credibility was not clearly erroneous.
    Greenberg argued that his possession of the rifle was unconnected to the narcotics
    conspiracy because the rifle was merely stored in the stash house by Zgrodec and
    was not there for the purpose of furthering the drug business. However, the
    district court expressly declined to credit Greenberg’s factual claims, finding that
    they were undermined by his inconsistent representations regarding the firearms
    in the stash house. As the district court observed, Greenberg gave “a number of
    different versions about how many guns were in the bag,” “whether [a] handgun
    was at the stash house . . . or just the rifle,” and “when he disposed of the
    handgun.” Accordingly, we see no clear error in the district court’s finding that
    Greenberg’s factual claims were insufficient to show entitlement to safety valve
    relief.
    2.     “A district court commits procedural error where it fails to calculate
    (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing
    Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects
    a sentence based on clearly erroneous facts, or fails adequately to explain the
    chosen sentence.” United States v. Robinson, 
    702 F.3d 22
    , 38 (2d Cir. 2012)
    (citing Gall, 
    552 U.S. at 51
    ).
    Greenberg argues that his sentence was procedurally unreasonable because
    the district court erroneously denied him safety valve relief, and accordingly
    denied him a two‐level offense level reduction under U.S.S.G. § 2D1.1(b)(18).
    Because the district court did not err in finding that Greenberg failed to establish
    his entitlement to safety valve relief, the district court did not commit procedural
    error by declining to grant a two‐level reduction pursuant to § 2D1.1(b)(18).
    3.      “In examining the substantive reasonableness of a sentence, we
    review the length of the sentence imposed to determine whether it cannot be
    located within the range of permissible decisions.” United States v. Matta, 
    777 F.3d 116
    , 124 (2d Cir. 2015) (internal quotation marks omitted). We will “set
    aside a district court’s substantive determination only in exceptional cases.”
    Cavera, 
    550 F.3d at 190
     (emphasis omitted).
    6
    Greenberg argues that the principal motivating factor for his 180‐month
    sentence was his breach of the cooperation agreement, and that this factor was
    insufficient to justify his sentence, which was far higher than it would have been
    had he complied with the cooperation agreement. To support the notion that his
    sentence was greater than necessary, Greenberg cites his substantial assistance to
    the government, the fact that his crimes did not involve violence, and his
    rehabilitation while incarcerated.
    The transcript of Greenberg’s sentencing hearing demonstrates that the
    district court fully considered the relevant sentencing factors in imposing
    Greenberg’s sentence. The court discussed, inter alia: the seriousness of
    Greenberg’s narcotics conspiracy and his prior criminal history; the nonviolent
    nature of his conduct; the substantial cooperation he provided the government;
    the failure to comply with his cooperation agreement and the importance of
    protecting the integrity of the cooperation process; and letters submitted to the
    court attesting to his character. The district court clearly gave thoughtful
    consideration to the relevant sentencing factors when concluding that a
    below‐Guidelines sentence of 180 months was appropriate, and we will not
    “substitute our own judgment for the district court’s on the question of what is
    sufficient to meet the § 3553(a) considerations.” Cavera, 
    550 F.3d at 189
    .
    We have considered Greenberg’s remaining arguments and conclude they
    are without merit. Accordingly, the judgment of the district court is
    AFFIRMED.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, CLERK
    7