United States v. Wright , 420 F. App'x 70 ( 2011 )

07-5020-cr
United States v. Wright
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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 20th day of April, two thousand eleven.
PRESENT: JOSEPH M. McLAUGHLIN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 07-5020-cr
EDDIE WRIGHT, a.k.a. PROFIT,
Defendant-Appellant.
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APPEARING FOR APPELLANT: ALAN M. NELSON, Esq., Lake Success,
New York.
APPEARING FOR APPELLEE: ELIZABETH J. KRAMER (Emily Berger, on the
brief), Assistant United States Attorneys, for
Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn,
New York.
Appeal from the United States District Court for the Eastern District of New York
(Sandra J. Feuerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of conviction entered on November 8, 2007, is AFFIRMED.
Defendant Eddie Wright was convicted, after a guilty plea, of (1) conspiratorial and
substantive counts of possession with intent to distribute at least 50 grams of crack and at
least five kilograms of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846; (2) firearms
possession in furtherance of a drug offense, see 18 U.S.C. § 924(c)(1)(A)-(B); (3) possession
of firearms with obliterated serial numbers, see id. §§ 922(k), 924(a)(1)(B); and (4) being a
felon in possession of a firearm, see id. §§ 922(g)(1), 924(a)(2). He was sentenced to a 480-
month prison term on the drug counts; concurrent prison terms of 120 months and 60 months
on the felon in possession and firearms with obliterated serial numbers counts, respectively;
a consecutive 60-month prison term on the use of a firearm count; ten years’ supervised
release; and a $600 special assessment. On appeal, Wright argues that his conviction was
obtained in violation of due process because he was not present for part of a Curcio
proceeding when the district court heard testimony relevant to the issue of his retained
counsel’s potential conflict of interest. See generally United States v. Curcio, 680 F.2d 881
(2d Cir. 1982). Wright further contends that the district court erred by imposing a 60-month
consecutive prison term on the use of a firearm count, see 18 U.S.C. § 924(c)(1)(A)(i), and
an overall sentence that is procedurally and substantively unreasonable, see United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). We assume the parties’ familiarity with
the facts and record of prior proceedings, which we reference only as necessary to explain
our decision to affirm.
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1. Due Process
Because Wright failed to object to what he and both his retained and conflict counsel
knew was his absence from the initial portion of the Curcio proceeding, we deem his due
process challenge waived. See United States v. Jones, 381 F.3d 114, 122 (2d Cir. 2004)
(“[T]he defendant or his counsel must object at the time of the violation or the defendant’s
right to be present will be deemed waived.”); see also United States v. Peterson, 385 F.3d
127, 139 (2d Cir. 2004) (“A rule allowing the defendants, as well as their trial counsel, to
stay silent at trial and then claim on appeal that their absence constitutes reversible error will
only encourage ‘sandbagging.’”).
Even if we did not find waiver, the alleged error was harmless. See United States v.
Jones, 381 F.3d at 122. Although Wright now asserts that his presence for the testimony of
attorney John Loturco and cooperating witness Lenny Matias “would have had some utility
in his making a knowing and intelligent decision” to waive the potential conflict, Appellant’s
Br. at 40, Wright never actually had to make a waiver decision because his guilty plea
eliminated Loturco’s potential conflict in cross-examining Matias, a potential trial witness
whom Loturco had formerly represented. In his brief to this court, Wright did not contend
that he would not have pleaded guilty had he been present for the full Curcio proceeding.
Nor did he fault counsel’s representation in connection with the plea or sentence. While his
counsel suggested at oral argument that Wright “might” not have pleaded guilty had he been
present for the full Curcio hearing, this is insufficient to establish prejudice. Wright testified
in the district court that he was already fully informed of the facts concerning Loturco’s brief
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prior representation of Matias, and understood why those facts created a potential conflict.
See Tr. at 30-31, Jan. 17, 2006. Thus, Wright’s absence from a hearing where these facts
were presented to the district court was harmless.
The same conclusion obtains with respect to Wright’s absence during attorney Paul
Gianelli’s testimony concerning his joint representation of Wright and Matias in the
Ramnarine murder investigation because the government had already provided Wright with
this information in a January 24, 2006 letter. As for Wright’s absence when the government
characterized him as “the lead suspect” in the Ramnarine murder, see id. at 24, the
government’s January 5, 2006 motion in limine had already indicated that Matias could link
Wright to this murder. Moreover, in subsequent written and oral sentencing submissions,
Wright never objected to being sentenced based upon his responsibility for the Ramnarine
murder and never requested a Fatico hearing. Accordingly, Wright cannot demonstrate that
his absence from part of the Curcio proceeding resulted in any prejudice.
2. Sentence
a. Consecutive 60-month Prison Term for Use of a Firearm
Wright contends that the imposition of a consecutive 60-month prison term on the use
of a firearm count, see 18 U.S.C. § 924(c)(1)(A)(i), runs afoul of our decisions in United
States v. Williams, 558 F.3d 166 (2d Cir. 2009), and United States v. Whitley, 529 F.3d 150
(2d Cir. 2008). This argument fails because our construction of § 924(c)(1)(A) in Williams
and Whitley was abrogated by the Supreme Court’s decision in Abbott v. United States, 131
S. Ct. 18 (2010), see United States v. Tejada, 631 F.3d 614, 619 (2d Cir. 2011), and,
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therefore, the district court was statutorily obliged to impose the challenged consecutive
sentence.
b. Procedural Reasonableness
Wright submits that his overall sentence was procedurally unreasonable because the
district court miscalculated the Sentencing Guidelines. See United States v. Cavera, 550 F.3d
at 190. He is mistaken.
As Wright concedes, the district court “correctly determined that [his] Base Offense
Level was 42, and that his Criminal History Category was VI.” Insofar as the court
determined that this calculation results in a sentencing range of 420 months to life, rather
than 360 months to life as Wright urges, see Appellant’s Br. at 29, the range obviously
included the mandatory consecutive 60-month prison term under § 924(c)(1)(A). Wright’s
counsel acknowledged as much in his sentencing memorandum, which stated that Wright
“agrees with the advisory Combined Guideline Imprisonment Range . . . of 420 months to
life,” Def.’s Sentencing Mem. at 1, a position that counsel reiterated at sentencing, see
Sentencing Tr. at 14, Oct. 23, 2007 (“Wright agrees that his advisory sentencing range is 420
months to life.”).1 In these circumstances, we identify no procedural error.
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Although the district court at one point described Wright’s sentencing range as “422
months to life,” Sentencing Tr. at 10, Nov. 8, 2007, it is clear from the transcript that the
court was referring to Wright’s own sentencing memorandum, which incorrectly stated that
placing Wright in criminal history category VI “results in an increase in the defendant’s
sentencing range from 384-465 to 422-life incarceration,” Def.’s Sentencing Mem. at 5
(emphasis added).
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c. Substantive Reasonableness
Wright claims that his sentence was substantively unreasonable because the district
court (1) focused on his prior criminal history and uncharged conduct, while ignoring his
willingness to cooperate and his establishment of a family support structure; (2) interrupted
his counsel’s discussion of Wright’s family circumstances, substance abuse, and sexual abuse
as a child; and (3) refused to consider statistical evidence concerning his likelihood of
recidivism. We will set aside a district court’s substantive determination only in
“exceptional” cases where the court’s decision cannot be located within the range of
permissible decisions. United States v. Cavera, 550 F.3d at 189; accord United States v.
Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing that “in the great majority of cases, a
range of sentences – frequently extending well beyond the narrow ranges prescribed by the
Guidelines – must be considered reasonable”). This is not such a case.
Although the court asked Wright’s counsel not to repeat arguments made in his “very
clear, very well-written” sentencing memorandum, Sentencing Tr. at 16, Oct. 23, 2007, it
nevertheless permitted counsel to reiterate and elaborate on his written arguments, including
those concerning Wright’s family circumstances, substance abuse, past sexual abuse, and
likely recidivism given his age, see id. at 22-25, 36-37. To the extent Wright faults the
weight accorded these factors by the district court, we identify no abuse of discretion. See
United States v. Cavera, 550 F.3d at 191; United States v. Fernandez, 443 F.3d 19, 34 (2d
Cir. 2006).
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We further reject Wright’s argument that his sentence is substantively unreasonable
because it is “25 years above the statutory mandatory minimum and 15 years above the low
end of the proper advisory Guideline range.” Appellant’s Br. at 33. Although Wright’s
combined 540-month prison term is ten years above the low-end of his Guidelines range
(with the addition of the consecutive 60-month prison term), it is nevertheless within that
range, which extends to life. See United States v. Fernandez, 443 F.3d at 27 (“[I]n the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad
range of sentences that would be reasonable in the particular circumstances.”). Moreover,
Wright was a career offender. Indeed, as the district court observed, “there [was] no
extensive period in which [he] was not involved in some criminal enterprise.” Sentencing
Tr. at 12, Nov. 8, 2007. Notably, Wright led an “extensive, widespread and . . . very
intelligently operated” narcotics conspiracy, id. at 15, distributing significant quantities of
crack and cocaine, supervising “a lot of other people,” id., and using multiple firearms to
further the scheme. In addition, Wright ordered (1) the successful murder of Ramnarine to
prevent his cooperation with law enforcement, and (2) the unsuccessful murder of another
co-conspirator. Based on these unchallenged factual findings, as well as the perceived need
for both general and specific deterrence articulated by the district court, we conclude that
“the sentence ultimately imposed is reasonable in light of all the circumstances presented.”
United States v. Fernandez, 443 F.3d at 32.
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3. Conclusion
We have considered Wright’s remaining arguments and conclude that they are without
merit. For the foregoing reasons, the judgment of conviction is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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