United States v. Townsend , 371 F. App'x 122 ( 2010 )

09-1283-cr
United States v. Mercado
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMM ARY 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. WH EN CITING A SUMMARY ORDER IN A
DOCUMENT FILED W ITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH 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 Courthouse, 500 Pearl Street, in the City of New York, on the 25th day
of March, two thousand ten.
Present:
RALPH K. WINTER,
ROBERT A. KATZMANN,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 09-1283-cr
DAMION TOWNSEND, also known as Poochie, DARRYL WINFREE, also known as Fatboy,
Defendants,
ISAIAH MERCADO, also known as Spanky,
Defendant-Appellant.
________________________________________________
*
The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
New York, sitting by designation.
For Defendant-Appellant Isaiah GAIL JACOBS , Great Neck, NY
Mercado:
For Appellee: GLEN A. KOPP , Assistant United States Attorney
(Michael D. Maimin, Assistant United States
Attorney, of counsel), for Preet Bharara, United
States Attorney for the Southern District of New
York, New York, NY
Appeal from the United States District Court for the Southern District of New York
(Keenan, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court entered March 24, 2009, is AFFIRMED.
Defendant-Appellant Isaiah Mercado appeals from a judgment of the United States
District Court for the Southern District of New York (Keenan, J.), entered March 24, 2009,
revoking his term of supervised release and sentencing him to 12 months’ imprisonment. We
assume the parties’ familiarity with the facts, procedural history, and specification of issues on
appeal.
Mercado first argues that the district court erred in denying his motion to suppress the
evidence on which the government relied to establish that he had violated the terms of his
supervised release. At a suppression hearing, the government bears the burden of showing, by a
preponderance of the evidence, that the evidence was lawfully obtained. See, e.g., United States
v. Heath, 455 F.3d 52, 69 (2d Cir. 2006). We review the district court’s findings of fact for clear
error and its legal conclusions de novo. See, e.g., United States v. Peterson, 100 F.3d 7, 11 (2d
Cir. 1996).
Mercado’s supervised release was subject to the condition that
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[t]he defendant shall submit his person, residence . . . or any other premises under his
control to a search on the basis that the probation officer has reasonable belief that
contraband or other evidence of a violation of the conditions of the release may be found.
The search must be conducted at a reasonable time and in a reasonable manner.
Supp. App. 95. He argues that the quantum of evidence necessary to ground the “reasonable
belief” required to search his residence is at least equal to the quantum of evidence necessary to
ground a “reasonable suspicion” for the purposes of a stop and frisk under Terry v. Ohio, 392
U.S. 1 (1968). He further asserts that the information provided to his probation officer by the
Bronx District Attorney’s office was not sufficient to establish a “reasonable belief” because it
ultimately came from a confidential informant, and there was insufficient corroborating
information or knowledge of the veracity of the informant to deem it reliable.
We have previously explained that the federal system of supervised release “presents
‘special needs’ beyond normal law enforcement that may justify departures from the usual
warrant and probable-cause requirements.” Unites States v. Reyes, 283 F.3d 446, 461 (2d Cir.
2002) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987)). In Reyes, we held that
because of the strong government interest in ensuring that a releasee complies with the terms of
his supervised release, “the probable cause requirements of the Fourth Amendment, which apply
to a regular law enforcement officer executing a search warrant for an individual’s home, simply
do not apply to visits by probation officers to the homes of convicted persons serving a term of
supervised release.” Id. at 462. We did not address the requirements for conducting a search (as
opposed to a visit) of a releasee’s home pursuant to a condition of his supervised release.
However, the Supreme Court’s holding in Griffin establishes that, where “special needs” such as
those presented by the supervised release system exist, it is “reasonable to permit information
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provided by a police officer, whether or not on the basis of firsthand knowledge, to support a . . .
search.” 483 U.S. at 879-80 (emphasis added and footnote omitted). Indeed, the circumstances
of Griffin are similar to those presented here: there, a probation officer received information
from the police department that “there were or might be guns in [the probationer’s] apartment.”
Id. at 871. A search of the probationer’s home was conducted on the basis of this unadorned
information, and contraband was found. Id.We need not, at this juncture, specify whether the “reasonable belief” standard imposed
by the search condition of Mercado’s supervised release is equivalent to the “reasonable
grounds” condition at issue in Griffin, id., because the information received by Mercado’s parole
officer was more detailed and specific than the information received by the parole officer there.
In this case, both the Bronx District Attorney’s office and the New York Police Department
confirmed that Mercado was a person of interest in an ongoing investigation of an unsolved
robbery and homicide. A Bronx Assistant District Attorney provided Mercado’s parole officer
with details about the crime that she had learned from a confidential witness, including that the
perpetrators “waited in bushes outside the house of [a] drug dealer, and when the drug dealer
came home, the other individual, not Mr. Mercado, shot the victim twice, killing him, and two
duffel bags of marijuana were stolen at that time.” Supp. App. 24. Even assuming, for the sake
of argument, that a “reasonable belief” standard is close to the “reasonable suspicion” standard
that applies in the Terry context, this case is a far cry from the anonymous phone call to the
police that the Supreme Court found inadequate to establish a “reasonable suspicion” in Florida
v. J.L., 529 U.S. 266, 268 (2000). Mercado’s probation officer received specific information
from law enforcement officials working on an ongoing investigation that suggested contraband
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might be found in Mercado’s home. The search did not violate Mercado’s Fourth Amendment
rights, and his suppression motion was properly denied.
Mercado next argues that the evidence did not support the district court’s finding that he
had violated the terms of his supervised release by possessing ammunition because he shared his
bedroom, where the contraband was found, with his brother. “[T]he decision to revoke probation
will only be overturned if the district court abused its discretion.” United States v. Barth, 899
F.2d 199, 202 (2d Cir. 1990). We review the court’s factual findings for clear error. See United
States v. Thomas, 239 F.3d 163, 168 (2d Cir. 2001). At a revocation hearing, the government
must prove the violation or violations by a preponderance of the evidence. 18 U.S.C. 3583(e)(3).
The bag containing the ammunition was found under a bed that Mercado’s mother identified as
his; on a crate next to the bed were pay stubs and rental car receipts bearing his name. In light of
these facts, the district court’s finding that it was more likely than not that the ammunition
belonged to Mercado was not clearly erroneous.
Finally, Mercado argues that the district court erred in imposing sentence because 1) it
failed to articulate its reasons for the sentence imposed, and 2) the sentence was excessive in
length. In general, “[t]he standard of review on the appeal of a sentence for violation of
supervised release is now the same standard as for sentencing generally: whether the sentence
imposed is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005). Because
Mercado raised no objection on the ground of either procedural or substantive unreasonableness
at the time of sentencing, however, we review for plain error. See Fed. R. Crim. P. 52(b); United
States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (per curiam).
Under 18 U.S.C. § 3553(c), a sentencing court “at the time of sentencing, shall state in
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open court the reasons for its imposition of the particular sentence,” and in general, a district
court commits procedural error “if it fails adequately to explain its chosen sentence,” United
States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Here, the district court, in
imposing a one-year term of imprisonment, did not explain its reasons for doing so except to note
that this was the term recommended by the Probation Office. However, as we explained in
Espinoza,
[e]stablishing that a sentencing court failed to fulfil the “open court” requirement is not,
however, tantamount to establishing plain error. . . . [F]ailure to satisfy the open court
requirement of § 3553(c) . . . does not constitute “plain error” if the district court relies on
the PSR, and the factual findings in the PSR are adequate to support the sentence.
514 F.3d at 212 (internal quotation marks omitted). By the same token, in the context of a
sentencing for a violation of supervised release, the district court’s reliance on the
recommendation of the Probation Office amounts to an adequate explanation of the reasons for
the sentence imposed, at least for the purposes of plain error review.
Finally, we are not persuaded by Mercado’s claim that the district court’s sentence was
substantively unreasonable. “We will . . . set aside a district court’s substantive determination
only in exceptional cases where the [district] court’s decision cannot be located within the range
of permissible decisions.” Cavera, 550 F.3d at 189 (emphasis and internal quotation marks
omitted). Here, Mercado possessed ammunition, a small quantity of drugs, and drug
paraphernalia within a year of being released from prison following his conviction on a felon-in-
possession charge. Although Mercado was otherwise compliant with the terms of his supervised
release, under the circumstances, a one-year sentence was not unreasonable. Moreover, the
Guidelines revocation range was 18-24 months. “Although we do not presume that a Guidelines
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sentence is reasonable, we have recognized that ‘in 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.’” United States v. Eberhard, 525 F.3d 175, 179 (2d
Cir. 2008) (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)). The fact that
the term of imprisonment imposed was less than the Guidelines’ suggested sentence reinforces
our conclusion that the district court did not commit plain error.
We have considered Mercado’s other arguments and find them without merit. For the
foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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