United States v. Stubbs ( 2023 )

21-2118-cr
United States v. Stubbs
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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 15th day of June, two thousand twenty-three.
4
5 PRESENT: JOHN M. WALKER, JR.,
6 RAYMOND J. LOHIER, JR.,
7 MYRNA PÉREZ,
8 Circuit Judges.
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10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v. No. 21-2118-cr
15
16 TORREN STUBBS,
17
18 Defendant-Appellant.*
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* The Clerk of Court is directed to amend the caption as set forth above.
1 FOR DEFENDANT-APPELLANT: Larry Sheehan, Law Offices of
2 Lawrence Sheehan, Bronx, NY
3
4 FOR APPELLEE: Samuel L. Raymond, Danielle
5 R. Sassoon, Assistant United
6 States Attorneys, for Damian
7 Williams, United States
8 Attorney for the Southern
9 District of New York, New
10 York, NY
11 Appeal from a judgment of the United States District Court for the
12 Southern District of New York (Nelson S. Román, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the judgment of the District Court is AFFIRMED.
15 Torren Stubbs appeals from an August 30, 2021 judgment of the United
16 States District Court for the Southern District of New York (Román, J.) convicting
17 him of two counts — one count each of Hobbs Act Robbery and Conspiracy to
18 Commit Hobbs Act Robbery in violation of 18 U.S.C. § 1951 — and sentencing
19 him principally to concurrent terms of 80 months’ imprisonment for each count,
20 followed by concurrent terms of 3 years’ supervised release. Stubbs mainly
21 argues that his sentence is procedurally unreasonable because the District Court
22 erred in failing to apply a minor role adjustment under § 3B1.2(b) of the
2
1 Sentencing Guidelines. We assume the parties’ familiarity with the underlying
2 facts and the record of prior proceedings, to which we refer only as necessary to
3 explain our decision to affirm.
4 A defendant is eligible for a two-level decrease in his offense level if he “is
5 less culpable than most other participants in the criminal activity” but played a
6 “role [that] could not be described as minimal.” U.S.S.G. § 3B1.2(b), cmt. n.3(A)
7 & n.5. A defendant’s “culpability [must] be gauged relative to the elements of
8 the offense of conviction, not simply relative to co-perpetrators.” United States
9 v. Ajmal, 67 F.3d 12, 18 (2d Cir. 1995) (quotation marks omitted). Whether a
10 defendant is a minor participant is a “highly fact-intensive” inquiry. United
11 States v. Kerr, 752 F.3d 206, 223 (2d Cir. 2014) (quotation marks omitted).
12 Relevant factors listed in the Sentencing Guidelines commentary include:
13 (i) the degree to which the defendant understood the scope and
14 structure of the criminal activity;
15 (ii) the degree to which the defendant participated in planning or
16 organizing the criminal activity;
17 (iii) the degree to which the defendant exercised decision-making
18 authority or influenced the exercise of decision-making authority;
19 (iv) the nature and extent of the defendant’s participation in the
20 commission of the criminal activity, including the acts the defendant
21 performed and the responsibility and discretion the defendant had in
22 performing those acts;
3
1 (v) the degree to which the defendant stood to benefit from the
2 criminal activity.
3
4 U.S.S.G. § 3B1.2 cmt. n.3(C). A “defendant must prove by a preponderance of
5 the evidence that she is entitled to a minor role adjustment.” United States v.
6 Castaño, 234 F.3d 111, 113 (2d Cir. 2000). We review a district court’s decision
7 to apply or decline to apply a Guidelines adjustment “using a deferential abuse-
8 of-discretion standard.” Kerr, 752 F.3d at 222 (quotation marks omitted).
9 Stubbs argues that he was entitled to a minor role adjustment because he
10 was neither aware that his co-conspirators would use a weapon during the
11 robbery nor “present during the physical act of the robbery and shooting.”
12 Appellant’s Br. 9. We are not persuaded. First, during his plea colloquy
13 Stubbs stated that he knew that the robbery might involve the use of force when
14 he helped plan it. 1 Second, a defendant who plans a crime without directly
15 carrying it out himself is not, without more, entitled to a minor role adjustment.
16 See United States v. Ravelo, 370 F.3d 266, 270 (2d Cir. 2004) (“[T]he district court
1 On appeal, Stubbs again concedes that “[h]e was . . . part of the planning stage,”
Appellant’s Br. 9, which is a relevant factor in determining whether he played a minor
role, U.S.S.G. § 3B1.2 cmt. n.3(C)(ii).
4
1 did not abuse its discretion in declining to characterize [the defendant’s] role in
2 the assault crime as ‘minor’[,] . . . even if he did not commit or intend to commit
3 the assault himself.”). Nor do the factors listed in the Sentencing Guidelines
4 commentary above, four out of five of which do not turn on a defendant’s
5 physical presence at the crime, support Stubbs’s argument. See U.S.S.G. § 3B1.2
6 cmt. n.3(C). Accordingly, the District Court did not err in declining to apply a
7 minor-role reduction.
8 We have considered Stubbs’s remaining arguments, including that his
9 sentence is also substantively unreasonable, and conclude that they are without
10 merit. 2 For the foregoing reasons, the judgment of the District Court is
11 AFFIRMED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk of Court
2 We are troubled by the quality of the brief submitted to this Court by Stubbs’s
attorney. Although the brief was not ineffective, we expect better quality briefing from
counsel who appear before our Court.
5