United States v. Washington

11-2154
United States v. Washington
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29th day of November, two thousand twelve.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 RICHARD C. WESLEY,
8 PETER W. Hall,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 11-2154
18
19 RONNIE WASHINGTON, AKA GOTTI,
20
21
22 Defendant-Appellant,
23
24 Larry Devore, AKA L.D., Joseph Jackson, AKA M.I., AKA
25 Mighty, Jayquis Brock, AKA Pook, AKA Pooka, Mark
26 Baskerville, AKA Munson, Russell Battles, AKA Cuddy Russ,
27 Cuddy, Stephanie D'Agostino, Sherrod Daniels, AKA Hot Sauce,
28 Harry Diaz, AKA Hottie, AKA H., James Dickerson, Steven
29 Dicks, AKA God, Derron Dockery, AKA Day Day, Manokus Fields,
30 AKA Fresh, Devante Fortune, AKA Pooty, AKA Will, AKA Devante
31 Fortuna, Maurice Hill, AKA Mo Digs, Shamaine Hobby, Edmund
32 Jackson, Sr., AKA Eddie, James Jenkins, AKA Black, Torrence
33 Jones, Demetrius Little, AKA Hap, AKA Happy, Kristin
1 Longobardi, Eric Lumpkin, Wendel McDuffie, AKA Win, Ryan
2 Moore, Javon Moorning, AKA Lil Red, Gemini Napoleon, AKA
3 Poe, AKA I.G., AKA Gemi, Charles Nichols, Raymond Rice,
4 Chanel Sinclair, Roger Sullivan, AKA Manny O, Eleazar
5 Thompson, AKA L., Tylan Thompson, AKA Finner, Brandon
6 Tolson, AKA Black, Alvin Townsend, AKA Gurb, Tyrone
7 Williams, Darren Winfrey, AKA D., Milton Johnson, AKA Tilt,
8
9 Defendants.
10
11
12 FOR APPELLEE: Robert M. Spector and Sandra S. Glover,
13 Assistant United States Attorneys, for
14 David B. Fein, United States Attorney for
15 the District of Connecticut, New Haven,
16 CT.
17
18 FOR APPELLANT: Jodi Zils Gagne, Law Offices of Jodi Zils
19 Gagne, LLC, Bristol, CT.
20
21 Appeal from the United States District Court for the
22 District of Connecticut(Burns, J.).
23
24 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
25 AND DECREED that the judgment of the United States District
26 Court for the District of Connecticut is AFFIRMED.
27 Defendant-Appellant Ronnie Washington, a/k/a Gotti
28 (“Washington”) appeals from the May 20, 2011 judgment of the
29 United States District Court for the District of Connecticut
30 (Burns, J.) sentencing him to 240 months of imprisonment and
31 96 months of supervised release for conspiracy to possess
32 with intent to distribute twenty-eight grams or more of
33 cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
34 (b)(1)(B), and 846. Washington had pled guilty to that
2
1 offense pursuant to an agreement under which he expected a
2 sentence half the length of the sentence he would ultimately
3 receive. Because his sentence was double his expectation,
4 Washington challenges the procedural and substantive
5 reasonableness of his sentence. The panel has reviewed the
6 briefs and the record in this appeal and agrees unanimously
7 that oral argument is unnecessary because “the facts and
8 legal arguments [have been] adequately presented in the
9 briefs and record, and the decisional process would not be
10 significantly aided by oral argument.” Fed. R. App. P.
11 34(a)(2)(C). We assume the parties’ familiarity with the
12 facts, the procedural history of the case, and the issues on
13 appeal.
14 A sentencing judge has wide latitude in crafting a
15 sentence for a particular offender for a particular crime.
16 United States v. Cavera, 550 F.3d 180, 188-89 (2d Cir. 2008)
17 (en banc). We review that sentence under a “deferential
18 abuse-of-discretion standard.” Id. at 189 (internal
19 quotation marks omitted). The parties entered into a plea
20 agreement that stipulated that, in exchange for his plea,
21 Washington would receive a recommendation for a three-level
22 reduction in his base-offense level. The parties entered
3
1 into the agreement before a determination of Washington’s
2 career-offender status. The agreement established that
3 “[a]ssuming a Criminal History Category VI, an adjusted
4 offense level of 25 . . . would result in an incarceration
5 range of 120-137 months of imprisonment . . . .” JA 47.
6 The agreement also noted: “[T]he defendant may be a career
7 offender . . . based on his multiple prior felony
8 convictions for sale of narcotics. If he is a career
9 offender, his adjusted offense level will increase to 34.
10 The defendant reserves his rights to challenge any
11 determination that he is a career offender.” Id.12 The PSR originally concluded that the defendant’s base
13 offense level was 28. With the three-level stipulated
14 reduction, the PSR placed the defendant at an adjusted-
15 offense level of 25. After receiving more information about
16 Washington’s prior convictions, a second addendum to the PSR
17 concluded that the defendant was a career offender. That
18 status, as the plea agreement anticipated, moved
19 Washington’s adjusted-offense level up to 34. With an
20 offense level of 34, Washington faced a guidelines range of
21 262-327 months. Prior to and at sentencing, the government
22 pushed for a sentence above the 120-137 month range and
4
1 deferred to the court on whether the 262-327 month range on
2 account of Washington’s career offender status was
3 appropriate. At sentencing, the court adopted the findings
4 set forth in the PSR and specifically found that the
5 defendant was a career offender who faced a guideline range
6 of incarceration of 262-327 months. The court eventually
7 imposed a 240 month sentence.
8 A. Career-Offender Status
9 Washington first contends that the district court erred
10 in treating him as a career offender pursuant to U.S.S.G. §
11 4B1.1(a). Police arrested Washington on September 25, 1998
12 in New Haven for a narcotics related offense. Police then
13 arrested Washington again on October 14, 1998 for another
14 narcotics related offense. On November 16, 1998, when he
15 was 17 years old, Washington pled guilty to these two
16 offenses. Twelve days later, on November 28, 1998,
17 Washington turned 18. Sentencing commenced on January 25,
18 1999, and the court sentenced Washington to six years,
19 suspended after three, with three years probation.
20 Washington argues that those offenses should not count
21 towards his career-offender status because, inter alia, he
22 was a minor when he committed and pled guilty to them. That
5
1 argument is without merit. The comments to the Sentencing
2 Guidelines provide that a “conviction for an offense
3 committed prior to age eighteen is an adult conviction if it
4 is classified as an adult conviction under the laws of the
5 jurisdiction in which the defendant was convicted . . . .”
6 U.S.S.G. § 4B1.2, comt. n.1. Here, it is undisputed that
7 the state proceeded against Washington as an adult in an
8 adult forum. See Appellant’s Br. at 24-25. We cannot say,
9 therefore, that the district court erred in treating these
10 two convictions as adult convictions.
11 Next, Washington asks us to consider these two offenses
12 as only one offense in the event we decide that the
13 convictions are adult convictions. Because he simultaneously
14 pled guilty to both offenses and was simultaneously
15 sentenced for both offenses, Washington suggests that the
16 two crimes were treated as one crime at both the plea and
17 sentencing stages. He argues that we should do the same in
18 deciding his career-offender status. We, however, remain
19 unpersuaded. “Prior sentences always are counted separately
20 if the sentences were imposed for offenses that were
21 separated by an intervening arrest (i.e., the defendant is
22 arrested for the first offense prior to committing the
6
1 second offense).” U.S.S.G. § 4A1.2(a)(2). Here, police
2 arrested Washington for a drug offense and then, while he
3 was on pre-trial release, arrested Washington for another
4 drug offense. The district court, therefore, did not err in
5 counting the offenses separately.
6 We have considered Washington’s remaining arguments
7 regarding his career-offender status and find them to be
8 without merit. The district court did not abuse its
9 discretion in treating Washington as a career offender. See
10 U.S.S.G. § 4B1.1(a).
11 B. Procedural and Substantive Reasonableness
12 Washington’s remaining three arguments are that (1) the
13 court punished him for his failure to cooperate in the
14 prosecution of his co-defendants; (2) the court imposed a
15 sentence above the government’s recommendation; and (3) the
16 court failed to take into account the negotiations behind
17 the plea agreement, such as his information proffer.
18 Washington boils this argument down to not receiving the
19 benefit of his plea bargain. It is unclear whether
20 Washington intends these arguments to cut against the
21 sentence’s procedural reasonableness, substantive
22 unreasonableness, or both. The government contends that
7
1 these arguments are subject to plain error review, because
2 they were raised for the first time on appeal. No matter
3 what standard we use, however, the arguments are without
4 merit because the record simply does not support these
5 assertions.
6 The plea agreement that Washington signed specifically
7 anticipated that his base-offense level might rise depending
8 on his career-offender status. The district court, based on
9 the PSR and after hearing argument, concluded that
10 Washington was a career-offender subject to a 262-327 month
11 sentence. The plea agreement, therefore, contemplated this
12 result. Moreover, Washington never objected to the PSR and
13 averred that he read and understood its contents after a
14 discussion with his lawyer. Though it did not seek a
15 sentence within that range, the government deferred to the
16 court’s judgment on whether to sentence Washington within
17 that range. The government did, however, seek a sentence
18 higher than the 120-137 months that would have been
19 applicable if Washington was not a career offender.
20 Considering that background, we cannot find evidence in
21 the record that the district court punished the defendant
22 for not cooperating, failed to consider the government’s
8
1 position on sentencing, or inappropriately failed to
2 consider the alleged negotiations that led up to the
3 agreement when it imposed a 240 month sentence. By the
4 terms of the agreement, Washington did receive the benefit
5 of his bargain. We “presume, in the absence of record
6 evidence suggesting otherwise, that a sentencing judge has
7 faithfully discharged her duty to consider the statutory
8 factors.” United States v. Fernandez, 443 F.3d 19, 30 (2d
9 Cir. 2006). Here, Washington has failed to provide us with
10 record evidence that the sentencing judge failed to
11 discharge her sentencing duties. The fact that Washington
12 ended up with a below-guidelines sentence reflects the
13 contrary. To the extent that his arguments suggest
14 procedural unreasonableness, we find them to be without
15 merit.
16 Lastly, we “set aside a district court’s substantive
17 determination only in exceptional cases where the trial
18 court’s decision cannot be located within the range of
19 permissible decisions.” Cavera, 550 F.3d at 189 (internal
20 quotation marks omitted). The district court carefully
21 reviewed all the relevant material in imposing its below-
22 guidelines sentence. We will not substitute our judgment
9
1 for the judgment of the district court, and Washington has
2 not persuaded us that this is one of those exceptional
3 cases. We hold, therefore, that the sentence was
4 substantively reasonable.
5 We have considered Appellant’s remaining arguments and,
6 after a thorough review of the record, find them to be
7 without merit.
8 For the foregoing reasons, the judgment of the district
9 court is hereby AFFIRMED.
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
10