United States v. Marrero (Mitchell)

09-3491-cr(L)
United States v. Marrero (Mitchell)
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 Courthouse, 500 Pearl Street, in the City of New York, on the 5th day
of May, two thousand and eleven.
Present:
JOSEPH M. McLAUGHLIN,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. Nos. 09-3491-cr(L), 09-3872-cr(Con),
09-4807-cr(Con), 09-5197-cr(Con),
09-5083-cr(Con)
JASON MITCHELL, DENNIS LEWIS, SEAN GILKES,
NATHANIEL SLATER, JEFFREY MARTINEZ, ORONDE
FORDE, NELSON MARTINEZ,
Defendants-Appellants.1
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1
We resolve the appeals of Defendants-Appellants Sean Gilkes and Oronde Forde in a
separately issued order filed today.
FOR APPELLEE: JOHN J. O’DONNELL, Assistant United States Attorney (Andrew L.
Fish and Michael D. Lockard, Assistant United States Attorneys,
of counsel), for Preet Bharara, United States Attorney, Southern
District of New York, New York, NY.
FOR APPELLANTS: JESSE M. SIEGEL, New York, NY (for Defendant-Appellant James
Mitchell); IRVING COHEN (Jonathan I. Edelstein, of counsel), New
York, NY (for Defendant-Appellant Dennis Lewis); NATHANIEL
SLATER, pro se, Fairton, NJ; ANTHONY L. RICCO (Steven Z.
Legon, on the brief), New York, NY (for Defendant-Appellant
Jeffrey Martinez); LAWRENCE H. SCHOENBACH, Law Offices of
Lawrence H. Schoenbach, New York, NY (for Defendant-
Appellant Nelson Martinez).
________________________________________________
Appeal from the United States District Court for the Southern District of New York
(Rakoff, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,
and DECREED that the orders and judgments of the District Court be and hereby are
AFFIRMED. However, with respect to Jeffrey Martinez, Nelson Martinez, and Nathaniel
Slater, those defendants’ cases are REMANDED so that the district court may (a) pursuant to its
authority under Fed. R. Crim. P. 36, enter an amended judgment in each defendant’s case that is
consistent with its oral judgment, and (b) as required by 18 U.S.C. § 3553(c)(2), satisfy its
ministerial duty to memorialize its stated reasons for imposing a non-Guidelines sentence as to
each defendant; and, with respect to Dennis Lewis, his appeal is also REMANDED so that the
district court may memorialize its stated reasons for imposing a non-Guidelines sentence, as
required by 18 U.S.C. § 3553(c)(2).
Defendants-Appellants Nathaniel Slater, Jeffrey Martinez, and Nelson Martinez appeal
from orders entered on November 16, 2009, December 7, 2009, and December 8, 2009,
respectively, following remand for resentencing pursuant to Kimbrough v. United States, 552
U.S. 85 (2007); Defendant-Appellant James Mitchell appeals from an order entered on August 7,
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2009, in which the district court denied its sua sponte motion for a sentence reduction under 18
U.S.C. § 3582(c)(2); and Defendant-Appellant Dennis Lewis appeals from a judgment of
conviction entered on August 11, 2009 based on his violation of the conditions of his supervised
release. Nathaniel Slater, Jeffrey Martinez, and Nelson Martinez challenge, inter alia, the
procedural and substantive reasonableness of their sentences following remand; James Mitchell
asserts that the district court erred in determining that he was ineligible for a sentence reduction
under § 3582(c)(2); and Dennis Lewis challenges the procedural and substantive reasonableness
of his sentence based on his violation of supervised release. We assume the parties’ familiarity
with the underlying facts and the procedural history of the case.
I. Jeffrey Martinez, Nelson Martinez, and Nathaniel Slater
“We review sentences for abuse of discretion, a standard that ‘incorporates de novo
review of questions of law (including interpretation of the [Sentencing] Guidelines) and clear-
error review of questions of fact.’” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010)
(quoting United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008)). In applying this standard to
sentencing appeals, we are constrained to review for reasonableness, Gall v. United States, 552
U.S. 38, 46 (2007), which “encompasses two components: procedural review and substantive
review,” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). A district court
“commits procedural error where it fails to calculate the Guidelines range . . . , makes a mistake
in its Guidelines calculation, [] treats the Guidelines as mandatory[,] . . . does not consider the
§ 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact.” Id. at 190 (internal
citations omitted). If we find that there was no procedural error, we then “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.”
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Gall, 552 U.S. at 51. In so doing, we must “take into account the totality of the circumstances,
giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the
institutional advantage of district courts.” Cavera, 550 F.3d at 190.
Jeffrey Martinez, Nelson Martinez, and Nathaniel Slater challenge the procedural
reasonableness of their sentences on grounds that, in calculating their base offense levels under
the Guidelines, the district court overestimated the amount of crack cocaine for which they were
each responsible because it credited them with drugs sold or distributed by their co-conspirators.
The district court determined on remand that under U.S.S.G. § 2D1.1(c)(1), as amended, the
applicable base offense level for each Defendant was 38 because the amount of crack cocaine
involved in the underlying conspiracy was at least 4.5 kilograms. This was not error. See United
States v. Richard, 302 F.3d 58, 70 (2d Cir. 2002) (“[A] district court’s drug quantity finding . . .
will not be disturbed unless it is clearly erroneous.”) (internal quotations omitted). Putting aside
the conduct of any co-conspirators, evidence at trial showed that from 2002 to 2004, Jeffrey and
Nelson Martinez personally distributed crack cocaine every two to five days in amounts ranging
from ten to 300 grams, and purchased bulk quantities of crack cocaine which totaled nearly 1.5
kilograms. In addition, other evidence showed that from 1997 to 2000, Nathaniel Slater sold as
much as 200 grams of crack cocaine per day. We have no difficulty concluding that on this
evidence, each of the three defendants was personally responsible for more than 4.5 kilograms of
crack cocaine.
Additionally, we have consistently held that where a defendant is convicted for a “jointly
undertaken criminal activity,” he “may be held responsible for all reasonably foreseeable acts of
others in furtherance of the conspiracy.” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)
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(internal quotations omitted). Here, there was ample evidence that, as early as 1994, the three
defendants, in combination with other co-conspirators, joined forces to open up crack cocaine
distribution at the Mitchel Houses, and it was not clearly erroneous for the district court—which
had presided over the criminal proceedings for many of the co-conspirators and was intimately
familiar with the workings of the drug distribution organization—to conclude that it was
reasonably foreseeable to the three defendants that the amount of crack cocaine involved in the
conspiracy exceeded 4.5 kilograms. See id. (“The defendant need not have actual knowledge of
the exact quantity of narcotics involved in the entire conspiracy; . . . the question is whether the
conspiracy-wide quantity was within the scope of the criminal activity the defendant agreed to
and whether the activity in question was foreseeable to the defendant.”). Indeed, we agree with
the sentencing court that the evidence was sufficient to find that the conspiracy involved at least
150 kilograms of crack cocaine and that this quantity of crack cocaine was reasonably
foreseeable to Jeffrey Martinez, Nelson Martinez, and Nathaniel Slater. Finally, we reject
Jeffrey Martinez’s argument that the district court failed to account for the fact that he was
imprisoned from 1997 to 2000; much of the evidence the district court relied on in calculating
the drug quantity concerned Jeffrey’s actions from 2002 to 2004—well after he was released
from prison.
The three defendants also challenge the substantive reasonableness of their sentences,
asserting that the district court failed to give adequate consideration to the crack-to-powder
cocaine disparity, and did not account for the differences between their sentences and those of
co-defendants who pled guilty. We reject both of these arguments. First, far from
misunderstanding the scope of its authority to deviate from the crack guidelines based on a
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substantive policy disagreement, the record shows that the district court thoroughly considered
the crack-to-powder cocaine disparity, but concluded that any deviation was unnecessary
because, even if it assessed the quantity of crack cocaine at a one-to-one ratio to powder cocaine,
the Guidelines range would be the same given the amount of drugs involved in the conspiracy.
Second, that the three defendants’ sentences were substantially longer than those of their co-
defendants who pled guilty does not make their sentences unreasonable. Although district courts
must consider at sentencing “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. §
3553(a)(6); see also United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008) (“We have held
that section 3553(a)(6) requires a district court to consider nationwide sentence disparities, but
does not require a district court to consider disparities among co-defendants.”) (emphasis added),
the three defendants were not similarly situated to the co-conspirators they identify, since those
defendants who pled guilty did so pursuant to plea agreements which dramatically reduced their
Guidelines exposure. Finally, we reject as meritless all of Nathaniel Slater’s other arguments,
except that to the extent he advances an ineffective assistance claim, we reject that claim without
prejudice to his raising it in a subsequent 28 U.S.C. § 2255 motion. See United States v. Khedr,
343 F.3d 96, 99 (2d Cir. 2003) (noting our “baseline aversion to resolving ineffectiveness claims
on direct review”).
Although we do not identify any procedural or substantive error with the defendants’
sentences, we identify two ministerial errors which warrant remand. First, although the district
court properly resentenced the defendants in accordance with our Kimbrough remand, in each
defendant’s case the court entered an order granting a 18 U.S.C. § 3582(c)(2) motion, when it
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should have entered an amended judgment.2 Second, in each defendant’s case, the district court
imposed a sentence on remand below the applicable 360-month to life Sentencing Guidelines
range. Consistent with 18 U.S.C. § 3553(c)(2), therefore, the court was required to prepare a
written statement setting forth its reasons for imposing a non-Guidelines sentence. See United
States v. Hall, 499 F.3d 152, 154-55 (2d Cir. 2007). While we find no fault with the court’s
stated rationale at resentencing for varying from the applicable Guidelines range, we have
recognized that “a written statement of reasons is beneficial because the Bureau of Prisons
consults the written judgment of conviction, which may contain information relevant to
defendant’s service of sentence.” Id. Accordingly, we remand Jeffrey Martinez’s, Nelson
Martinez’s, and Nathaniel Slater’s cases for the limited purpose of allowing the district court to
enter an amended judgment in each defendant’s case, pursuant to its authority under Fed. R.
Crim. P. 36, that is consistent with its oral ruling, see United States v. Werber, 51 F.3d 342, 347
(2d Cir. 1995), and to satisfy its ministerial duty to memorialize the stated reasons for the
sentence of each defendant, as required by 18 U.S.C. § 3553(c)(2).
II. James Mitchell
Under 18 U.S.C. § 3582(c)(2), a defendant whose original sentence was “based on a
sentencing range that has subsequently been lowered by the Sentencing Commission” may be
eligible for a reduced sentence. Amendment 706 to the Sentencing Guidelines, which was made
retroactive by Amendment 716, reduced by two levels the offense levels under U.S.S.G. § 2D1.1
2
It appears that Jeffrey Martinez did file a 18 U.S.C. § 3582(c)(2) motion incident with
his resentencing proceedings, but this is beside the point. Because our prior order remanded
Jeffrey Martinez’s, Nelson Martinez’s, and Nathaniel Slater’s cases under Kimbrough, the
district court was required to enter an amended judgment following resentencing.
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applicable to crack cocaine offenses. Here, the district court denied its sua sponte motion for a
sentence reduction under § 3582(c)(2) because Mitchell was sentenced as a career offender
under U.S.S.G. § 4B1.1, not pursuant to the crack cocaine Guidelines under U.S.S.G. § 2D1.1.
We review de novo the district court’s determination as to whether a defendant is statutorily
eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), see United States v. Williams,
551 F.3d 182, 185 (2d Cir. 2009), and conclude that the district court correctly denied Mitchell’s
motion.
Although Mitchell concedes that he was properly designated a career offender, he
suggests that the district court “factored in the crack cocaine issue as part of its analysis” at
sentencing. That the district court made general references to the length of drug offense
sentences during its discussion of the 18 U.S.C. § 3553(a) factors, or that Mitchell was convicted
of a crack cocaine offense, does not alter the fact that the court calculated Mitchell’s sentence
based on U.S.S.G. § 4B1.1, not § 2D1.1 See United States v. Martinez, 572 F.3d 82, 85 (2d Cir.
2009) (“The fact that, but for his career offender designation, Martinez’s sentence would have
been based on the now-amended crack cocaine guideline is of no relevance for purposes of a
sentence reduction.”). Moreover, Mitchell’s attempt to analogize his case to United States v.
McGee, 533 F.3d 225, 227 (2d Cir. 2009), is unavailing. There, the district court calculated the
Guidelines range based on § 4B1.1, but then granted a downward departure and recalculated the
applicable range using § 2D1.1 as the base offense level. See id. at 226-27. Here, by contrast,
the district court relied exclusively on § 4B1.1, and made no mention of § 2D1.1. Accordingly,
Mitchell’s sentence was not “based on” a sentencing range that has been subsequently lowered
by the Sentencing Commission.
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III. Dennis Lewis
We review for reasonableness a sentence imposed for a violation of supervised release.
See United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir. 2008). Chapter Seven of the Sentencing
Guidelines includes policy statements which set forth recommended ranges of imprisonment for
supervised release violations based on the severity of the violation and a defendant’s criminal
history category. See U.S.S.G. § 7B1.4. “Although a district court, in sentencing a defendant for
a violation of supervised release, is directed to consider the[se] non-binding policy statements . .
. , the court ultimately has broad discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum.” United States v. Pelensky, 129 F.3d 63, 69 (2d Cir.
1997) (internal quotations omitted); accord United States v. Hargrove, 497 F.3d 256, 259 (2d
Cir. 2009). Moreover, “[b]ecause Chapter Seven policy statements are merely advisory . . . [,]
the district court need not make the explicit, detailed findings required when it departs upward
from a . . . guideline.” Pelensky, 129 F.3d at 69 (internal quotations and citations omitted).
Indeed, “[i]n imposing a sentence for violation of supervised release, the sentencing judge may
freely impose a term lower or higher than the recommended Guidelines range.” United States v.
McNeil, 415 F.3d 273, 277 (2d Cir. 2005).
Lewis argues that his 42-month sentence—five months above the advisory 30 to 37
month policy statement—is procedurally and substantively unreasonable. We disagree. Based
on our review of the record, we find no error with the district court’s determination that a
sentence above the 30-37 month range was necessary to satisfy the 18 U.S.C. § 3553(a)
factors—in particular, to account for the effect of Lewis’s supervised release violations on his
continuing cooperation agreement with the Government and the Government’s credibility with
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respect to Lewis and other cooperators. Moreover, we reject Lewis’s contention that the
sentencing court gave inadequate consideration to the Chapter Seven policy statements. The
record indicates that the district court calculated the applicable Guidelines range and determined
that a sentence five months above that range was appropriate; this was not error. Nevertheless,
although we do not identify any procedural error with Lewis’s sentence, we remand his case to
the district court so that it may memorialize its reasons for imposing a sentence above the 30 to
37 month policy statement range under U.S.S.G. § 7B1.4, consistent with 18 U.S.C.
§ 3553(c)(2). See United States v. Verkhoglyad, 516 F.3d 122, 133-34 (2d Cir. 2008).
The judgments and orders are AFFIRMED, but Jeffrey Martinez’s, Nelson Martinez’s,
Nathaniel Slater’s, and Dennis Lewis’s cases are REMANDED for the reasons stated above.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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