United States v. Torrance McCown

09-3812-cr
United States v. Torrance McCown
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. W hen 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, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3 the 6th day of October, two thousand ten.
4
5 PRESENT:
6
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 Circuit Judges,
10 WILLIAM K. SESSIONS III
11 District Judge.*
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13
14
15 UNITED STATES OF AMERICA
16 Appellee,
17
18 -v.- No. 09-3812-cr
19
20 TORRANCE McCOWN,
21 Defendant-Appellant.
22
23
24 RICHARD S. CRAMER, Hartford, Connecticut, for Defendant-
25 Appellant.
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27
28
*
The Honorable William K. Sessions III, Chief Judge of the United States District Court for
the District of Vermont, sitting by designation.
1 H.GORDON HALL, Assistant United States Attorney (Raymond F.
2 Miller, Assistant United States Attorney, on the brief) for David B.
3 Fein, United States Attorney for the District of Connecticut, New
4 Haven, Connecticut, for Appellees.
5
6 Appeal from the United States District Court for the District of Connecticut (Janet C.
7 Hall, Judge.)
8 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED
9 that the judgment of conviction and sentence imposed on September 2, 2009 is AFFIRMED.
10 Defendant Torrance McCown appeals from a judgment of conviction entered on September
11 2, 2009 following a jury trial in the District of Connecticut convicting him of one count of
12 conspiracy to distribute 50 grams or more of cocaine base, see 21 U.S.C. §§ 846, 841(a)(1), and
13 846(b)(1)(A)(iii). The district court imposed the statutory mandatory minimum and sentenced
14 McCown to 120 months. See 21 U.S.C § 841(b). On appeal, McCown challenges the sufficiency
15 of the evidence to support his conviction. Alternatively, he contends that even if the conviction
16 stands, the sentence imposed was “substantively unreasonable” because the district court
17 erroneously believed that it was bound by the statutory mandatory minimum. We presume the
18 parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
19 I. Sufficiency of the Evidence
20 McCown argues that there was insufficient evidence to convict him of conspiring to
21 distribute in excess of 50 grams of cocaine base. The claim was properly preserved below, and,
22 accordingly, we review it de novo. United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997).
23 A defendant challenging the sufficiency of the evidence to support his conviction “bears a heavy
24 burden,” United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2008) (internal quotations omitted),
25 because we affirm where viewed “in the light most favorable to the prosecution, any rational trier
2
1 of fact could have found the essential elements.” United States v. Ionia Mgmt. S.A., 555 F.3d 303,
2 309 (2d Cir. 2009) (per curiam) (internal quotations omitted); see generally Jackson v. Virginia, 443
3 U.S. 307 (1979). In reviewing such a challenge, “we must credit every inference that could have
4 been drawn in the government’s favor” and “defer to the jury’s determination of the weight of the
5 evidence and the credibility of witnesses, and to the jury’s choice of the competing inferences that
6 can be drawn from the evidence.” United States v. Reifler, 446 F.3d 65, 94 (2d Cir. 2006) (internal
7 citation omitted) (internal citation and quotations omitted). “In cases of conspiracy, deference to
8 the jury’s findings is especially important because a conspiracy by its very nature is a secretive
9 operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the
10 precision of a surgeon’s scalpel.” United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006) (internal
11 quotations and citations omitted).
12 To establish the crime of conspiracy, the government needed to prove two elements at trial:
13 (1) that the conspiracy alleged in the indictment existed, and (2) that the defendant knowingly joined
14 or participated in it. Snow, 462 F.3d at 68. In this case, the government also needed to establish that
15 it was reasonably foreseeable to the defendant that the conspiracy involved 50 grams or more of
16 cocaine base, or crack cocaine.
17 The government’s evidence with respect to each element was overwhelming. At trial, the
18 government introduced McCown’s post-arrest statement in which he confessed to obtaining
19 significant quantities of cocaine base from a co-conspirator, Roshaun Hoggard, repackaging the
20 cocaine into “dime bags” for resale, and returning a portion of the proceeds to Hoggard. The
21 government also introduced intercepted cell phone conversations between McCown and Hoggard
22 in which the two discussed, among other things, McCown’s purchase of drugs from Hoggard and
3
1 McCown’s delivery of drugs, at Hoggard’s behest, to other co-conspirators. Finally, the government
2 offered the testimony of several government agents who testified to their surveillance of a man
3 identified through wiretap evidence as McCown delivering drugs and otherwise participating in the
4 conspiracy.
5 McCown contends that his confession was “uncorroborated” by the other evidence at trial
6 and, as such, was insufficient to support his conviction. Cf. United States v. Bryce, 208 F.3d 346,
7 354 (2d Cir. 2000) (“It is a long-settled principle that an accused may not be convicted on his own
8 uncorroborated confession.” (internal quotations omitted)). The argument is without merit. As
9 detailed above, the government’s evidence of McCown’s knowing involvement in the conspiracy
10 was overwhelming, and McCown’s confession was directly supported by both intercepted phone
11 conversations and the testimony of government agents. Indeed even if the confession was entirely
12 disregarded, the government’s other evidence was more than sufficient to permit a reasonable trier
13 of fact to conclude that McCown knowingly joined the conspiracy. To the extent McCown raises
14 other arguments with respect to the sufficiency of the evidence, we have considered them and reject
15 them as meritless.
16 II. Sentencing
17 Alternatively, McCown argues the district court erred in imposing the 120-month statutory
18 mandatory minimum. See 21 U.S.C. § 841(b). Specifically, McCown argues, for the first time on
19 appeal,1 that as a result of United States v. Booker, 543 U.S. 220 (2005), and its elimination of the
1
The government contends that the law of this Circuit does not squarely address the
standard of review to be applied where a challenge to the substantive reasonableness of a
sentence is not preserved below. It urges this Court to adopt the same “plain error” standard
applied to unpreserved procedural reasonableness challenges. See United States v. Villafuerte,
502 F.3d 204, 208-11 (2d Cir. 2007). Because McCown identifies no error, plain or otherwise,
we need not and do not address the issue.
4
1 mandatory guidelines, the mandatory minimum in section 841(b) must give way to the “parsimony
2 clause” in 18 U.S.C. § 3553(a) which directs district courts to “impose a sentence sufficient, but not
3 greater than necessary,” to advance the purposes of that section. In other words, McCown argues
4 that the District Court was free to impose a sentence below 120 months if it found such a sentence
5 “sufficient, but not greater than necessary” to further the goals of section 3553(a) and that it erred
6 in believing itself bound by the mandatory minimum in section 841(b).
7 This Court has previously considered and rejected this very argument in the context of a
8 mandatory minimum sentence imposed pursuant to section 841(b). See United States v. Samas, 561
9 F.3d 108, 110-11 (2d Cir. 2009). As we explained in Samas, the wording of section 3553(a) is not
10 “inconsistent with a [congressionally prescribed] sentencing floor.” Id. at 111; see also Kimbrough
11 v. United States, 552 U.S. 85, 107 (2007) (“[S]entencing courts,” although permitted by § 3553(a),
12 after Booker, to deviate from an advisory-Guidelines-recommended range of imprisonment based
13 on their policy disagreements with the Guidelines, “remain bound by the mandatory minimum
14 sentences prescribed in the [statutes].”). McCown provides no basis for disturbing that conclusion
15 and conceded at oral argument that Samas binds this Court and forecloses his argument. Moreover,
16 because he does not raise any other challenge to his sentence as imposed, we affirm the sentence as
17 reasonable.
18 III. Conclusion
19 For the foregoing reasons, the judgment of the district court is AFFIRMED.
20
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
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