USA v. Legros, No. 05-2828 (2d Cir. 2008)

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05-2828-cr USA v. Legros 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Submitted: February 22, 2008 Decided: June 17, 2008) 5 Docket No. 05-2828-cr 6 ------------------------------------- 7 United States of America, 8 Appellee, 9 - v - 10 Herby Legros, 11 Defendant-Appellant. 12 ------------------------------------- 13 Before: JACOBS, Chief Judge, CALABRESI, and SACK, Circuit Judges. 14 Appeal by the defendant from a judgment of conviction 15 of the United States District Court for the Eastern District of 16 New York (Joanna Seybert, Judge) sentencing him principally to a 17 term of imprisonment of 120 months for being a felon in 18 possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 19 The district court's factual findings, as stated on the record, 20 are insufficient to support the sentencing enhancement imposed 21 under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in 22 connection with another felony offense. 23 24 25 Vacated and remanded for resentencing. Vivian Shevitz, South Salem, NY, for Appellant. 1 2 3 4 5 6 Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Peter A. Norling, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY, for Appellee. SACK, Circuit Judge: 7 Defendant Herby Legros appeals from a judgment of 8 conviction of the United States District Court for the Eastern 9 District of New York (Joanna Seybert, Judge) sentencing him 10 principally to a term of imprisonment of 120 months for being a 11 felon in possession of a firearm in violation of 18 U.S.C. 12 § 922(g)(1). 13 it is procedurally "unreasonable" because the district court's 14 findings of fact, as stated on the record, do not support a four- 15 level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a 16 firearm in connection with another felony offense.1 17 vacate the judgment and remand for resentencing. 18 resentencing, the district court may either recalculate the 19 applicable Guidelines range without the enhancement or make 20 additional factual findings that sufficiently support the 21 enhancement. 22 affirmed. Legros appeals his sentence only. We conclude that We therefore At The judgment below is in all other respects 1 Although the relevant enhancement was U.S.S.G. § 2K2.1(b)(5) at the time Legros was sentenced, subsection (b)(5) was subsequently renumbered (b)(6) without substantive change. See U.S.S.G. Supp. to App. C, amend. 691 (eff. Nov. 1, 2006). Throughout this opinion we cite to the enhancement as U.S.S.G. § 2K2.1(b)(6). 2 BACKGROUND 1 2 On November 1, 2003, police responded to a series of 3 "911" calls reporting multiple shots fired in the street of a 4 residential area of West Babylon, Suffolk County, New York. 5 police officers arrived on the scene almost immediately, spotted 6 three men in the vicinity, and approached them. 7 (later identified as Legros) ran. 8 him. 9 He was arrested by the officer. Two One of them One of the officers pursued During the chase, Legros tossed a handgun to the ground. The gun he discarded was later 10 matched to spent shell casings and one expended bullet recovered 11 from the scene of the reported gunshots. 12 Legros was indicted on one count of being a felon in 13 possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 14 Following a jury trial, he was convicted of the offense. 15 Prior to sentencing the United States Probation Office 16 prepared a presentence investigation report ("PSR") calculating a 17 sentencing range under the United States Sentencing Guidelines of 18 110 to 137 months. 19 arrived at that range by assessing a base offense level of 20, 20 U.S.S.G. § 2K2.1(a)(4)(A); a two-level enhancement because the 21 firearm was stolen, id. § 2K2.1(b)(4)(A); a four-level 22 enhancement because the firearm was possessed in connection with 23 another felony offense, id. § 2K2.1(b)(6); and a criminal history 24 category of V. 25 however, was 120 months, ten months above the bottom of the 26 applicable Guidelines range. According to the PSR, the Probation Office The maximum sentence permitted by statute, See 18 U.S.C. § 924(a)(2). 3 1 The four-level enhancement under U.S.S.G. § 2K2.1(b)(6) 2 is central to this appeal. 3 applicable Guidelines range would have been 77 to 96 months. 4 Without the enhancement, the According to the PSR, the enhancement was based on the 5 assertion that Legros had committed "aggravated assault" by 6 shooting at one Christopher Passius in retaliation for Passius's 7 testimony against two fellow gang members who had been convicted 8 in state court of manslaughter for beating to death a member of a 9 rival gang. The government argued that the enhancement was 10 proper because Legros had "discharged the charged firearm at 11 Christopher Passius in retaliation for what [Legros] believed was 12 Passius's betrayal of fellow 'Bloods' members through Passius's 13 cooperation with Suffolk County law enforcement at trial." 14 Letter from Special Assistant U.S. Attorney Sondra M. Mendelson 15 to the district court dated Mar. 31, 2005, at 4. 16 Legros challenged the enhancement. He argued that 17 there was no evidence that he was in a gang or that he had shot 18 at Passius or anyone else. 19 At the sentencing hearing, the government introduced 20 evidence intended to support the enhancement. The police had 21 taken a statement of one Jermaine Bullock, who said he had seen 22 Legros fire a weapon. 23 Detective Christopher Loeffler, who had taken Bullock's Although Bullock himself did not testify,2 2 Another police detective testified that after a diligent search, he was unable to locate Bullock to subpoena him for the sentencing hearing. 4 1 statement, read Bullock's statement to the court. 2 court found Bullock's hearsay statement reliable and admitted it. 3 In relevant part, Loeffler said that Bullock told him: 4 5 6 7 8 The district When I was looking up the street, I saw a guy with a hood and I heard a few shots. At first I took cover, but then I tried to mediate the crisis between Chris and Herb. Herb was firing in the air. 9 10 11 12 13 Sentencing Transcript, May 20, 2005 ("Sentencing Tr."), at 38 14 (emphasis added). 15 Police told me they found a bullet hole in Chris's car. I don't know how that got there. At the conclusion of the hearing, the court imposed a 16 term of imprisonment of 120 months, which was the maximum 17 permitted by statute and within the range of 110 to 137 months 18 recommended in the PSR based in part on the four-level 19 enhancement. 20 th[e] hearing that the defendant was the individual who fired the 21 gun in the air." 22 occurred in a residential neighborhood, the court found that such 23 conduct "amounts to reckless endangerment." 24 the court found that the enhancement was applicable on the basis 25 relied upon in the PSR: that Legros had possessed the gun in the 26 course of committing an aggravated assault. 27 The court said that "there is proof adduced at Id. at 73. Noting also that the shooting Legros appeals. 5 Id. Alternatively, DISCUSSION 1 2 I. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Standard of Review [T]he appellate court . . . must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed . . . . 19 Gall v. United States, 128 S. Ct. 586, 597 (2007). We review 20 sentences for reasonableness under an abuse-of-discretion 21 standard. 22 2008). 23 review of questions of law (including interpretation of the 24 Guidelines) and clear-error review of questions of fact. 25 520 F.3d at 157; see also United States v. Richardson, 521 F.3d 26 149, 156 (2d Cir. 2008). 27 II. 28 Legros argues that there is insufficient evidence to United States v. Cutler, 520 F.3d 136, 156 (2d Cir. The abuse-of-discretion standard incorporates de novo Cutler, Enhancement Under U.S.S.G. § 2K2.1(b)(6) 29 support a four-level enhancement on the ground that he "used or 30 possessed any firearm . . . in connection with another felony 31 offense." 32 Guidelines' commentary, this enhancement applies "if the 33 firearm . . . facilitated, or had the potential of facilitating, U.S.S.G. § 2K2.1(b)(6). 6 According to the applicable 1 another felony offense." U.S.S.G. § 2K2.1 application note 2 14(A). 3 [f]ederal, state, or local offense," other than the offense of 4 conviction, "punishable by imprisonment for a term exceeding one 5 year, regardless of whether the criminal charge was brought, or a 6 conviction obtained." 7 The commentary defines "another felony offense" as "any Id., application note 14(C). The government bears the burden of proving by a 8 preponderance of the evidence that the defendant committed 9 another felony offense. United States v. Spurgeon, 117 F.3d 641, 10 643 (2d Cir. 1997) (per curiam). Each element of the underlying 11 felony offense must be established. 12 509 F.3d 441, 445 (8th Cir. 2007). 13 that the district court state each element on the record and 14 declare it proved by a preponderance of the evidence, like other 15 "facts disputed in connection with sentencing, the [district] 16 court is required to make findings sufficient to permit appellate 17 review." 18 1996). 19 A. See United States v. Betts, Although we do not require United States v. Thompson, 76 F.3d 442, 456 (2d Cir. Reckless Endangerment 20 We begin with the district court's finding that 21 Legros's possession of the gun was in connection with his 22 commission of the crime of reckless endangerment. 23 there are two degrees of reckless endangerment. 24 guilty of reckless endangerment in the second degree," a 25 misdemeanor, "when he recklessly engages in conduct which creates 26 a substantial risk of serious physical injury to another person." 7 In New York, "A person is 1 N.Y. Penal Law § 120.20. 2 endangerment in the first degree," a felony, "when, under 3 circumstances evincing a depraved indifference to human life, he 4 recklessly engages in conduct which creates a grave risk of death 5 to another person." 6 indifference to human life is a "culpable mental state." 7 v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 695, 852 N.E.2d 8 1163, 1167 (2006). 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "A person is guilty of reckless Id. § 120.25. Under New York law, depraved People Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill. Quintessential examples are firing into a crowd; driving an automobile along a crowded sidewalk at high speed; opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway. 26 People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 276, 844 27 N.E.2d 721, 730 (2005) (per curiam) (internal quotation marks, 28 citations, and footnote omitted). 29 For a defendant to be subject to the four-level 30 enhancement under U.S.S.G. § 2K2.1(b)(6), he must have possessed 31 a firearm in connection with another felony offense. 32 case, then, it would have been insufficient support for the 33 enhancement for the district court to find that Legros recklessly 34 engaged in conduct creating a substantial risk of serious 8 In this 1 physical injury to another person, because that would support 2 only second-degree reckless endangerment, a misdemeanor. 3 enhancement for reckless endangerment could be imposed only if 4 the district court properly found that his conduct created a 5 "grave risk of death" and that he acted with a mens rea of 6 "depraved indifference to human life." 7 § 120.25. 8 9 10 11 12 13 14 15 16 17 18 An See N.Y. Penal Law In explaining its decision to impose the four-level enhancement, the district court made no mention of a "grave risk" or "depraved indifference." The court said: [T]here is proof adduced at th[e] hearing that the defendant was the individual who fired the gun in the air. That amounts to reckless endangerment. The court heard testimony with respect to the fact that it was a neighborhood. And the statement is confirmed by the admission of Germaine [sic] Bullock's statement into evidence. 19 Sentencing Tr. at 73. There was sufficient evidence to support 20 the district court's finding that, in the course of the incident 21 in question, Legros fired the gun in the air, as described by 22 Bullock, and that he did so in a residential area. 23 facts, standing alone, are not sufficient to support a finding of 24 felony reckless endangerment. 25 36-37, 530 N.Y.S.2d 529, 531, 526 N.E.2d 20, 22 (1988) (shooting 26 pistol into the air does not constitute reckless endangerment in 27 the first degree) (citing People v. Richardson, 97 A.D.2d 693, 28 694, 468 N.Y.S.2d 114, 115 (1st Dep't 1983)). 29 into the air in a residential area is of course risky. But these See People v. Davis, 72 N.Y.2d 32, 9 Shooting a gun But 1 nothing in the record indicates that the district court found 2 such conduct created a "grave risk of death" and that Legros 3 acted with a mens rea of "depraved indifference to human life." 4 See N.Y. Penal Law § 120.25. 5 We need not decide whether there is evidence in the 6 record to support such findings. Without a further explanation 7 from the district court, we cannot affirm its judgment in this 8 respect on this ground. 9 81, 88 (2d Cir. 2007); United States v. Dupre, 462 F.3d 131, 146 See United States v. Sindima, 488 F.3d 10 (2d Cir. 2006), cert. denied, 127 S. Ct. 1026 (2007).3 11 B. Aggravated Assault 12 The district court's decision as to the propriety of 13 the enhancement was also based on the alternative theory that the 14 "[]other felony" in connection with which Legros possessed the 15 gun was an aggravated assault. 16 "aggravated assault" in New York, Legros would be guilty of 17 attempted assault in the first degree, a felony, if, as alleged 18 by the government and in the PSR, Legros fired one or more shots 19 at Passius.4 Although there is no crime of "A person is guilty of assault in the first degree 3 The government argues that the plain-error standard of review applies because Legros did not object to the district court's reckless endangerment finding. See Fed. R. Crim. P. 52(b). While Legros did not use the terms "grave risk" and "depraved indifference," we think that his argument to the district court challenging the propriety of imposing the enhancement based on the theory that the other felony was the crime of reckless endangerment was sufficient to raise the issue. 4 According to the PSR, no one was injured as a result of Legros's conduct. 10 1 when . . . [w]ith intent to cause serious physical injury to 2 another person, he causes such injury to such person or to a 3 third person by means of a deadly weapon or a dangerous 4 instrument." 5 an attempt to commit a crime when, with intent to commit a crime, 6 he engages in conduct which tends to effect the commission of 7 such crime." 8 9 N.Y. Penal Law § 120.10(1). "A person is guilty of Id. § 110.00. As was the case with respect to the court's treatment of reckless endangerment, the court did not mention the essential 10 elements of the offense or identify facts in the record that 11 satisfied them. 12 13 14 15 16 17 18 19 20 21 22 23 24 The court said: The last basis that the court finds the enhancement is applicable is with respect to the aggravated assault. The temporal connection is strong in terms of the defendant's apprehension and the events preceding his arrest. There is sufficient circumstantial evidence that the defendant was wearing a black-hooded sweatshirt, and that also is confirmed as the defendant being the shooter when we have the statement of Mr. Bullock which has been admitted and thoroughly corroborates the circumstances involved in this case. 25 Sentencing Tr. at 73. Indeed, as was the case with the reckless 26 endangerment theory, the evidence was sufficient to support a 27 finding that Legros was "the shooter." 28 identified no facts to support a finding that Legros intended to 29 cause serious injury or engaged in conduct which tends to effect 30 such injury. 31 was described by the only eyewitness statement introduced at 32 sentencing, is insufficient to support a finding of attempted But the district court Shooting a gun "in the air," as Legros's conduct 11 1 first-degree assault. 2 215-16, 455 N.Y.S.2d 434, 435-36 (4th Dep't 1982) (finding 3 evidence insufficient to support intent to cause serious physical 4 injury where defendant aims gun at tree), aff'd, 60 N.Y.2d 683, 5 455 N.E.2d 1261, 468 N.Y.S.2d 466 (1983); see also United States 6 v. Pimentel, 346 F.3d 285, 298 (2d Cir. 2003) (stating that under 7 New York law of attempts, defendant must engage in conduct that 8 comes "dangerously near" commission of the completed crime, and 9 that "[i]n the context of attempted murder prosecutions . . . the 10 Government must establish that the defendant pointed a weapon at 11 a victim and was about to kill him with it" (emphasis added)), 12 cert. denied, 543 U.S. 955 (2004). 13 sentence on the basis of aggravated assault, the district court 14 did not explain what evidence it relied upon in finding, if it 15 did so find, that Legros aimed and shot at Passius.5 16 See People v. Leonardo, 89 A.D.2d 214, In enhancing Legros's We cannot say that there is insufficient evidence to 17 support the enhancement on this basis. 18 not include a full transcript of Legros's trial, and the district 19 court is, of course, more familiar with the facts of and 20 proceedings in this case than are we. 21 endangerment theory, we are unable to affirm a finding of felony 22 assault without a more detailed explanation by the district court 5 The record on appeal does But, as with the reckless Although a police officer testified that an expended bullet matched to Legros's gun was found within a vehicle parked in the vicinity of the shooting, and Bullock said that the police told him they found a bullet hole in Passius's car, the record on appeal does not indicate whether Passius was in or near the car when the gun was discharged. 12 1 identifying the facts in the record that would support such a 2 finding. 3 2007), cert. denied, 128 S. Ct. 1066 (2008). 4 the judgment and remand for resentencing.6 See United States v. Carter, 489 F.3d 528, 540 (2d Cir. We therefore vacate 5 III. 6 Legros makes several other arguments challenging his 7 sentence. 8 Remaining Arguments We find them to be without merit. First, Legros argues that under the Fifth and Sixth 9 Amendments his sentence cannot be enhanced under U.S.S.G. 10 § 2K2.1(b)(6) based on his commission of a separate felony 11 offense unless the elements of that offense are proved to a jury 12 beyond a reasonable doubt. 13 In United States v. Martinez, 525 F.3d 211, 214-15 (2d Cir. 2008) 14 (per curiam), we adopted the Third Circuit's holding in United We recently rejected that argument. 6 Upon review of the record, we find a possible third basis that the district court may have relied on for the section 2K2.1(b)(6) enhancement: criminal possession of stolen property. See N.Y. Penal Law § 165.45(4). Neither the defendant nor the government raised an argument to challenge or defend the enhancement on that basis. The district court, however, made no finding that Legros knew the firearm was stolen, an essential element of felony possession of stolen property under New York law. See Krause v. Bennett, 887 F.2d 362, 370 (2d Cir. 1989). Because the PSR states that the weapon had been stolen nearly a decade before the offense of conviction, the district court could not, without more, infer Legros's knowledge from the fact of his unlawful possession. See People v. Davis, 163 A.D.2d 826, 827, 558 N.Y.S.2d 358, 360 (4th Dep't) (mem.), appeal denied, 76 N.Y.2d 939, 564 N.E.2d 678, 563 N.Y.S.2d 68 (1990); People v. Sturgis, 122 A.D.2d 535, 535, 504 N.Y.S.2d 899, 899 (4th Dep't 1986) (mem.), aff'd, 69 N.Y.2d 816, 506 N.E.2d 532, 513 N.Y.S.2d 961 (1987). As was the case with the other two possible grounds for a felony offense enhancement, we are unable to affirm a finding of felony possession of stolen property without a fuller explanation from the district court identifying the record evidence to support such a finding. 13 1 States v. Grier, 475 F.3d 556 (3d Cir.) (en banc), cert. denied, 2 128 S. Ct. 106 (2007): 3 Guidelines -- whether or not they constitute a 'separate offense' 4 -- do not . . . constitute 'elements' of a 'crime' under the 5 rationale of [Apprendi v. New Jersey, 530 U.S. 466 (2000),] and 6 do not implicate the rights to a jury trial and proof beyond a 7 reasonable doubt." 8 9 "Facts relevant to application of the Id. at 567-68. Second, Legros argues that the district court was "swayed" in its sentencing decision by evidence that he says was 10 improperly admitted: that he was a member of a gang. 11 Br. at 23. 12 improperly admitted because the district judge explicitly stated 13 in the course of the sentencing that she made no finding as to 14 whether Legros's conduct was gang-related. 15 Appellant's We need not decide whether any such evidence was Legros also argues that Bullock's statement, read into 16 the record by Detective Loeffler, is unreliable. 17 Bullock did not personally testify, hearsay testimony is 18 permitted in sentencing hearings and the district court did not 19 abuse its discretion in finding the hearsay reliable. 20 States v. Martinez, 413 F.3d 239, 242-44 (2d Cir. 2005), cert. 21 denied, 126 S. Ct. 1086 (2006). 22 Although See United Finally, Legros argues that the district court failed 23 to consider the sentencing factors enumerated in 18 U.S.C. 24 § 3553(a) and failed to treat the Guidelines as advisory. 25 Although the district judge asked for argument on where within 26 the Guidelines range she should sentence Legros, she also invited 14 1 counsel to make any argument she should consider after reviewing 2 the Guidelines range. 3 discussed the section 3553(a) factors, stated that she had 4 considered them all, and stated that the sentence was not imposed 5 "as a result simply of the guidelines." 6 "[W]e presume, in the absence of record evidence suggesting 7 otherwise, that a sentencing judge has faithfully discharged her 8 duty to consider the statutory factors." 9 Fernandez, 443 F.3d 19, 30 (2d Cir.), cert. denied, 127 S. Ct. In fact, the district judge specifically Sentencing Tr. at 80. United States v. 10 192 (2006). Overall, the record in this case reflects that the 11 district court considered the section 3553(a) factors and did not 12 consider itself bound by the Guidelines range. 13 v. Brown, 514 F.3d 256, 270 (2d Cir. 2008). CONCLUSION 14 15 See United States For the foregoing reasons, the judgment of the district 16 court is vacated and the case remanded to the district court for 17 further proceedings. 15

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