United States v. Robinson, No. 14-809 (2d Cir. 2015)
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Defendant appealed his conviction and sentence after pleading guilty to aiding and abetting: carjacking, in violation of 18 U.S.C. 2119; and the brandishing of a firearm during a crime of violence, i.e., the carjacking, in violation of 18 U.S.C. 924(c). The court held that defendant's conviction for aiding and abetting a violation of section 924(c) was supported by his admission that he knew that a firearm was being used during the carjacking and thereafter aided and abetted the carjacking. Further, the court held that the district court did not err in failing to depart downwardly from the Sentencing Guidelines because of defendant's confinement in decrepit and unsafe conditions of confinement at the Nassau County Correctional Center. Accordingly, the court affirmed the judgment.
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14-809-cr United States v. Robinson 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2014 4 (Argued: March 25, 2015 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Decided: August 26, 2015) Docket No. 14-809-cr - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee, v. SHARIF ROBINSON, Defendant-Appellant, MARCUS HUTCHINSON, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, LIVINGSTON, and CHIN, Circuit Judges. Appeal from a conviction after a guilty plea, in the United 25 States District Court for the Eastern District of New York 26 (Joanna Seybert, Judge), to aiding and abetting carjacking and 27 the brandishing of a firearm during a crime of violence. 28 appeal, appellant challenges the sufficiency of the evidence 29 underlying his plea in light of Rosemond v. United States, 134 30 S.Ct. 1240 (2014), and the failure of the district court to 31 depart downwardly from the Sentencing Guidelines. 1 On We affirm. 1 2 3 4 5 6 7 8 9 10 11 12 13 MITCHELL A. GOLUB, Golub & Golub, LLP, New York, New York, for Defendant-Appellant. MICHAEL P. CANTY, Assistant United States Attorney, for Kelly T. Currie, Acting United States Attorney, Eastern District of New York, Brooklyn, New York, for Appellee. WINTER, Circuit Judge: Sharif Robinson appeals from his conviction and sentence 14 after pleading guilty before Judge Seybert to aiding and 15 abetting, 18 U.S.C. § 2: 16 U.S.C. § 2119; and (ii) the brandishing of a firearm during a 17 crime of violence, i.e., the carjacking, in violation of 18 18 U.S.C. § 924(c). 19 evidence supporting his plea in light of Rosemond v. United 20 States, 134 S. Ct. 1240 (2014), and asks us to vacate the plea 21 and conviction. (i) carjacking, in violation of 18 Appellant challenges the sufficiency of the 22 We hold that his conviction for aiding and abetting a 23 violation of Section 924(c) was supported by his admission that 24 he knew that a firearm was being used during the carjacking and 25 thereafter aided and abetted the carjacking. 26 appellant attacks the procedural reasonableness of his sentence. 27 We hold that the district court did not err in failing to depart 28 downwardly from the Sentencing Guidelines because of appellant’s 29 confinement in decrepit and unsafe conditions of confinement at 30 the Nassau County Correctional Center. 2 Alternatively, Accordingly, we affirm. 1 BACKGROUND 2 Based on the colloquy accompanying the guilty plea, the 3 4 following facts were the basis for appellant’s conviction. On August 26, 2012, appellant was "hanging out" with Marcus 5 Hutchinson and two other men on Albemarle Avenue in Hempstead, 6 New York, when they observed a Cadillac turning the corner to 7 Nostrand Place. 8 the group, telling the others that he was going to rob the 9 driver. 10 Hutchinson, recognizing the male driver, left No mention was made of the use of a gun. Hutchinson followed the car and disappeared around the 11 corner, but the driver retreated to a nearby house. 12 then decided to steal the Cadillac, in which a female passenger 13 remained. 14 "decided to go around the corner to make sure everything was all 15 right." 16 Hutchinson pointing a gun at the Cadillac's female passenger, who 17 “was getting out of the car.” 18 Hutchinson to "put the gun away." 19 did so; the female passenger fled; and appellant and Hutchinson 20 then drove off in the vehicle. 21 Hutchinson As this confrontation was happening, appellant J. App. at 36. After rounding the corner, appellant saw J. App. at 41. Appellant told J. App. at 41-42. Hutchinson They were soon apprehended. Appellant was indicted for aiding and abetting, under 18 22 U.S.C. § 2: (i) carjacking, in violation of 18 U.S.C. § 2119; 23 and (ii) brandishing a firearm during a crime of violence, i.e., 24 the carjacking, in violation of 18 U.S.C. § 924(c). 3 1 During his plea colloquy, appellant stated that he had been 2 initially unaware that Hutchinson was planning to use a gun 3 during the robbery. 4 times, he knew that a robbery was intended and that the female 5 passenger was involuntarily surrendering the Cadillac. 6 acknowledged that he learned that the gun was being used to take 7 the vehicle, although he did tell Hutchinson to put the gun away 8 when he saw it. 9 Appellant admitted that, at all pertinent He also During the colloquy, the prosecutor noted that appellant did 10 not "turn[] and run[] the other way" after realizing that a gun 11 was being used. 12 as a reinforcement in the stealing of the vehicle. 13 judge asked appellant if he agreed with the version of events as 14 stated by the prosecutor, and appellant replied "yes." 15 appropriate warnings to appellant of the consequences of pleading 16 guilty, the district judge accepted the plea. 17 J. App. at 40. Instead, he continued to join in The district After On February 28, 2014, the district court sentenced appellant 18 to 28 months of imprisonment on the aiding and abetting a 19 carjacking count and 84 months of imprisonment on the aiding and 20 abetting the brandishing of a firearm during a crime of violence 21 count. 22 district court downwardly depart from the applicable Sentencing 23 Guidelines based on the conditions of confinement at Nassau 24 County Correctional Center ("NCCC"). 25 alia, that food preparation takes place under unsanitary At sentencing, appellant's counsel requested that the 4 Counsel alleged, inter 1 conditions; access to the law library is restricted to only 45 2 minutes a day; heating systems are non-existent; inmate housing 3 is substandard with water leaks and roach infestations; and 4 unaffiliated inmates are not segregated from violent gang 5 members. 6 had past experience with cases out of NCCC. 7 suggested that counsel had not provided enough evidence to 8 warrant a downward departure. 9 then imposed. 10 The district court denied the request, noting that it The court also The sentence described above was On March 5, 2014, the Supreme Court decided Rosemond v. 11 United States, 134 S. Ct. 1240 (2014), clarifying the 12 relationship of the aiding and abetting statute, 18 U.S.C. § 2, 13 and 18 U.S.C. § 924(c)'s prohibition against using a firearm 14 during a crime of violence. 15 plea lacked a sufficient factual basis under Rosemond because he 16 was unaware that Hutchinson planned to use a gun in the 17 carjacking until he turned the corner and saw the weapon. 18 Alternatively, appellant attacks the procedural reasonableness of 19 his sentence given the district court’s failure to depart from 20 the Sentencing Guidelines. 21 22 23 On appeal, appellant argues that his DISCUSSION a) Sufficiency of the Evidence in Light of Rosemond Under Fed. R. Crim. P. 11, the district court may accept a 24 guilty plea only if the plea has a "factual basis." 25 Crim. P. 11(b)(3). Fed. R. The court is not required “to weigh evidence 5 1 to assess whether it is even more likely than not that the 2 defendant is guilty." 3 1524 (2d Cir. 1997). 4 satisfy itself that "the conduct to which the defendant admits is 5 in fact an offense under the statutory provision under which he 6 is pleading guilty." 7 United States v. Maher, 108 F.3d 1513, Instead, the district court must simply Id.; see also Fed. R. Crim. P. 11(f). In making this inquiry, the district court can accept a 8 defendant's own admissions as true. Maher, 108 F.3d at 1521. 9 The court can rely on the defendant’s admissions and any other 10 evidence placed on the record at the time of the plea, including 11 evidence obtained by inquiry of either the defendant or the 12 prosecutor. 13 Cir. 1974); see also United States v. Adams, 448 F.3d 492, 499 14 (2d Cir. 2006). 15 simply "a reading of the indictment to the defendant coupled with 16 his admission of the acts described in it." 17 McFadden, 238 F.3d 198, 201 (2d Cir. 2001) (internal quotation 18 marks omitted). 19 Irizarry v. United States, 508 F.2d 960, 967 (2d But, any plea colloquy must involve more than United States v. We review objections to the sufficiency of a guilty plea, 20 where -- as here -- the defendant raised no objection below, for 21 plain error. 22 see also United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 23 2005). United States v. Vonn, 535 U.S. 55, 62-63 (2002); We find no error here, much less plain error.1 1 As noted in United States v. Needham, we have “applied a modified plain error analysis in cases where, as here, the source of plain error is a supervening decision,” whereby “the government, not the defendant, bears the burden to demonstrate 6 1 Under Section 924(c), it is a crime to brandish a firearm 2 "during and in relation to any crime of violence." 3 924(c)(1)(A). 4 statute punishes, as a principal, an individual that "aids, 5 abets, counsels, commands, induces or procures" the commission of 6 an underlying federal offense. 7 Supreme Court explained “what it takes to aid and abet a § 924(c) 8 offense." 9 18 U.S.C. § For its part, the federal aiding and abetting 18 U.S.C. § 2. In Rosemond, the 134 S. Ct. at 1245. The Court noted that the aiding and abetting statute 10 requires both an affirmative act furthering the underlying 11 offense and an intent to facilitate that offense's commission. 12 Id. 13 requirement is met when the defendant facilitates any element of 14 the underlying offense. 15 conduct can satisfy the affirmative act requirement of aiding and 16 abetting the Section 924(c) offense, even if the act did not 17 specifically facilitate the use of the firearm. 18 The Supreme Court emphasized that the affirmative act Id. at 1247. Therefore, a defendant’s Id. at 1248. The intent requirement is stricter than the facilitation 19 requirement in that "the intent must go to the specific and 20 entire crime charged -- so here, to the full scope (predicate 21 crime plus gun use) of § 924(c)." Id. It is true that the that the error . . . was harmless.” 604 F.3d 673, 678 (2d Cir. 2010) (internal quotation marks and citations omitted). This standard may be incorrect in light of Johnson v. United States, where the Supreme Court applied plain error review when the error stemmed from a change in Supreme Court law decided after the defendant’s conviction. See 520 U.S. 461, 466 (1997). We “need not resolve this open question [here] because, whether plain error or some modified approach is applied, our conclusions would be the same.” Needham, 604 F.3d at 678. 7 1 requisite intent to use a gun is shown only when a defendant has 2 prior knowledge that a firearm will be used. 3 requisite prior knowledge "means knowledge at a time the 4 accomplice can do something with it -- most notably, opt to walk 5 away." 6 that greater intent, and incurs the greater liability of 7 § 924(c), when he chooses to participate in a [violent crime] 8 knowing it will involve a firearm; but he makes no such choice 9 when that knowledge comes too late for him to be reasonably able Id. at 1249-50. However, the In other words, "[a] defendant manifests 10 to act upon it." Id. at 1251. And, a defendant can reasonably 11 walk away upon learning of a gun's use or planned use, so long as 12 withdrawing would not "increase the risk of gun violence." 13 id. See 14 At the time of appellant’s plea, there was a sufficient 15 factual basis on the record for the district court to accept 16 appellant's plea. 17 because appellant joined Hutchinson in taking the car. 18 intent requirement is also satisfied because, upon learning that 19 a gun was being brandished, appellant, as he conceded in his plea 20 colloquy, had a chance to "turn[] and run[] the other way" but 21 did not. 22 advance knowledge can be inferred "if a defendant continues to 23 participate in a crime after a gun was displayed or used by a 24 confederate"). 25 and joined the carjacking while Hutchinson was still The affirmative act requirement is easily met J. App. at 40. The See id. at 1250 n.9 (noting that Robinson saw the gun as he rounded the corner, 8 1 “brandishing” the gun within the meaning of § 924(c)(4). 2 of leaving then and there, he continued to participate. 3 there was a sufficient “temporal and relational conjunction,” id. 4 at 1248, between the predicate crime and the use of the firearm 5 to support a § 924(c)(1)(A)(ii) conviction under an aiding and 6 abetting theory of liability. 7 this record to believe that appellant’s withdrawing would 8 increase the risk of gun violence, although Robinson could 9 certainly have argued so had he gone to trial. 10 Instead Thus, Finally, there is no reason on In sum, appellant could have reasonably retreated -- but did 11 not -- and the requirement described in Rosemond was met. 12 accordingly conclude that the district court properly accepted 13 appellant's plea. 14 b) The Sentence’s Procedural Reasonableness 15 We Appellant attacks the procedural reasonableness of his 16 sentence –- arguing that the district court erred by not 17 downwardly departing from the Sentencing Guidelines given the 18 conditions of confinement at NCCC. 19 the court erred by not adequately explaining its reasons for 20 refusing to depart. 21 reasonableness under a deferential abuse-of-discretion standard. 22 United States v. Adams, 768 F.3d 219, 224 (2d Cir. 2014). 23 district court commits procedural error when, inter alia, it 24 "treat[s] the Guidelines as mandatory" or fails "to adequately 25 explain the chosen sentence." Appellant also contends that We review sentences for procedural A Gall v. United States, 552 U.S. 9 1 38, 51 (2007); see also United States v. Preacely, 628 F.3d 72, 2 79 (2d Cir. 2010). 3 errors. 4 The district court committed neither of these While it is true that "pre-sentence confinement conditions 5 may in appropriate cases be a permissible basis for downward 6 departures," United States v. Carty, 264 F.3d 191, 196 (2d Cir. 7 2001), appellant provides insufficient reason to overturn the 8 district court's failure to depart from the Guidelines. 9 First, a district court's decision not to depart from the 10 Guidelines is generally unreviewable, unless it misunderstood its 11 authority to do so. 12 States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005) ("[A] refusal 13 to downwardly depart is generally not appealable" unless "a 14 sentencing court misapprehended the scope of its authority to 15 depart or the sentence was otherwise illegal."). 16 absence of clear evidence of a substantial risk that the judge 17 misapprehended the scope of his departure authority, we presume 18 that a sentenc[ing] judge understood the scope of his authority." 19 United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per 20 curiam) (internal quotation marks omitted). 21 the record suggesting that the district court misunderstood its 22 ability to depart from the Guidelines. 23 departure would be possible, albeit a "special consideration," 24 the court listened to arguments on the merits of a downward 25 departure. Adams, 768 F.3d at 224; see also United 10 And, "[i]n the There is nothing in After implying that a 1 Second, while the court must explain how it arrived at a 2 given sentence, it need not engage in a prolonged discussion of 3 its reasoning, especially if the matter is conceptually simple. 4 See Rita v. United States, 551 U.S. 338, 356-59 (2007). 5 because “we entertain a strong presumption that the sentencing 6 judge has considered all arguments properly presented to her, 7 unless the record clearly suggests otherwise.” 8 Fernandez, 443 F.3d 19, 29 (2d Cir. 2006). 9 This is United States v. In the present case, the district court adequately explained 10 its reasoning, noting its past experience with other NCCC 11 inmates. 12 by appellant’s counsel was insufficient to justify a departure. 13 In any event, a district court is under no obligation to engage 14 in an express discussion of every argument made by a defendant at 15 sentencing. See United States v. Bonilla, 618 F.3d 102, 111 (2d 16 Cir. 2010). Therefore, the district court committed no 17 procedural error in its sentencing. 18 19 The court further suggested that the evidence provided CONCLUSION For the foregoing reasons, we affirm. 20 11
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