08-3386-cr (L)
United States v. Robinson; United States v. Fleming


                                   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 United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5th day of July, two thousand eleven.

PRESENT: ROGER J. MINER,
                 REENA RAGGI,
                 GERARD E. LYNCH,
                         Circuit Judges.
------------------------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                                 v.                                        Nos. 08-3386-cr (L)
                                                                                08-3545-cr (Con)
TARON ROBINSON, a.k.a. TURTLE, AHMAD FLEMING,
a.k.a. SILKY,
                     Defendants-Appellants,

ERNEST CONLEY, a.k.a. LOC, a.k.a. E-LOC, a.k.a. EZ-LOC,
HECTOR DEJESUS, a.k.a. HEC, MARK LEWIS, SHATIA
WRIGHT, TRACY BATTLE, a.k.a. GRADY, KEYMON
DOBBS, ALAN SKORUPSKI, KAMAR HARRISON,
a.k.a. DOLO, JOHN WELCOME, a.k.a. DUBBS, LAVAR
HOUTMAN, a.k.a. GOD OF ALL GODS, a.k.a. VILLAIN,
a.k.a. GOD, KHALIL BARNES, a.k.a. CRAZY K, RAHMEL
CARTER, a.k.a. DOODER, AMIN COWAN, a.k.a. AH,
ANTHONY FENNER, a.k.a. ANT, RAYQUINSHAWN
HARRISON, a.k.a. PILLA, TAKEEM HEATH, a.k.a. TY-NASTY,
LAMEL INMAN, a.k.a. GHOST, a.k.a. MEL, KALI JOHNSON,
a.k.a. HERSH, DEAUNTTA MALLOY, a.k.a. CHEF D,
SANTONIEO MILLER, JR., a.k.a. KUSHAWN, a.k.a. DADDY,
RAMAAR MILNER, a.k.a. BIZZA, LAJUAN MORALES, a.k.a.
LAY HOODY, a.k.a. COOL, KEMIEK PAYNE, a.k.a. KP, SHABAR
PERKINS, a.k.a. BARSKY, ELQUAN STURDIVANT, a.k.a.
L EASY, SHAMEEK K. THOMAS, a.k.a. TARZAN, a.k.a. SHA,
JOSHUA VANHOESEN, a.k.a. SCARLO, SHAHEEM WHITE,
a.k.a. DOUBLE S, JOHN VANHOUSEN, a.k.a. JOHNNY CAT,
                                 Defendants.*
------------------------------------------------------------------------------------
FOR APPELLANTS:                  Lee Greenstein, Law Office of Lee Greenstein, Albany, New
                                 York, for Defendant-Appellant Taron Robinson.

                              Randolph Z. Volkell, Esq., Merrick, New York, for Defendant-
                              Appellant Ahmad Fleming.

FOR APPELLEE:                 Paul D. Silver, Carlos A. Moreno, Daniel Hanlon, Assistant
                              United States Attorneys, for Richard S. Hartunian, United States
                              Attorney for the Northern District of New York, Albany,
                              New York.

       Appeals from the United States District Court for the Northern District of New York

(Gary L. Sharpe, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the amended judgment of conviction entered as to defendant Taron Robinson

on August 5, 2008, is AFFIRMED; and that the amended judgment entered as to defendant

Ahmad Fleming on August 3, 2010, is VACATED IN PART and REMANDED for further

proceedings consistent with this order.

       Defendants Robinson and Fleming stand convicted on pleas of guilty to a common

count of conspiring to participate in a Racketeering Influenced and Corrupt Organization


       *
           The Clerk of the Court is directed to amend the caption to read as shown above.

                                               2
(“RICO”) enterprise. See 18 U.S.C. § 1962(d). On appeal, Robinson challenges the

procedural and substantive reasonableness of his 137-month prison sentence. Fleming,

sentenced principally to 113 months’ incarceration, challenges a special condition of

supervised release prohibiting him from displaying any gang’s colors or insignia as

unconstitutional. In reviewing these consolidated appeals, we assume familiarity with the

facts and record of prior proceedings, which we reference only as necessary to explain our

decision.

1.     Robinson

       Reasonableness review is akin to that for abuse of discretion. See United States v.

Cavera, 

, 187 (2d Cir. 2008) (en banc); United States v. Canova, 

,

679 (2d Cir. 2007) (considering “the length of the sentence (substantive reasonableness) and

the procedures used to arrive at the sentence (procedural reasonableness)”). In the procedural

context, we review a district court’s Guideline application de novo and its factual

determinations for clear error. See United States v. Conca, 

, 62 (2d Cir. 2011).

       a.     Criminal History Calculation

       Robinson asserts procedural error in his criminal history calculation based on

inclusion of a 2001 juvenile sentence for grand larceny in the fourth degree. See United

States v. 

(stating that miscalculation of Guidelines range may

constitute procedural error rendering sentence unreasonable). He is mistaken. The district

court correctly added one point for Robinson’s “juvenile sentence” of one-year’s probation

because that sentence was “imposed within five years” of the instant offense. U.S.S.G.

                                              3
§ 4A1.2(d)(2)(B). New York’s civil classification of Robinson as a juvenile delinquent not

“criminally responsible for” his conduct does not alter the result. See N.Y. Penal Law

§ 30.00(1)-(2); United States v. 

. By its terms, § 4A1.2(d)(2)(B)

applies “to all offenses committed prior to age eighteen” to avoid jurisdictional sentencing

disparities. U.S.S.G. § 4A1.2(d)(2)(B) cmt. n.7 (emphasis added); see also United States v.

Driskell, 

, 154 (2d Cir. 2002) (stating that criminal history depends on

“substance” of past conviction not “statutory term affixed to it by a state court”). Robinson’s

ability to seek sealing of his juvenile records is similarly immaterial, see N.Y. Fam. Ct. Act

§ 375.2, because only “expunged convictions” are excluded from criminal history, see

U.S.S.G. § 4A1.2(j), and Robinson never sought sealing or expungement.1

       Nor can Robinson bolster his challenge by arguing that the underlying conduct was

likely part of the charged RICO conspiracy. Because Robinson failed to raise this issue

below, we review only for plain error, see United States v. Dorvee, 

, 179 (2d

Cir. 2010); United States v. Irving, 

, 78 (2d Cir. 2009), and identify none here.

Robinson’s speculative assertion is belied by the indictment, which does not discuss the

grand larceny conduct. In any event, we identify no plain error because the RICO Guideline

provides that Robinson’s 2001 juvenile sentence “result[ing] from a conviction prior to the

last over act” of the charged conspiracy is treated as a “prior sentence under § 4A1.2(a)(1)



       1
         Robinson’s suggestion that his grand larceny offense might constitute a “juvenile
status” offense is without merit. See U.S.S.G. § 4A1.2(c)(2). This term refers to acts that
are criminal only because of the defendant’s juvenile status, such as purchasing alcohol.

                                              4
and not as part of the instant offense.” U.S.S.G. § 2E1.1 cmt. n.4 (noting “distinction

between” RICO offense and “criminal history”).

       Robinson further submits, for the first time on appeal, that the seriousness of his

criminal history was substantially over-represented so as to warrant a horizontal downward

departure. See 

To the extent the district court did not sua sponte grant a

departure on this ground, we will not identify error where, as here, nothing in the record

indicates that the district court misunderstood the law or its departure authority. See United

States v. Belk, 

, 314-15 (2d Cir. 2003); United States v. Aponte, 

,

803 (2d Cir. 2000). Accordingly, we reject Robinson’s challenges to his criminal history

calculation as without merit.

       b.     5K2.0 Upward Departure

       Robinson submits that the district court procedurally erred in departing upward one

level for his post-plea assault and intimidation of a fellow inmate by analogy to § 3C1.3. See

U.S.S.G. § 5K2.0(a) & cmt. n.2 (providing departure authority for circumstances “of a kind,

or to a degree not adequately taken into consideration by” Guidelines); 

& cmt.

n.1 (increasing offense level if defendant convicted of offense committed while released

pending federal proceedings). We are not persuaded. In discussing Robinson’s pre-

sentencing misconduct, the district court referenced § 3C1.3 merely as an example of a

similar factor warranting enhancement under the Guidelines. This analogy did not require

the district court to find that Robinson met § 3C1.3’s elements. Cf. United States v. Puello,

, 10 (2d Cir. 1994) (stating that district court need not find that defendant’s conduct

                                               5
“ran afoul” of Guideline’s “elements” before analogizing to it in determining extent of

upward departure).

       Robinson’s assertion that he may not have been “the aggressor” in the incident at issue

merits little discussion. The district judge viewed a videotape of the incident and explained

in open court that Robinson initiated the altercation and that, based on the tape there was “no

question” that Robinson had “engaged in felonious criminal conduct” that was “assaultive

and violent in nature.” Sentencing Tr. at 21-22. See United States v. Vaughn, 

,

527 (2d Cir. 2005) (“[D]istrict courts may find facts relevant to sentencing by a

preponderance of the evidence . . . .”). Moreover, the Pre-Sentence Report, the factual

accuracy of which Robinson did not dispute below, similarly stated that Robinson initiated

the assault. Nor did the district court abuse its discretion in imposing a 5K2.0 departure

based on Robinson’s violent conduct, which was aided by a fellow gang member and

intended to intimidate an inmate witness who reported a prior assault by Robinson. See

United States v. Kim, 

, 684 (2d Cir. 1990) (concluding that 5K2.0 departure

permissible for misconduct “relat[ing] in some way to” offense of conviction).

       Accordingly, we conclude that the 5K2.0 departure was procedurally reasonable.

       c.     Substantive Reasonableness

       Robinson urges that his 137-month sentence was substantively unreasonable because

it fails adequately to account for his youth and troubled upbringing. Robinson also submits

that the district court abused its discretion in selecting the high end of the Guidelines range

based on Robinson’s gun possession. We will “set aside a district court’s substantive

                                              6
determination only in exceptional cases where the trial court’s decision cannot be located

within the range of permissible decisions.” United States v. 

(internal

quotation marks and emphasis omitted). That is not this case.

       In imposing sentence, the experienced district judge expressly considered the factors

cited by Robinson. He selected a sentence at the high end of the Guidelines range because

the offense level – based primarily on the quantity of distributed narcotics – did not account

fully for Robinson’s violent conduct despite the two-level enhancement for firearm

possession. The “level of violence” inferred by the district court, Robinson Br. at 30, was

supported sufficiently by record evidence, including Robinson’s admitted participation in a

violent street gang and firearm possession on two occasions, one involving shots being fired

into a crowd. Moreover, the district court’s passing reference to a recent shooting

emphasized the dangers of gangs without blaming Robinson for that incident. On this record,

the district court acted well within its “considerable sentencing discretion” in imposing the

challenged term of incarceration. United States v. Jones, 

, 174 (2d Cir. 2008).

       Finally, Robinson asserts unreasonableness based on Guidelines amendments effective

after his sentencing, namely, elimination of the “recency” criminal history provision, see

U.S.S.G. § 4A1.1(e) (2007) (assessing two points if offense occurred within two years of

defendant’s release from prison); 

Amendment 742, and a reduction of the offense

level for crimes involving 35 grams of crack cocaine pursuant to a temporary amendment

promulgated under the Fair Sentencing Act (“FSA”), see Supplement to the 2010 Guidelines

Manual § 2D1.1(c)(7). We are not persuaded. The district court properly applied the

                                              7
Guidelines in effect at the time of sentence. See U.S.S.G. § 1B1.11(a); United States v.

Roberts, 

, 129-30 (2d Cir. 2006). The subsequent amendments do not render

Robinson’s sentence substantively unreasonable.

       We have previously held that the FSA does not apply retroactively to defendants with

unexhausted appeals at the time of its passage. See United States v. Acoff, 

,

202 (2d Cir. 2011). Despite Robinson’s arguments to the contrary, we are bound by that

prior panel’s ruling. See United States v. Thomas, 

, 69 (2d Cir. 2010). We do

not foreclose, however, Robinson’s ability to make further applications to the district court

if the Sentencing Commission’s decision to apply the crack cocaine Guideline amendment

retroactively becomes effective on November 1, 2011. See 18 U.S.C. § 3582(c)(2); U.S.S.G.

§ 1B1.10(c); Press Release, U.S. Sentencing Commission, U.S. Sentencing Commission

Votes Unanimously to Apply Fair Sentencing Act of 2010 Amendment to the Federal

Sentencing Guidelines Retroactively (June 30, 2011).

2.     Fleming

       Fleming challenges as unconstitutionally vague a supervised release condition

prohibiting him from wearing colors or insignia, or obtaining tattoos or burn marks, “of the

Jungle Junkies street gang or any other criminal street gang.” Aug. 5, 2010 Am. J. at 4.

Because Fleming did not contest the condition below, we would ordinarily review for plain

error. See United States v. Green, 

, 122 (2d Cir. 2010). We have applied a

“less rigorous plain error” standard in the sentencing context when, as here, the defendant



                                             8
lacked “sufficient notice of the challenged condition[].” Id.; see also United States v. Sofsky,

, 125 (2d Cir. 2002).

       Applying either standard here, we conclude that Fleming’s judgment of conviction

must be vacated in part. Although the portion of the condition relating to the Jungle Junkies

gang is “sufficiently clear to provide” Fleming with notice of the prohibited conduct, United

States v. 

, that part relating to “any other” gang is unconstitutionally

vague because it “contains no limiting list of the colors or insignia . . . typically associated

with any particular gangs to guide [Fleming] in his clothing choices,” 

that the

district judge will easily remedy this defect on remand.2

3.     Conclusion

       We have considered Robinson’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of conviction as to Robinson is AFFIRMED. For

the reasons explained, we VACATE IN PART the judgment of conviction as to Fleming and

REMAND the matter to the district court for further proceedings consistent with this order.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




       2
         While the same defect appears to infect Robinson’s conditions of release, he has
raised no challenge to his release conditions nor joined in Fleming’s. We do not notice the
error nostra sponte because Robinson can seek modification from the district court. See 18
U.S.C. § 3583(e)(2).

                                               9