Filed: Sep. 07, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3527 USA v. Spears 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
Summary: 09-3527 USA v. Spears 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 P..
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09-3527
USA v. Spears
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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7 th day of September, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 REENA RAGGI,
9 Circuit Judge,
10 JED S. RAKOFF,
11 District Judge. *
12
13 - - - - - - - - - - - - - - - - - - - -X
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 09-3527-cr
19
20 TREVOR SPEARS, also known as Bunji,
21 also known as Vegas, also known as
22 Lunch-Box,
*
District Judge Jed S. Rakoff, of the United States
District Court for the Southern District of New York,
sitting by designation.
1
1
2 Defendant-Appellant.
3 - - - - - - - - - - - - - - - - - - - -X
4
5 FOR APPELLANT: Michael Young (Lisa Scolari, Law Office
6 of Lisa Scolari, on the brief), New York,
7 NY.
8
9 FOR APPELLEE: James P. Loonam, Assistant United States
10 Attorney (Jo Ann M. Navickas and Daniel
11 S. Silver, Assistant United States
12 Attorneys, on the brief), for Loretta E.
13 Lynch, United States Attorney for the
14 Eastern District of New York, United
15 States Attorney’s Office for the Eastern
16 District of New York, Brooklyn, NY.
17
18 Appeal from a judgment of the United States District
19 Court for the Eastern District of New York (Ross, J.).
20
21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22 AND DECREED that the judgment of the district court be
23 AFFIRMED.
24
25 Defendant-appellant Trevor Spears appeals from the
26 judgment of conviction entered by the United States District
27 Court for the Eastern District of New York (Ross, J.) ,
28 following a jury trial. We assume the parties’ familiarity
29 with the underlying facts, the procedural history, and the
30 issues presented for review.
31
32 [1] Spears argues that his use of a firearm in
33 relation to heroin dealing activity was double-counted.
34 That conduct formed the basis of his Count Five conviction
35 for a violation of 18 U.S.C. § 924(c)(1)(A)(i), for which
36 the district court sentenced Spears to 60 months of
37 imprisonment to run concurrently with all other terms of
38 imprisonment. That conduct also formed the basis of a two
39 level weapon enhancement in the advisory Guidelines
40 calculation of the sentence for the Count Four conviction,
41 pursuant to U.S.S.G. § 2D1.1(b)(1). Notwithstanding the
42 government’s contention, we identify no true waiver of this
43 argument precluding even plain error review. See United
44 States v. Quinones, 511 F.3d 289, 321 & n.21 (2d Cir. 2007).
45 Rather, we treat the unpreserved challenge as forfeited,
46 review for plain error, and find none.
2
1 Spears relies on Application Note 4 to U.S.S.G. §
2 2K2.4, which provides in relevant part that “[i]f a sentence
3 under [§ 924(c)] is imposed in conjunction with a sentence
4 for an underlying offense, do not apply any specific offense
5 characteristic for possession, brandishing, use, or
6 discharge of an explosive or firearm when determining the
7 sentence for the underlying offense.” U.S.S.G. § 2K2.4 cmt.
8 n.4. However, this guidance becomes ambiguous--and
9 certainly is not “clear or obvious,” United States v.
10 Deandrade, 600 F.3d 115, 119 (2d Cir. 2010) (internal
11 quotation marks omitted)--as to whether the two level weapon
12 enhancement for the underlying offense applies when the §
13 924(c) sentence is imposed concurrently pursuant to our
14 holdings in United States v. Whitley,
529 F.3d 150 (2d Cir.
15 2008), and United States v. Williams,
558 F.3d 166 (2d Cir.
16 2009). The Guidelines background commentary does not appear
17 to contemplate concurrent sentences:
18
19 A sentence imposed pursuant to [18 U.S.C. §
20 924(c)] must be imposed to run consecutively to
21 any other term of imprisonment. To avoid double
22 counting, when a sentence under this section is
23 imposed in conjunction with a sentence for an
24 underlying offense, any specific offense
25 characteristic for explosive or firearm discharge,
26 use, brandishing, or possession is not applied in
27 respect to such underlying offense.
28
29 U.S.S.G. § 2K2.4 cmt. background (emphasis added).
30 Accordingly, any error in applying the two level weapon
31 enhancement was not plain error. See United States v. Whab,
32
355 F.3d 155, 158 (2d Cir. 2004) (“For an error to be plain,
33 it must, at a minimum, be clear under current law. We
34 typically will not find such error where the operative legal
35 question is unsettled, including where there is no binding
36 precedent from the Supreme Court or this Court.” (internal
37 quotation marks and citations omitted)).
38
39 [2] Spears contends that the district court erred in
40 calculating the drug quantities attributable to him based on
41 speculation rather than specific evidence. But the
42 testimony of the cooperating witnesses on this issue is
43 based in part on personal observation and knowledge of
44 Spears’s drug dealing activities, and even the sharing of
45 customers between Spears and certain cooperators. Such
46 testimony is circumstantial evidence supporting the district
47 court’s quantity findings by a preponderance of the
3
1 evidence. See United States v. Jones, 531 F.3d 163, 175 (2d
2 Cir. 2008); see also U.S.S.G. § 2D1.1 cmt. n.12.
3
4 [3] Spears challenges the reasonableness of his
5 sentence based on the disparity between his sentence of 282
6 months of imprisonment and the lower sentences imposed on
7 his co-defendants. But a sentencing “disparity between non-
8 similarly situated co-defendants is not a valid basis for a
9 claim of error under 18 U.S.C. § 3553(a)(6).” United States
10 v. Fernandez,
443 F.3d 19, 28 (2d Cir. 2006). Each of the
11 six co-defendants cited by Spears pleaded guilty to one
12 count of heroin distribution conspiracy, whereas a jury
13 convicted Spears of seven narcotics counts and one firearm
14 count. Moreover, the district court made specific factual
15 findings regarding Spears’s “lengthy criminal history that
16 includes substantial violent criminality,” further
17 differentiating Spears from his co-defendants. We therefore
18 find no error in the procedural, see
Fernandez, 443 F.3d at
19 30 (“[W]e presume, in the absence of record evidence
20 suggesting otherwise, that a sentencing judge has faithfully
21 discharged her duty to consider the statutory factors.”), or
22 substantive, see United States v. Cavera,
550 F.3d 180, 189
23 (2d Cir. 2008) (in banc) (“We will instead set aside a
24 district court’s substantive determination only in
25 exceptional cases where the trial court’s decision cannot be
26 located within the range of permissible decisions.”
27 (internal quotation marks omitted)), reasonableness of
28 Spears’s sentence.
29
30 [4] Spears concedes that the jury instruction
31 regarding school proximity for Counts Six and Seven--
32 charging violations of 21 U.S.C. § 860(a)--accords with
33 Second Circuit precedent. But he nevertheless argues that
34 specific knowledge of school proximity should be required
35 for a conviction under that statute. We disagree. “[T]he
36 schoolyard statute is one of strict liability such that a
37 defendant can violate the statute’s terms without knowing
38 that he was within one thousand feet of a school.” United
39 States v. Martin,
544 F.3d 456, 457 (2d Cir. 2008) (per
40 curiam).
41
42
43
44
45
4
1 We have considered all of Spears’s contentions on this
2 appeal and have found them to be without merit. Accordingly,
3 the judgment of the district court is AFFIRMED.
4
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, CLERK
8
5
