10-1148-cr
United States v. Lucas


                          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 28th day of June, two thousand eleven.

PRESENT:           PIERRE N. LEVAL,
                   DEBRA ANN LIVINGSTON,
                   RAYMOND J. LOHIER, JR.,
                                    Circuit Judges.


UNITED STATES OF AMERICA
          Appellee,

         -v.-                                                No. 10-1148-cr

GARY LUCAS
         Defendant-Appellant.



                               JAMES C. NEVILLE, Port Washington, New York, for Defendant-
                               Appellant.

                               CARTER BURWELL, Assistant United States Attorney (Emily
                               Berger on the brief) for Loretta E. Lynch, United States Attorney for
                               the Eastern District of New York, Brooklyn, New York.

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

DECREED that the judgment of the district court be AFFIRMED.
       Defendant-appellant Gary Lucas appeals from a judgment of conviction entered pursuant to

a plea of guilty to charges of bank robbery, conspiracy to commit bank robbery, and use of a firearm

during the commission of those offenses. See 18 U.S.C. §§ 1951(a), 2113(a), 924(c). On appeal,

Lucas challenges the sentence imposed—principally, 279 months imprisonment—as both

procedurally and substantively unreasonable. Specifically, Lucas contends the district court erred

in (1) including carjacking and abduction enhancements in calculating his offense level, (2) refusing

to reopen a previously held Fatico hearing after this case was remanded for resentencing, (3) varying

upward on the basis of the nearly $1 million in stolen but never recovered funds, and (4) concluding

that the 84-month mandatory minimum for the firearms offense had to run consecutive to, rather

than concurrent with, the sentences imposed for the other offenses. We presume the parties’

familiarity with the underlying facts, the procedural history, and the issues on appeal and revisit

those issues only as necessary to facilitate this discussion.

       We review a district court’s sentence for “reasonableness,” which “requires an examination

of the length of the sentence (substantive reasonableness) as well as the procedure employed in

arriving at the sentence (procedural reasonableness).” United States v. Johnson, 

, 51 (2d

Cir. 2009). We reverse for procedural unreasonableness only where the district court committed

“significant procedural error” that we cannot deem harmless and for substantive unreasonableness

in those “exceptional cases” where the sentence imposed “cannot be located within the range of

permissible decisions.” United States v. Cavera, 

, 189-90 (2d Cir. 2008) (internal

quotation marks omitted).

       First, Lucas challenges the district court’s inclusion of two sentencing enhancements—a two-

level enhancement for a crime involving “carjacking” and a four-level enhancement for a crime in


                                                  2
which the victims were “abducted”—as improper. With respect to the former, he contends that

because co-defendant Gerard Howard operated the vehicle at all times, the armored truck was never

“tak[en] . . . by force.” U.S.S.G. § 2B3.1, cmt. 1. With respect to the latter, he argues that no victim

was “abducted,” U.S.S.G. § 2B3.1(b)(4)(A), because, even though the armored truck was

transported to a different location, the victims remained within the truck at all times and therefore

were not “forced to accompany an offender to a different location,” U.S.S.G. § 1B1.1, cmt. 1.A.

Because both claims turn on application of specific Guidelines provisions, our review is de novo,

, and after engaging in such review, we affirm for substantially the reasons

set forth by the district court at sentencing.

        Specifically, we detect no error in the district court’s conclusion that the crime—which

unquestionably turned on the taking, by force, of the armored truck from its rightful owner and

intended purpose—constituted a “carjacking” for purposes of the enhancement. We similarly see

no error in the finding that defendants “abducted” the two non-participating armored truck

employees by tying them up and transporting them, in the truck, to a different location. We

therefore reject both claims on appeal as meritless.

        Lucas next contends the district court erred in failing to “reopen” a previously held Fatico

hearing so as to allow him to testify as to his involvement, or lack thereof, in certain aspects of the

crime. See United States v. Fatico, 

(2d Cir. 1979). Because a district court “has

broad discretion as to what types of procedures are needed . . . for determination of relevant disputed

facts” at sentencing, we review a district court’s fact-finding procedures at sentencing under the

relaxed “abuse of discretion” standard, taking account of, “among other things, the probative value

and burdens of the proposed procedure.” United States v. Perez, 

, 254 (2d Cir. 2002)


                                                   3
(internal quotation marks omitted).       We detect no abuse of discretion on these facts. As a

preliminary matter, at the time the motion to reopen was made and denied, the district court had

already held extensive factual hearings and reached informed, amply supported factual determina-

tions. More important, the factual finding Lucas sought to contest through a reopened Fatico

hearing was of no relevance to any issue the district court had to resolve at the resentencing hearing.

Accordingly, we cannot conclude that the district court abused its discretion in determining that the

burdens of reopening the hearing outweighed any probative value to be gained in so doing.

        Third, Lucas argues the district court violated his due process rights by improperly placing

on him the burden “to disprove a fact that was the basis for an enhanced sentence.” Specifically,

Lucas argues that the district court impermissibly penalized him for exercising his Fifth Amendment

rights and remaining silent at sentencing as to the location of the money stolen during the course of

the bank robbery. The argument is without merit. While the district court did vary upward from the

advisory Guidelines’ range based, in part, on the more than $1 million that was never recovered, it

made abundantly clear that it was not “placing any burden on [Lucas] at all” but was instead “strictly

dealing with the facts” as established through the government’s evidence and, specifically, the

testimony of an FBI agent establishing that “[t]he money is gone, not accounted for” and that the

defendant—who, after all, pled guilty to stealing that money—“spent a considerable amount of

money after . . . [the] heist until [he was] caught.” The district court thus concluded that it could

“take . . . into consideration” that “[t]he money is gone. . . . That’s a fact.” We detect no error in

this reasoning, nor in the district court’s use of this fact in its consideration of, among other things,

the “nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1). We thus affirm its ultimate

conclusion that an upward variance was warranted on these facts.


                                                   4
       Finally, Lucas contends in his brief that imposition of the mandatory 84-month minimum for

the firearms offense as a consecutive rather than concurrent sentence violated his due process rights.

However, at oral argument, Lucas withdrew this challenge, conceding that the claim is now

foreclosed by Abbott v. United States, — U.S. —, 

(2010). Accordingly, we need not

address this issue further.

       To the extent Lucas raises other claims on appeal, we have considered those arguments and

find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district

court is hereby AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                  5