11-3114-cr
United States v. Barnes

                               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 TO 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 8th day of May, two thousand twelve.

PRESENT: ROBERT D. SACK,
         REENA RAGGI,
                   Circuit Judges,
         LAURA TAYLOR SWAIN,
                   District Judge.*

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UNITED STATES OF AMERICA
                   Appellee,
               v.                                                                       No. 11-3114-cr

TYRONE BARNES,
                                       Defendant-Appellant.
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FOR APPELLANT:                         Curtis J. Farber, Esq., New York, New York.

FOR APPELLEE:                          Amy Lester, Telemachus P. Kasulis, Brent S. Wible, Assistant
                                       United States Attorneys, for Preet Bharara, United States
                                       Attorney for the Southern District of New York, New York,
                                       New York.

           Appeal from a judgment of the United States District Court for the Southern District

of New York (Shira A. Scheindlin, Judge).


           *
         Judge Laura Taylor Swain of the United States District Court for the Southern
District of New York, sitting by designation.
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on July 28, 2011, is AFFIRMED.

       Tyrone Barnes, who was convicted following a guilty plea to substantive and

conspiratorial heroin trafficking, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (C), 846, challenges

his 210-month prison sentence, representing the low end of his 210-to- 262-month

Sentencing Guidelines range, on the grounds that (1) the district court erred in calculating

his Guidelines range by relying on its finding that Barnes conspired to distribute between

three and ten kilograms of heroin; (2) the district court committed procedural and substantive

error by denying Barnes a downward departure from the Guidelines range; and (3) the 210-

month sentence is substantively unreasonable in light of Barnes’s strong ties to his family

and community. We review Barnes’s sentence under a “deferential abuse-of-discretion

standard.” United States v. Cavera, 

, 189 (2d Cir. 2008) (en banc) (quoting Gall

v. United States, 

, 41 (2007)). We assume the parties’ familiarity with the facts

and record of the underlying proceedings, which we reference only as necessary to explain

our decision to affirm.

1.     Drug Quantity

       A sentence infected by erroneous factfinding will be deemed procedurally

unreasonable. See Gall v. United States, 552 U.S. at 51; accord United States v. Cavera, 550

F.3d at 190. We review challenged factfinding as to drug quantity only for clear error, see

United States v. Watkins, 

, 261 (2d Cir. 2012), which we do not identify here.



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       Where the amount of drugs seized from a defendant at the time of arrest—in this case,

399 bags of heroin, weighing a total of 37 grams—plainly does not represent the full scope

of the charged crime, a district court may “approximate the quantity of the controlled

substance” at issue in the conspiracy by considering, among other factors, “similar

transactions in controlled substances by the defendant.” U.S.S.G. § 2D1.1 cmt. n.12. Such

an approximation need only be supported by a preponderance of the evidence. See United

States v. Jones, 

, 176 (2d Cir. 2008). Here, the district court’s finding that

Barnes conspired to distribute a quantity of heroin that more likely than not exceeded three

kilograms found support in evidence that (1) at the time of arrest, Barnes boasted that only the

day before he had possessed 1,000 bags of heroin, with a total weight of approximately 100

grams, or 1/10 a kilogram on a single day; (2) at his guilty plea, Barnes admitted to conspiring

to distribute more than one kilogram of heroin, the minimum quantity charged, see 21 U.S.C.

§ 841(b)(1)(A); (3) co-conspirator Charmaine Douthett testified that once or twice a week in

2008 or 2009, she had obtained fifty to one hundred bags of heroin from Barnes for

distribution, which the district court reasonably estimated totaled more than one kilogram of

heroin distributed by this single confederate; (4) co-conspirator Luis Bonilla testified that over

ten years he bought heroin from Barnes for his personal use on at least fifty occasions, and

over a two-day period in the early 1990s and again in 2009 he acquired 300 bags of heroin

from Barnes for resale; and (5) Douthett and Bonilla identified “Little Man,” “Preacher,” and

“Chichi” as other conspirators who regularly sold heroin for Barnes throughout the 14-year

drug conspiracy, which the district court reasonably found, based on Douthett’s experience,

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“surely” meant that each had “also sold a kilogram” of heroin over the course of the

conspiracy.

         Insofar as Barnes argues that the evidence did not show that the conspiracy distributed

heroin continuously between 1995 and 2009, no such finding was required to support the

challenged drug quantity determination, particularly in light of Douthett’s testimony that she

distributed more than a kilogram in no more than two years toward the conspiracy’s end. As

for the district court’s decision to credit Douthett’s testimony that she sold Barnes’s heroin

exclusively in that two-year period, the district court was best situated to make this credibility

assessment, and we are hardly “left with the definite and firm conviction that a mistake has

been committed,” as is necessary for us to identify clear error. United States v. Cuevas, 

, 267 (2d Cir. 2007) (internal quotation marks omitted).

         In sum, because the district court’s drug quantity finding was supported by record

evidence and was not derived from impermissible speculation or conjecture, see United States

v. Shonubi, 

, 89–90 (2d Cir. 1993), we reject this procedural challenge as without

merit.

2.       Departure

         Barnes contends that the district court erred in not granting him a downward departure

on the ground that his criminal history category over-represented the seriousness of his past

crimes. See U.S.S.G. § 4A1.3(b)(1). We disagree. Review of the denial of a downward

departure motion is “available only when a sentencing court misapprehended the scope of its

authority to depart or the sentence was otherwise illegal.” United States v. Stinson, 

113, 114 (2d Cir. 2006) (internal quotation marks omitted). “In the absence of clear evidence

of a substantial risk that the judge misapprehended the scope of [her] departure authority,” we

presume a correct understanding of this authority. Id. Here, Barnes does not contend, much

less point to clear evidence, that the district court misunderstood its departure authority or

imposed an illegal sentence. He simply disagrees with the district court’s reasoning in

rejecting his argument that Criminal History Category II overstated the seriousness of his two

prior convictions. This is an assessment entrusted to the discretion of the sentencing court,

and not a basis for the identification of a procedural error on appeal.

3.     Community Ties

       Barnes submits that the district court’s failure to give more mitigating weight to the

strength of his ties to his family and the community renders his Guidelines sentence

substantively unreasonable.      See 18 U.S.C. § 3553(a)(1) (listing “the history and

characteristics of the defendant” as one factor for court to consider at sentencing). In

reviewing a sentence for substantive reasonableness, “we do not consider what weight we

would ourselves have given a particular factor,” but consider only “whether the factor, as

explained by the district court, can bear the weight assigned it under the totality of the

circumstances in this case.” United States v. Cavera, 550 F.3d at 191. We conclude that the

district court, which acknowledged the strength of Barnes’s family and community ties, was

not required to give greater weight to this factor, and that Barnes’s 210-month sentence, which

represents the bottom of his Guidelines range, fits comfortably within the range of permissible

sentencing decisions. See id. at 189.

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4.    Conclusion

      We have considered Barnes’s remaining arguments on appeal and conclude that they

are without merit. The judgment of the district court is AFFIRMED.

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




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