Filed: May 26, 2016
Latest Update: Mar. 02, 2020
Summary: 15-2830-cr United States v. Pecker 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 OR
Summary: 15-2830-cr United States v. Pecker 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 ORD..
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15-2830-cr
United States v. Pecker
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of May, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 RALPH K. WINTER,
8 DENNIS JACOBS,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-2830-cr
16
17 RICHARD DETKE,
18 Defendant,
19
20 CRAIG PECKER,
21 Defendant-Appellant.
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23
24 FOR APPELLEE: ALLEN L. BODE, Assistant United
25 States Attorney (Jo Ann M.
26 Navickas, Assistant United
27 States Attorney, on the brief),
28 of counsel for Robert L. Capers,
1
1 United States Attorney for the
2 Eastern District of New York,
3 Brooklyn, New York.
4
5 FOR APPELLANT: EDWARD S. ZAS, of counsel for
6 Federal Defenders of New York,
7 Inc., Appeals Bureau, New York,
8 New York.
9
10 Appeal from a judgment of the United States District
11 Court for the Eastern District of New York (Wexler, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Defendant Craig Pecker appeals from the judgment of the
18 United States District Court for the Eastern District of New
19 York (Wexler, J.), revoking a five-year term of supervised
20 release and sentencing Pecker principally to eleven months’
21 imprisonment, upon a guilty plea to three violations of
22 supervised release (“VOSR”). The appeal is expedited
23 because Pecker’s term of imprisonment is expected to end on
24 June 23, 2016. We assume the parties’ familiarity with the
25 underlying facts, the procedural history, and the issues
26 presented for review.
27
28 In determining a defendant’s Sentencing Guidelines
29 range for a VOSR, the “criminal history category is the
30 category applicable at the time the defendant originally was
31 sentenced to a term of supervision.” U.S.S.G. § 7B1.4(a)
32 n.*. Pecker was sentenced to supervision (and, principally,
33 to ten years’ imprisonment, the mandatory minimum sentence)
34 in 2008, by United States District Judge Platt, following
35 Pecker’s guilty plea to cocaine distribution conspiracy.
36 The case was reassigned to Judge Wexler in November 2014,
37 for resolution of the VOSR allegations.
38
39 Pecker argues that Judge Wexler erred in using criminal
40 history category III to calculate his Guidelines range for
41 the VOSR sentencing, because (he claims) Judge Platt did not
42 determine at the original sentencing whether his criminal
43 history was category II (as argued by Pecker) or III (as
44 argued by the Probation Department). He further contends
45 that criminal history category I was in fact the applicable
46 category at the time of the original sentencing, and should
47 have been applied to calculate his Guidelines range at the
2
1 VOSR sentencing. See U.S.S.G. § 7B1.4 cmt. n.1 (“In the
2 rare case in which no criminal history category was
3 determined when the defendant originally was sentenced to
4 the term of supervision being revoked, the court shall
5 determine the criminal history category that would have been
6 applicable at the time the defendant originally was
7 sentenced to the term of supervision.”).
8
9 Pecker did not raise this argument below (his
10 then-counsel agreed that criminal history category III
11 applied), so it is reviewed for plain error.1
12
13 At Pecker’s 2008 sentencing hearing, Judge Platt did
14 not specify whether criminal history category II or III
15 applied. The statement of reasons filed as part of the
16 criminal judgment indicated that category III applied, and
17 adopted the PSR (with one amendment), which stated the same.
18 But even assuming (without deciding) that Judge Platt did
19 not thus “determine” Pecker’s criminal history category for
20 purposes of U.S.S.G. § 7B1.4(a), Pecker cannot show plain
21 error warranting vacatur of his sentence.2
22
23 This is because Pecker cannot demonstrate that he
24 suffered prejudice from Judge Wexler’s failure to determine
25 the criminal history category sua sponte. Three criminal
26 history points are properly attributed to Pecker’s three
27 harassment convictions under United States v. Morales, 239
28 F.3d 113 (2d Cir. 2000), on which Pecker relies to argue
1
“Plain error review requires a defendant to
demonstrate that ‘(1) there was error, (2) the error was
plain, (3) the error prejudicially affected his substantial
rights, and (4) the error seriously affected the fairness,
integrity or public reputation of judicial proceedings.’”
United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)
(quoting United States v. Flaharty, 295 F.3d 182, 195 (2d
Cir. 2002)).
2
The government suggests in passing but does not press
that the challenge to the criminal history category
contained in the statement of reasons was waived because the
original plea was subject to a plea agreement in which
Pecker waived his appellate rights as to any sentence of 121
months or below. For purposes of this appeal, we assume
(without deciding) that Pecker did not thus waive the
argument.
3
1 otherwise. Pecker’s harassment convictions (which were all
2 originally charged as assault or assault with the intent to
3 cause physical injury) are not “similar to” the listed
4 misdemeanors and petty offenses excluded from counting by
5 U.S.S.G. § 4A1.2(c)(1) (2007).3 Pecker did not strike a
6 single blow of unknown severity in self-defense as did the
7 defendant in Morales, but rather engaged in a culpable
8 pattern of violence through the use of physical force. As
9 to the first offense, Pecker kicked and bit his girlfriend,
10 causing physical injury (and leading the victim to obtain an
11 order of protection); as to the second, Pecker violated the
12 order of protection, and intentionally pushed his girlfriend
13 to the ground, causing her to injure her hand; and as to the
14 third, he grabbed his girlfriend around the throat and
15 choked her, broke down a door attempting to pull her into
16 the bedroom, pushed her down, and kicked her when she fell
17 to the floor--while she was six months pregnant.4 And
18 unlike in Morales, circumstances suggest a likelihood of
19 recidivism: multiple instances of similar violent conduct5;
20 and correlation of this conduct with substance abuse, which
21 is still a problem for Pecker and underlies his VOSR.
22
23 Two additional points are justified because Pecker
24 engaged in the cocaine distribution conspiracy while under
3
With a conviction for “harassment,” in which the
statute punishes a broad range of conduct, a judge “must
focus on the particular conduct of the defendant. In such
circumstances, a sentencing judge making the ‘similar to’
comparison is applying the guideline to the facts, a matter
which we are to give ‘due deference.’” Morales, 239 F.3d at
118 (quoting 18 U.S.C. § 3742(e)). We therefore do not
suggest that our analysis of Pecker’s prior convictions is
the only acceptable one. However, because Pecker is soon
due to be released from his term of imprisonment, and
because the issue was not raised below, we engage in that
analysis for the first time on appeal.
4
Although Pecker was a minor when he first entered
into this relationship (which might suggest lessened
culpability, as he was abused as a matter of law by his
adult girlfriend), he was of age at the time he committed
these offenses.
5
Furthermore, Pecker admitted to the Probation
Department that he frequently used physical force against
his former girlfriend.
4
1 court supervision in the form of conditional discharge
2 sentences for those three harassment convictions.6 A one-
3 year conditional discharge sentence is the equivalent of a
4 criminal justice sentence for purposes of U.S.S.G.
5 § 4A1.1(d) “because there is no discernible difference
6 between a conditional discharge sentence and a sentence of
7 unsupervised release” and because the state court retains
8 the power to revoke a conditional discharge sentence prior
9 to its termination.7 United States v. Labella-Szuba, 92
10 F.3d 136, 138 (2d Cir. 1996); see also
11 U.S.S.G. § 4A1.1(d) & cmt. n.4 (2007); cf. United States v.
12 Ramirez,
421 F.3d 159, 163-67 (2d Cir. 2005) (concluding
13 that one-year conditional discharge sentence pursuant to
14 N.Y. Penal Law § 65.05 is the equivalent of a one-year
15 sentence of probation for purposes of U.S.S.G.
16 § 4A1.2(c)(1)(A) (2005)). These two points, added to the
17 three points for Pecker’s harassment convictions for a total
18 of five criminal history points, result in a criminal
19 history category III. Thus, Pecker has failed to meet the
20 plain-error test because he has not shown that Judge
21 Wexler’s failure to calculate his criminal history category
22 affected Pecker’s substantial rights.
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6
Pecker does not appear to dispute that, if his
harassment convictions can be counted under § 4A1.2, the
conditional discharge sentences serve as predicate for the
§ 4A1.1(d) two-point increase. See Reply Br. at 18-19.
7
Although the PSR is silent as to the duration of
Pecker’s conditional discharge sentences, Pecker appears to
concede that they were one year in duration. Reply Br. at
10; see also N.Y. Penal Law § 65.05(3)(b) (contemplating
one-year period of conditional discharge for harassment
conviction); Ramirez, 421 F.3d at 163 n.2.
5
1 For the foregoing reasons, and finding no merit in
2 Pecker’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
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