17-150
     US v. Muir

                                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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   9th day of February, two thousand eighteen.
 4
 5   Present:       ROSEMARY S. POOLER,
 6                  ROBERT D. SACK,
 7                             Circuit Judges.
 8                  PAUL A. ENGELMAYER,1
 9                             District Judge.
10
11   _____________________________________________________
12
13   UNITED STATES OF AMERICA,
14
15                                 Appellee,
16
17                         v.                                                   17-150
18
19   PHILLIP MUIR, AKA Zeeks,
20
21                           Defendant-Appellant.
22   _____________________________________________________
23
24   Appearing for Appellant:      Karloff Cylton Commissiong, Adams & Commissiong LLP, New
25                                 York, N.Y.
26
27   Appearing for Appellee:       Robert Allen, Assistant United States Attorney (Diane Gujarati,
28                                 Assistant United States Attorney, on the brief), for Geoffrey S.

     1
       Judge Paul A. Engelmayer, United States District Court for the Southern District of New York,
     sitting by designation.
 1                                 Berman, Interim United States Attorney, Southern District of New
 2                                 York, New York, N.Y.
 3
 4   Appeal from the United States District Court for the Southern District of New York (Berman, J.).
 5
 6        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 7   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 8
 9            Appellant Phillip Muir appeals from the January 9, 2017 judgment of the United States
10   District Court for the Southern District of New York (Berman, J.), sentencing Muir principally to
11   200 months in prison for offenses related to firearms and drug trafficking. We assume the
12   parties’ familiarity with the underlying facts, procedural history, and specification of issues for
13   review.
14
15           Muir argues that the district court’s use of uncharged and acquitted conduct at sentencing
16   violated the Due Process and Double Jeopardy Clauses of the Fifth Amendment, and the Sixth
17   Amendment’s guarantee of trial by jury. We have previously rejected these same arguments. See
18   United States v. Vaughn, 

, 527 (2d Cir. 2005) (“[D]istrict courts may find facts
19   relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the
20   defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that
21   the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by
22   the jury verdict, or (3) a mandatory minimum sentence under [the applicable statute] not
23   authorized by the verdict.”); see also United States v. Ulbricht, 

, 128 (2d Cir. 2017)
24   (“A district court may consider as part of its sentencing determination uncharged conduct proven
25   by a preponderance of the evidence as long as that conduct does not increase either the statutory
26   minimum or maximum available punishment.”). Though these questions continue to raise some
27   constitutional controversy, see, e.g., United States v. Lasley, 

, 921 (8th Cir. 2016),
28   cert. denied, 

(2017) (Bright, J., dissenting) (collecting cases), they are squarely
29   settled by our previous decisions. Accordingly, Muir’s arguments are foreclosed by circuit
30   precedent.
31
32            Muir also argues that the use of acquitted conduct violates principles of collateral
33   estoppel. However, this argument is derivative of the Fifth Amendment Double Jeopardy
34   argument. See Dowling v. United States, 

, 347 (1990) (“[T]he Double Jeopardy
35   Clause incorporates the doctrine of collateral estoppel.”). Given the higher burden of proof at
36   trial than at sentencing, collateral estoppel does not bar the use of acquitted conduct in
37   sentencing. See Cobb v. Pozzi, 

, 114 (2d Cir. 2004) (“[A] difference in the burdens of
38   proof in two proceedings can make the application of collateral estoppel improper … A litigant’s
39   failure to meet a higher burden of proof on an issue in a prior proceeding does not bar him from
40   raising the same issue in a subsequent proceeding in which his burden will be lighter.”) (quoting
41   Purdy v. Zeldes, 

, 259 (2d Cir. 2003)) (internal quotation marks omitted).
42
43           Muir further argues that the district court erred by finding that the government had
44   proved the uncharged or acquitted conduct by a preponderance of the evidence. “A district
45   court’s factual findings at sentencing need be supported only by a preponderance of the
46   evidence, and such findings may be overturned only if they are clearly erroneous.” United States



                                                     2
 1   v. Ryan, 

, 694 (2d Cir. 2015) (quoting United States v. Gonzalez, 

, 62
 2   (2d Cir. 2011)).
 3
 4            Muir attacks the credibility of several witnesses, largely by asserting that they provided
 5   self-serving or illogical testimony. However, given that “assessing the credibility of witnesses is
 6   distinctly the province of the district court,” and that a court’s “factual findings based on the
 7   testimony of witnesses [are] entitled to special deference,” we see no basis for upsetting the
 8   district court’s factual findings on appeal. United States v. Beverly, 

, 642 (2d Cir.
 9   1993).
10
11           We have considered the remainder of Muir’s arguments and find them to be without
12   merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
13   own costs.
14
15
16                                                        FOR THE COURT:
17                                                        Catherine O’Hagan Wolfe, Clerk
18




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