17-3352
United States v. Bohannon

                             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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
5th day of October, two thousand eighteen.

Present:
                PIERRE N. LEVAL,
                RICHARD C. WESLEY,
                DEBRA ANN LIVINGSTON,
                       Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                            Plaintiff-Appellee,

                v.                                                 17-3352

JONATHAN BOHANNON,

                            Defendant-Appellant,

JERMAINE BUCHANAN, AKA HOT MAIN, RASHAD
HEARD, OMAR BAHAMONDE, AKA DIRK, TAVAR
JOHNSON, MOYAN FORBES, TYSHEEM WRIGHT,
EBONEY WOOD, AKA SIS, SYBIL HOPKINS, RONELL
HANKS, AKA BIZ, AKA ACE, CARLOS SOTO, AKA
MACHON, STEVEN HUTCHINSON, AKA L, YAZMINE
MORALES, D'METRIUS WOODWARD, AKA FLEA,

                  Defendants.
_____________________________________

                                                   1
For Defendant-Appellant:                    CHRISTOPHER DUBY, ESQ. Hamden, Connecticut.

For Plaintiff-Appellee:                     RAHUL KALE, Assistant United States Attorney, District
                                            of Connecticut, (Marc H. Silverman, of counsel, on the
                                            brief), for John H. Durham, United States Attorney for
                                            the District of Connecticut.



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

(Hall, J.).

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

DECREED that the October 17, 2017 judgment of the district court is AFFIRMED.

        Defendant-Appellant Jonathan Bohannon pleaded guilty on May 11, 2017 to one count of

conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine and

280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. He also pleaded

guilty to one count of possession with intent to distribute 280 grams or more of cocaine base, in

violation of 21 U.S.C. § 841, and to one count of unlawful possession of firearms and ammunition

by a convicted felon, in violation of 18 U.S.C. §§ 922 and 924. On October 6, 2017, the district

court sentenced Bohannon to 160 months of imprisonment, five years of supervised release, and a

special assessment of $300. Bohannon argues that the district court erred procedurally in

attributing more than six kilograms of cocaine to him in determining his base level offense for

United States Sentencing Guidelines (“Guidelines”) purposes. He also claims that his sentence is

substantively unreasonable in light of the sentencing factors set forth in 18 U.S.C. § 3353(a).

        We review the reasonableness of the sentence imposed by the district court for abuse of

discretion. United States v. Verkhoglyad, 

, 127 (2d Cir. 2008). A sentence is

procedurally unreasonable if the district court “fails to calculate the Guidelines range[,] . . . makes



                                                  2
a mistake in its Guidelines calculation, or treats the Guidelines as mandatory.” United States v.

Cavera, 

, 190 (2d Cir. 2008) (en banc) (citation omitted). “We will set aside sentences

as substantively unreasonable only in exceptional cases where the trial court’s decision cannot be

located within the range of permissible decisions, that is, when sentences are so shockingly high,

shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would

damage the administration of justice.” United States v. Aldeen, 

, 255 (2d Cir. 2015)

(alteration in original) (internal quotations omitted).

       First, we conclude that the district court did not commit procedural error in attributing more

than six kilograms of cocaine to Bohannon for purposes of calculating his Guidelines range. The

quantity of drugs attributable to a defendant is a question of fact that the government must prove

by a preponderance of the evidence. United States v. Jones, 

, 175 (2d Cir. 2008). A

district court’s quantity determination “will not be disturbed unless it is clearly erroneous.” United

States v. Rios, 

, 139 (2d Cir. 2014) (quoting United States v. Richards, 

,

70 (2d Cir. 2002)). Bohannon has failed to show error, much less clear error in the district court’s

calculation of the drug quantity attributable to him.

       Following Bohannon’s guilty plea, the district court conducted a lengthy evidentiary

hearing at which a cooperating co-defendant along with Special Agent Michael Zuk of the Federal

Bureau of Investigation testified about Bohannon’s involvement in a cocaine and heroin

distribution network. Agent Zuk reviewed a series of intercepted communications (phone calls and

text messages) between Bohannon and Ronnell Hanks, a “higher up” dealer. Joint App’x 155.

Bohannon argues that the district court improperly relied on these intercepted communications in

calculating the quantity of cocaine properly attributable to him, on the theory that the content of




                                                  3
the communications does not clearly convey the type and quantity of drug being discussed. For

the following reasons, we disagree.

       At the start, the district court based its cocaine quantity attribution on significant evidence,

including the cooperating co-defendant’s testimony and the 346.2 grams of cocaine base recovered

at the time of Bohannon’s arrest. As to the numerous intercepted communications between

Bohannon and Hanks, many relate exact numbers easily understood as quantities of cocaine (e.g.,

“100” in reference to 100 grams), along with references to “cook[ing].” J.A. at 244. Consistent

with these intercepted communications, Bohannon’s co-defendant testified that Hanks sold

cocaine generally packed in 100-gram units, and that he had observed Bohannon with Hanks on

one occasion with a package of 100 grams of cocaine and, on another occasion, had witnessed

Hanks “weigh[ ] up” about 250 grams of cocaine on a scale directly in front of Bohannon. J.A. at

165. In a separate recorded communication, a woman who had been romantically involved with

Bohannon described his apartment as a “factory,” later clarifying to an investigator that she meant,

“a factory [where] you would cook cocaine.” J.A. at 256.

       Returning to the intercepted communications, Agent Zuk provided testimony, based on his

investigation and review of these communications, estimating the amount of cocaine and cocaine

base being discussed between Bohannon and Hanks. The district court carefully reviewed the

conversations. When left with any doubt as to the drug quantity being discussed, the district court

made clear that it did not “feel comfortable drawing the inference” that a higher quantity was

involved and instead adopted a more conservative estimate. Taking all of the evidence collectively,

the district court ultimately rejected the government’s more aggressive calculation of Bohannon’s

cocaine attribution quantity in favor of the lower calculation offered in the Presentencing Report.




                                                  4
We see no reason to believe that the district court committed any error in calculating Bohannon’s

cocaine attribution quantity, and certainly not “clear error.”

        We also conclude that Bohannon’s 160-month sentence is substantively reasonable.

“While we do not presume that a Guidelines sentence is necessarily substantively reasonable, that

conclusion is warranted in the overwhelming majority of cases, and thus especially when, as here,

a defendant challenges a below-Guidelines sentence.” United States v. Messina, 

, 66

(2d Cir. 2015) (citations and internal quotation marks omitted). The district court emphasized that

Bohannon did not use a firearm when arrested and that his longest previous period of incarceration

was approximately 20 months. It also credited the cooperating co-defendant’s testimony about

Bohannon’s reputation as a “shooter” and noted that it was “troubled” about the number of guns

in Bohannon’s possession at the time of his arrest, as well as the seriousness of his crimes. The

district court ultimately rejected the government’s proposed sentence of 204 months, and chose to

depart downward from the Guidelines calculation, imposing a sentence below the Guidelines range

of 188 to 235 months of imprisonment.1

        We disagree with Bohannon’s contention that the district court overlooked various

mitigating factors in the sentencing proceeding. The district court expressly considered the factors

mentioned above, as well as Bohannon’s employment history and status as a father. The fact that



1
  The district court attributed 6,116 grams of cocaine and 346.2 grams of cocaine base to Bohannon. These
attributions resulted in a base offense level of 30. The district court then added two-level enhancements for
the possession of a firearm, for maintaining a drug premises, and for Bohannon’s aggravating role in
managing or supervising his “cook.” It then subtracted two levels for Bohannon’s acceptance of
responsibility, bringing his total offense level to 34 and placing him in Criminal History Category III. It
bears mentioning, however, that the two drug offenses to which Bohannon pleaded guilty carry a mandatory
minimum sentence of 120 months each. See 21 U.S.C. § 841(b); 21 U.S.C. § 846. The court below sentenced
him to 120 months on the two drug counts, and to 40 months for the unlawful possession of firearms and
ammunition. Therefore, the court below sentenced Bohannon to the bare minimum on the drug counts to
which he pleaded guilty.


                                                     5
the district court imposed a below-Guidelines sentence, rejecting the government’s position that a

sentence of 17 years was necessary “to deter [the defendant] and to protect the public,” suggests

that the court took these mitigating factors into account.

                                          *      *       *

       We have considered Bohannon’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                 6