Opinion
No. 06-4869-cr.
October 31, 2008.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.
For Appellant: GLENN A. GARBER, ESQ., New York, NY.
For Appellee: ROGER A. BURLINGAME, Assistant United States Attorney, (David C. James, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, NY.
Defendant Brandon Shaw appeals from a judgment of the United States District Court for the Eastern District of New York (Johnson, J.) entered January 31, 2006. After a jury trial, Shaw was convicted of conspiring to possess with intent to distribute and possessing with intent to distribute more than one hundred kilograms of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). The District Court sentenced him to a term of imprisonment of 188 months. We assume the parties' familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal.
Shaw argues that the Government's rebuttal summation denied him the right to a fair trial and that the Goverment improperly cross-examined a co-defendant's witnesses. Shaw also challenges his sentence on the grounds that the District Court erroneously (1) considered his illegal alien status; (2) applied the United States Sentencing Guidelines ("U.S.S.G.") § 3B1.1(a) aggravating role enhancement; and (3) applied a two-level enhancement to his criminal history category.
I. The Government's Summation
Shaw claims that the Government's summation was improper because it called his counsel's credibility into question and intimated that she acted improperly. "A prosecutor's statements during summation, if improper, will result in a denial of due process rights only if, in the context of the entire summation, they cause the defendant substantial prejudice." United States v. Rivera, 22 F.3d 430, 437 (2d Cir. 1994). To determine whether a defendant was prejudiced, courts must consider "the severity of the misconduct, the curative measures taken by the court, and the certainty of conviction absent the misconduct." Id. In addressing why it failed to produce a cell phone seized from Shaw at the time of his arrest as evidence at trial — an issue raised by defense counsel in her summation — the Government explained that the phone was returned to defense counsel. Shaw inaccurately characterizes these remarks as an attack on his counsel's credibility. The Government's statement that the phone was returned to Shaw's counsel did not imply any wrongdoing on his attorney's part, nor did it imply that she was responsible for the phone; it merely provided an explanation as to why the Government was unable to introduce the seized cell phone as evidence at trial. Thus, the challenged portion of the Government's summation was clearly not improper.
II. The Government's Cross-Examination of Co-Defendant's Witnesses
Because Shaw did not timely object to the scope of the cross-examination of co-defendant Caesar's witnesses, we must review his claim for plain error. The defendant bears the burden of demonstrating plain error. See United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) (citing United States v. Vonn, 535 U.S. 55, 59 (2002)). To establish plain error, the defendant must demonstrate (1) an error, (2) that is plain, and (3) affects substantial rights. Vaval, 404 F.3d at 151 (citing United States v. Olano, 507 U.S. 725, 732 (1993)). "Where these conditions are met, we have the discretion to notice a forfeited error if . . . it seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Quinones, 511 F.3d 289, 316 (2d Cir. 2007) (citing Olano, 507 U.S. at 732). We find that the questions posed to Caesar's witnesses on cross-examination by the government (which concerned whether they recognized Shaw as someone who worked at Caesar's business) were sufficiently related to the subject matter of direct examination, and thus, the District Court did not err in permitting this line of questioning.
Shaw erroneously asserts that he preserved this argument by filing a pretrial severance motion; such a motion, however, does not alert the court and opposing counsel to cross-examination objections.
III. Sentencing Errors
A. Reference to Shaw's Illegal Alien Status
This Court has consistently held that "national origin and naturalized status" cannot "become the basis for determining the sentence." United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007); see also United States v. Leung, 40 F.3d 577, 586 (2d Cir. 1994). Here, when sentencing Shaw, the District Court considered his status as an illegal alien in the context of his character; it did not, however, impermissibly base his sentence on his nationality or ethnicity. Compare Leung, 40 F.3d 577, 585 (2d Cir. 1994) ("The purpose of my sentence here is to . . . generally deter others, particularly others in the Asiatic community . . . and if people want to come to the United States, they had better abide by our laws."); Kaba, 480 F.3d at 156 ("[The sentence] is one that I don't think people coming here from Guinea are going to want to say I want to put in that kind of time being stupid about American laws.") (alterations in original).
B. Application of U.S.S.G. § 3B1.1(a)
We review a sentencing court's application of the Sentencing Guidelines de novo, United States v. Loudon, 385 F.3d 795, 797 (2d Cir. 2004), and ask whether the sentence was unreasonable, United States v. Booker, 543 U.S. 220, 261 (2005). A sentence must be both procedurally and substantively reasonable. United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir. 2005). U.S.S.G. § 3B1.1(a) increases an offense level by four levels if the defendant "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." For purposes of the statute, a "participant" is "a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1 Application Note 1. In applying this sentencing enhancement, we evaluate a district court's findings of fact under the clearly erroneous standard. United States v. Huerta,
371 F.3d 88, 91 (2d Cir. 2004) (per curiam). Contrary to Shaw's contention, there is sufficient record evidence to support a finding that there were at least five participants in this marijuana conspiracy.
C. Two-Level Enhancement in Shaw's Criminal History Category
Shaw argues that the District Court did not give him proper notice of its intent to upwardly depart from the criminal history category recommended in the PSR. Here, however, the Government moved for an upward departure, which Shaw opposed in a memorandum prior to sentencing. Under these facts, we find that Shaw received adequate notice of the upward departure. See e.g. United States v. Contractor, 926 F.2d 128, 131-32 (2d Cir. 1991) (clarifying the notice requirement by indicating that notice can come from a source other than the judge, as long as the defendant is adequately aware of the possibility of a departure and the grounds for it).
In addition, Shaw claims that the District Court committed procedural error by failing to consider the criminal history categories sequentially; he argues that the court jumped from Category I to Category III without considering anything in between. This Court has stated, however, that "a mechanistic step-by-step approach is not required," so long as the sentencing court explains the reasons for the upward departure. United States v. Simmons, 343 F.3d 72, 78 (2d Cir. 2003). Here, as noted below, the District Court explained its reasons for imposing the upward departure; thus, there was no procedural error.
Finally, Shaw argues that his sentence was substantively unreasonable because the District Court erred by upwardly departing in Shaw's criminal history category. A defendant may receive an upward departure if he either (i) committed the crime of conviction while awaiting trial in other cases or (ii) possesses a record demonstrating prior similar adult criminal conduct that did not result in a conviction. U.S.S.G. § 4A1.3(a)(2)(D) (E). "If reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history . . . an upward departure may be warranted." U.S.S.G. § 4A1.3(a)(1). Under U.S.S.G. § 4A1.3(a)(4)(A), "the court shall determine the extent of a departure . . . by using, as a reference, the criminal history category applicable to defendants whose criminal history or likelihood to recidivate most closely resembles that of the defendant's."
We reject Shaw's contention that the factual basis for imposing an upward departure must be proven by a standard greater than preponderance of the evidence. He bases this claim on language from United States v. Shonubi, 103 F.3d 1085, 1089 (2d Cir. 1997) and United States v. Gigante, 94 F.3d 53, 56-57 (2d Cir. 1996), which this Court expressly disavowed in United States v. Cordoba-Murgas, 233 F.3d 704, 708-09 (2d Cir. 2000) (concluding that preponderance of the evidence is the correct standard).
In its sentencing memorandum, the Government argued for an upward departure based on the PSR's reference to Shaw's flight from prosecution in two other marijuana trafficking cases. The Government contended that by placing Shaw in Criminal History Category I, "the PSR significantly understates [Shaw's] prior criminal record" and "rewards [Shaw's] decision to flee these prosecutions by failing to hold him accountable for this behavior." At sentencing, the District Court found that "Shaw was a fugitive while this criminal conduct was being perpetrated in this district" and adopted the government's position that Shaw's criminal history category should be Level III. Although Shaw certainly challenged his criminal history enhancement before the District Court, he never disputed the factual basis upon which the court relied, i.e., that he was the individual who twice fled drug-related prosecutions.
Accordingly, for the reasons set forth above, the judgment of the district court is hereby AFFIRMED.