Opinion
1:18-CR-00126 EAW
10-15-2020
UNITED STATES of America, v. Deonte COOPER a/k/a Terry, Defendant.
Charles J. Volkert, Joseph M. Tripi, Joshua A. Violanti, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Charles J. Volkert, Joseph M. Tripi, Joshua A. Violanti, Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Defendant Deonte Cooper a/k/a Terry ("Cooper") was convicted after a jury trial of Count 1 of a Second Superseding Indictment charging conspiracy to commit firearms offenses in violation of 18 U.S.C. § 371. (Dkt. 334; see Dkt. 246). Sentencing is scheduled for November 17, 2020. (Dkt. 468). A revised Presentence Investigation Report ("PSR") was filed on July 9, 2020. (Dkt. 424). Cooper has filed objections (Dkt. 413) and the government has responded to the objections (Dkt. 416). The Court held oral argument concerning the objections on September 17, 2020, at which time it reserved decision. (Dkt. 468). The Court hereby resolves the objections as set forth below.
I. LEGAL STANDARD FOR RESOLVING OBJECTIONS
Pursuant to Federal Rule of Criminal Procedure 32, the Court must, prior to sentencing, "for any disputed portion of the presentence report or other controverted matter ... rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). The Court is not required to "perform a line-by-line review of the PSR," so long as it "resolve[s] the substantive challenges" thereto. United States v. Reiss , 186 F.3d 149, 156-57 (2d Cir. 1999).
"At sentencing, disputed factual allegations must be proven by the government by a preponderance of the evidence...." United States v. Rizzo , 349 F.3d 94, 98 (2d Cir. 2003). However, sentencing proceedings are not "second trials," United States v. Fatico , 603 F.2d 1053, 1057 (2d Cir. 1979), and the sentencing court may use hearsay statements in determining the sentence, United States v. Lee , 818 F.2d 1052, 1055 (2d Cir. 1987) ; see United States v. Carmona , 873 F.2d 569, 574 (2d Cir. 1989) ("The sentencing court's discretion is ‘largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ Any information or circumstance shedding light on the defendant's background, history and behavior may properly be factored into the sentencing determination." (citation omitted) (quoting United States v. Tucker , 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) )).
II. SPECIFIC OBJECTIONS
Cooper's specific objections are addressed below, in the order in which they were raised.
A. Testimony of Diones Bowens ("Bowens")
The Court overrules Cooper's objection to the PSR's recitation of Bowens’ testimony. (Dkt. 413 at 1-2). First, the Court presided over the trial in this matter, and therefore is fully familiar with the testimony of the witnesses—whether it be Bowens or any other witness. Thus, to the extent that Cooper is contending that other aspects of Bowens’ testimony should be included in the PSR that are not included, the Court finds this unnecessary because the Court is relying on the testimony as it heard it live in the courtroom during the trial as opposed to any summary of the testimony contained in the PSR.
Second, as set forth in the Court's Decision and Order denying Cooper's Rule 29 motion, the evidence at trial established that Cooper recruited Bowens to purchase guns for Robert L. Williams, Jr. ("Williams") (Dkt. 443 at 8; see Dkt. 317 at 132-33; Dkt. 404 at 11-13, 98). That was one of Cooper's primary roles in this conspiracy—recruiting straw purchasers who then purchased guns for Williams. The fact that Cooper did not tell Bowens which guns to purchase, give Bowens money to buy guns, or Bowens’ characterization as to whether he had an express agreement with Cooper to purchase guns, does not diminish Cooper's culpability for the acts of the conspiracy.
B. Statements of Shane Shumaker ("Shumaker")
The Court overrules Cooper's objection to the PSR's description that Shumaker met Williams through Cooper. (Dkt. 413 at 2-3). Williams testified at trial that Cooper introduced him to Shumaker. (Dkt. 347 at 156). Thus, notwithstanding Cooper's contentions as to Shumaker's statements to law enforcement, there was sworn testimony at trial that—just as he did with a number of other straw purchasers—Cooper was the one who introduced Shumaker to Williams. Furthermore, to the extent Cooper argues that there are inconsistencies between the audio recording of Shumaker's statements to law enforcement and the written report of that interview, the Court was not intending to rely on either in connection with sentencing (unless for some reason Defendant requests otherwise).
C. Testimony of Vicky Hoffstetter ("Hoffstetter")
Cooper's objection to the statement at paragraph 31 of the PSR that Cooper was Hoffstetter's drug dealer (Dkt. 413 at 3-4) is overruled. Hoffstetter plainly testified to this at the trial. (Dkt. 403 at 10). To the extent Cooper focuses on Hoffstetter's failure to positively identify him in the courtroom during the trial, as the Court discussed in its Decision and Order denying Cooper's Rule 29 motion, there were reasonable explanations for this lack of identification and in the Court's view, this did not undermine the credibility of Hoffstetter's testimony (as fully supported by her husband Leonard) that Cooper was her drug dealer. (See Dkt. 443 at 5 n.1).
D. Testimony of Leonard Hoffstetter
Cooper asserts that the PSR leaves out portions of Leonard Hoffstetter's testimony concerning how he was asked by Williams to purchase firearms. (Dkt. 413 at 4-5). The objection is overruled. As with the testimony of all witnesses, the Court is fully aware of the trial testimony, and it is relying on its knowledge of the trial testimony as reflected in the transcripts as opposed to any summary of this testimony contained in a PSR. Moreover, the Court disagrees that the PSR misconstrues Leonard Hoffstetter's testimony. He tied Cooper to the conspiracy—and more specifically, Cooper's roles of recruiting straw purchasers, allowing his Runkle Avenue apartment to be used as a base of operations, and paying co-conspirators in heroin for their services on behalf of the conspiracy. (See Dkt. 396 at 7-10, 12-13). E. Number of Firearms ( U.S.S.G. § 2K2.1(b)(1)(C) )
Cooper objects to the number of firearms that the PSR suggests were reasonably foreseeable to him as part of the conspiracy, contending that the firearms purchased by Bowens, Shumaker, Hoffstetter, and Victoria Orlando ("Orlando") should not be attributed to any conduct on his part. (Dkt. 413 at 5-7). Paragraph 83 of the PSR suggests that the offense level should be increased by six pursuant to U.S.S.G. § 2K2.1(b)(1)(C) because the offense involved more than 25 but less than 99 firearms. The Court agrees with the PSR and Cooper's objection is overruled.
As discussed in further detail in the Court's Decision and Order denying Cooper's Rule 29 motion, the evidence supports a finding that Cooper recruited Orlando and Bowens to become involved in the firearms conspiracy. (Dkt. 443 at 5-8). The evidence at trial established that Orlando personally straw purchased at least 16 firearms as part of the conspiracy (see Dkt. 424 at ¶¶ 42, 48) and Bowens personally straw purchased at least 15 firearms (see id. at ¶¶ 19-20). The trial evidence established that these purchases were reasonably foreseeable to Cooper based on the scope and nature of the conspiracy. As a result, based on just Orlando and Bowens, Cooper qualifies for the six-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(1)(C).
In addition, the evidence at trial established that Hoffstetter purchased at least 10 firearms (id. at ¶ 33), and it also established that she became involved in the conspiracy through Cooper's introduction of her husband, Leonard, to Williams (Dkt. 443 at 5). Like the firearms purchased by Orlando and Bowens, the firearms purchased by Hoffstetter were reasonably foreseeable to Cooper. Combined with the firearms purchased by Orlando and Bowens, this means Cooper is responsible for at least 41 firearms.
The evidence at trial also established that Shumaker purchased at least 16 firearms as part of the conspiracy. (Dkt. 424 at ¶ 25). Shumaker is deceased and did not testify at trial. While Williams testified that Cooper introduced him to Shumaker, and this fits with Cooper's pattern as it pertains to the other straw purchasers, the Court need not resolve the issue of whether Cooper is properly held accountable for the firearms purchased by Shumaker because, as noted above, Cooper exceeds the threshold set forth at U.S.S.G. § 2K2.1(b)(1)(C) with the firearms purchased by Orlando and Bowens alone.
In sum, the scope of the activity to which Cooper agreed—recruiting straw purchasers for Williams so that he could illegally purchase large numbers of firearms and then transport them back to Buffalo for resale—was sufficiently broad to include the relevant, co-conspirator conduct of at least Orlando, Bowens, and Hoffstetter, and their conduct was foreseeable to Cooper. Indeed, Cooper was personally involved with their activity in this regard. Thus, Cooper's objection to U.S.S.G. § 2K2.1(b)(1)(C) is overruled.
F. Stolen Firearm ( U.S.S.G. § 2K2.1(b)(4)(A) )
Cooper objects to the PSR's inclusion of the two-level enhancement pursuant to § 2K2.1(b)(4)(A), which provides that if any firearm was stolen, the offense level should be increased by two. (Dkt. 413 at 7-8). Here, the evidence was clear that a rifle stolen from Tonawanda, New York, was recovered during execution of the search warrant at Cooper's Runkle Avenue apartment on May 30, 2018. However, the evidence is less clear as to whether that firearm was part of or connected to the offense of conviction.
Williams testified that he sold his rifle to Cooper when "[he] first came down," (Dkt. 347 at 70), although no further testimony was elicited from him on this subject. Orlando testified concerning a rifle brought by Williams from Buffalo to Cooper's apartment at Runkle Avenue (Dkt. 317 at 103-05), but she was unable to identify the stolen rifle recovered pursuant to the search warrant (id. at 106). The fact that the stolen rifle originated from Tonawanda (a city outside Buffalo) supports an argument that it was procured from Williams, but the Court does not view this evidence as sufficient to tip the scales in favor of a finding that the stolen rifle recovered during execution of the search warrant on May 30, 2018, was a firearm transferred as part of the conspiracy. The Court acknowledges that this is a close question, but it ultimately resolves the question in favor of Cooper.
The government also argues that the evidence "demonstrates the defendant possessed that firearm [stolen from Tonawanda] to protect his drug-trafficking operation and the other illegal activities occurring at the residence, including the firearms-trafficking operation that was directly tied to his drug dealing." (Dkt. 416 at 4). The Court agrees that Cooper's drug trafficking operation was tied to the firearms conspiracy—he recruited straw buyers from his heroin customers and paid them with heroin. However, there is no evidence in the record that Cooper possessed the stolen rifle in connection with his drug trafficking activity, other than arguably the circumstantial evidence presented by the location of the firearm in the vicinity of the drug trafficking evidence located in his Runkle Avenue apartment. The Court's recollection is that the only eyewitness testimony about Cooper physically possessing a firearm was from Orlando who described Cooper inspecting firearms to decide what to purchase, although she could not recall if he purchased any of the firearms (but two were not returned to the vehicle). (Dkt. 317 at 104-05, 116-19). Thus, a reasonable inference is that Cooper retained one or more of the firearms, which is supported by Williams’ testimony that he sold Cooper his rifle. However, to make the leap that this included the stolen firearm recovered during execution of the search warrant and that it was possessed by Cooper to protect his drug trafficking operation, is not one the Court is able to make on this record. While Cooper's drug customers testified at trial, not one of them testified that Cooper possessed a firearm at any time when he was engaged in drug trafficking activities. On this record, the Court concludes that the government has not met its burden to establish the link between the stolen firearm and the conspiracy. Accordingly, Cooper's objection to application of U.S.S.G. § 2K2.1(b)(4)(A) is sustained.
G. Firearm Trafficking ( U.S.S.G. § 2K2.1(b)(5) )
Cooper objects to the four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5), which states "[i]f the defendant engaged in the trafficking of firearms, increase by 4 levels." Relying on Application Note 13, Cooper argues that he never transported or assisted in the transportation of any firearms, nor did he ever even touch a firearm, and therefore this enhancement does not apply. (Dkt. 413 at 8).
Application Note 13(A) provides in relevant part as follows:
Subsection (b)(5) applies, regardless of whether anything of value was exchanged, if the defendant—(i) transported,
transferred, or otherwise disposed of two or more firearms to another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of firearms to another individual; and (ii) knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual—(I) whose possession or receipt of the firearm would be unlawful; or (II) who intended to use or dispose of the firearm unlawfully.
U.S.S.G. § 2K2.1, Application Note 13(A). The Application Note goes on to define the term "defendant" consistent with U.S.S.G. § 1B1.3 (Relevant Conduct) so as to "limit[ ] the accountability of the defendant to the defendant's own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused." U.S.S.G. § 2K2.1, Application Note 13(B).
As detailed above and in the Decision and Order denying Cooper's Rule 29 motion, he agreed to recruit straw purchasers for Williams to illegally purchase large numbers of firearms and then transport the firearms back to Buffalo for resale. Although Cooper did not personally transport the firearms back to Buffalo, he plainly played an integral role in the success of the operation, regularly supplying Orlando with drugs so that she would drive Williams and the firearms to Buffalo. (See Dkt. 443 at 8). In fact, Orlando testified that it was Cooper who initially recruited her to drive Williams back to Buffalo with the firearms. (Dkt. 317 at 60).
Accordingly, Cooper's objection to U.S.S.G. § 2K2.1(b)(5) is overruled.
H. Another Felony Offense ( U.S.S.G. § 2K2.1(b)(6)(B) )
Cooper objects to the four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B), which provides that an offense level should be increased by four if the defendant:
used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.
U.S.S.G. § 2K2.1(b)(6)(B). The government largely makes the same argument in support of this enhancement as it does in connection with U.S.S.G. § 2K2.1(b)(4)(A) —namely that the firearm(s) possessed by Cooper (including the stolen firearm) were tied to his drug trafficking activity. However, while Cooper's drug trafficking activity was plainly tied to the conspiracy, the Court concludes that the government has not established that he possessed firearms in furtherance of his drug trafficking. There simply is not sufficient evidence in the record to support that conclusion. Stated another way, there is evidence in the record that Cooper was a drug trafficker, and there is some evidence in the record that he possessed firearms (including the stolen firearm recovered during execution of the search warrant)—but there is not sufficient evidence to conclude that he possessed firearms to further his drug trafficking activities.
III. CONCLUSION
For the foregoing reasons, the Court sustains Cooper's objections to application of U.S.S.G. §§ 2K2.1(b)(4)(A) and 2K2.1(b)(6)(B), but the objections are otherwise overruled. The Court will direct the United States Probation Office to prepare a revised PSR consistent with this Decision and Order.
SO ORDERED.