Opinion
21-718
03-15-2022
United States of America, Appellee, v. Jonathan Mayzick, AKA J-Reck, Defendant-Appellant. [*]
For Appellant: Joseph W. Ryan, Jr., Melville Law Center, Melville, NY. For Appellee: Charles N. Rose (Amy Busa and Michael Maffei, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.
UNPUBLISHED OPINION
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 15th day of March, two thousand twenty-two.
Appeal from the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, Judge).
For Appellant: Joseph W. Ryan, Jr., Melville Law Center, Melville, NY.
For Appellee: Charles N. Rose (Amy Busa and Michael Maffei, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.
PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the district court's judgment is AFFIRMED.
Defendant Jonathan Mayzick appeals from the sentence and judgment following his guilty plea to one count of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) ("VICAR murder conspiracy"). The conviction stems from Mayzick's prominent role in a gang war on the streets of Hempstead, New York. Judge Feuerstein sentenced Mayzick to the statutory maximum of 120 months, to be served consecutively to a prior 162-month sentence for conspiracy to distribute cocaine base, imposed in 2016 by Judge Denis Hurley.
Mayzick contends that his sentence was both procedurally and substantively unreasonable. We review both the procedural and substantive reasonableness of a sentence under a "deferential abuse-of-discretion standard." United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.
Mayzick raises two issues that sound in procedural reasonableness. To prevail on either argument, he must establish that in imposing a 120-month consecutive sentence, the district court committed a "significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51.
First, Mayzick contends that, under U.S. Sentencing Guideline § 5G1.3(b)(2), the district court was required to impose a concurrent rather than a consecutive sentence. In support of that contention, he cites language from subsection (b)(2), which provides that if "a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction[, ] . . . the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment." U.S. Sent'g Guidelines Manual § 5G1.3(b)(2) (U.S. Sent'g Comm'n 2021). But Mayzick cannot satisfy the key requirement of that subsection, which is triggered only when the prior sentence was for an offense involving "relevant conduct to the instant offense of conviction," id. - a requirement further underlined by the Application Notes' clarification that "[s]ubsection (b) applies in cases in which all of the prior offense is relevant conduct to the instant offense," id. § 5G1.3 cmt. n.2(A) (emphasis added).
Here, the presentence report ("PSR") expressly found that Mayzick's prior drug trafficking offense was not "relevant conduct" to the VICAR murder conspiracy conviction now at issue. In adopting the full PSR without change, the district court endorsed the PSR's finding on relevant conduct as its own. See United States v. Ahders, 622 F.3d 115, 119 (2d Cir. 2010) (noting that a district court "may" discharge its obligation "to rule on controverted matters that will affect sentencing" simply "by adopting the recommendations of the presentence report"). That finding may be set aside only if clearly erroneous, see United States v. Martin, 157 F.3d 46, 50 (2d Cir. 1998) ("We review the district court's factual determination of relevant conduct for clear error."), which even Mayzick does not contend was the case here. Thus, the district court's finding that Mayzick's prior drug trafficking offense was not "relevant conduct" is controlling and forecloses Mayzick's attempt to avail himself of Guideline § 5G1.3(b)(2).
In any event, a review of the Guidelines clearly reveals that the governing provision of Guideline § 5G1.3 is not subsection (b) but rather subsection (d), which provides that when a defendant is serving an undischarged term of imprisonment and the other subsections of § 5G1.3 do not apply, the district court has discretion to impose a sentence to run concurrently, partially concurrently, or consecutively. U.S. Sent'g Guidelines Manual § 5G1.3(d). By imposing a consecutive sentence, the district court ensured that Mayzick would be punished separately for his separate crime, a decision that was clearly within its discretion under subsection (d).
Second, Mayzick argues that the district court procedurally erred by failing to explain its reasons for imposing a consecutive sentence. To that end, he points to the fact that the district court never expressly rejected his argument that a concurrent sentence was mandatory. However, "[w]e have declined to 'insist that the district court address every argument the defendant has made.'" United States v. Rosa, 957 F.3d 113, 119 (2d Cir. 2020) (quoting United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007)). While the sentencing judge did not expressly reject Mayzick's argument that a concurrent sentence was required under Guideline § 5G1.3(b), she did indicate in open court her reason for imposing a consecutive sentence when she announced her agreement with the PSR's recommendation for a consecutive sentence. When, as in this case, "a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation." Rita v. United States, 551 U.S. 338, 356 (2007). Therefore, we find neither of Mayzick's procedural-reasonableness arguments to be persuasive.
As for substantive reasonableness, Mayzick challenges his sentence as disproportionate in light of what he maintains are his efforts at rehabilitation and his relatively low risk of recidivism. To be substantively unreasonable, a sentence must be so "shockingly high, shockingly low, or otherwise unsupportable as a matter of law" that it would "damage the administration of justice." United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Yet Mayzick's sentence, far from being "shockingly high," is actually well below what the advisory Guidelines range would have been absent the statute's ten-year maximum sentence. On this record, it is "difficult to find that a below-Guidelines sentence is unreasonable." United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011). We therefore conclude that the district court did not impose a substantively unreasonable sentence.
Finally, Mayzick gestures at two additional arguments based on alleged prosecutorial misconduct. Neither is availing. First, Mayzick asserts for the first time on appeal that the government engaged in improper judge-shopping to prevent the VICAR murder conspiracy case from coming before Judge Hurley - the judge who sentenced him in the drug conspiracy case. Since Mayzick failed to raise this argument below, we review it for plain error. United States v. Olano, 507 U.S. 725, 731-32 (1993); see also Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). Under Rule 52(b), this Court has discretion to correct the forfeited error if it "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
We find Mayzick's argument to be unpersuasive. In essence, he asserts not that the government channeled the case to a judge favorable to the government, but that it failed to channel the case to a judge inclined to be favorable to him, with no concrete showing that such failure resulted in prejudice. On this basis, we do not identify a plain error that affected Mayzick's substantial rights. Moreover, the Eastern District of New York's Guidelines for the Division of Business Among District Judges, upon which Mayzick relies for this assertion, make explicit that they "shall not be deemed to vest any rights in litigants" or provide a cause of action. E.D.N.Y., Loc. R., Div. Bus., Introduction (2021).
Second, Mayzick asserts that the government acted in bad faith by failing to warn him, before he pleaded guilty to the drug charge, that it would later charge him with racketeering offenses predicated in part on that charge. However, Mayzick confined this argument in his opening brief to a single cursory paragraph and mentioned it in his reply brief only as "background." "'Merely mentioning' or '[s]imply stating' an issue in an appellate brief is insufficient to preserve it for our review: an appellant must 'advance an argument,' and we generally will decline to consider issues that are 'not sufficiently argued.'" Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012) (quoting Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009)). Because this purported basis for reversal is not sufficiently argued, it is waived.
Moreover, the district court expressly found that the government did not act in bad faith here. This Court reviews the district court's underlying findings of fact for clear error. United States v. Richardson, 521 F.3d 149, 156 (2d Cir. 2008). Since the district court's finding was not clearly erroneous, Mayzick's argument would fail even if it were not waived.
We have considered Mayzick's remaining arguments and find them to be meritless. Accordingly, we AFFIRM the judgment of the district court.
[*] The Clerk of Court is respectfully directed to amend the caption as reflected above.