Opinion
No. 08-2600-cr.
July 21, 2009.
Appeal from the United States District Court for the Southern District of New York (Daniels, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Appearing for Appellant: Gail Jacobs, Great Neck, NY.
Appearing for Appellee: Kenneth Alan Polite, Jr., Assistant United States Attorney, of counsel to Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, NY (Katherine Polk Failla, on the brief).
Present: JOSEPH M. McLAUGHLIN, ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges.
Marvin Anderson appeals from a judgment of conviction for possessing a firearm after having been convicted of a crime punishable by more than a year of incarceration, see 18 U.S.C. § 922(g)(1), and the resulting sentence of forty-eight months' imprisonment. We assume the parties' familiarity with the facts, proceedings below, and specification of issues on appeal.
Anderson first contends that the district court should have suppressed the gun seized from his person when he was arrested. He argues that the testimony of two detectives who claimed that they saw the taped handle of the gun protruding from Anderson's pocket before confronting him and seizing the gun should not have been credited. Because Anderson quarrels only with the district court's findings of fact, our review is for clear error. See United States v. Waker, 534 F.3d 168, 171 (2d Cir. 2008) (per curiam). Credibility determinations "are the province of the district court."United States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990). The district court's determination to credit the testimony of the two officers was within its particular province and was not clearly erroneous. Thus, there is no basis for setting aside the district court's suppression ruling.
Anderson also contends that in sentencing him, the district court wrongly set his offense level at 20, the level applicable to a firearms possession offense pursuant to United States Sentencing Guideline § 2K2.1(a)(4) where the defendant has previously been convicted of a felony "crime of violence." Anderson's relevant prior conviction was for robbery in the third degree under New York Penal Law § 160.05. Section 4B1.2(a) of the Guidelines defines a crime of violence, in pertinent part, as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another." Application note 1 to this guideline specifically states that "robbery" is included in the definition of "crime of violence."Id. cmt. n. 1. In addition, when we determine "whether a given crime fits within the definition of the relevant predicate offense [recited in Section 4B1.2(a)], we take a `categorical' approach; that is, we generally look only to the statutory definition of the prior offense of conviction."United States v. Brown, 514 F.3d 256, 265 (2d Cir. 2008) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). Robbery in the third degree is a class D felony, authorizing a sentence of imprisonment that may exceed a year.See N.Y. Penal Law §§ 60.01(3)(a), 70.00(2)(d), 160.05. Further, Section 160.05 of the New York Penal Law defines robbery, third degree, as "forcibly steal[ing] property." Finally, the Penal Law generally defines "robbery," as requiring that the perpetrator "use[] or threaten[] the immediate use of physical force upon another person." N.Y. Penal Law § 160.00. Therefore, the district court correctly held that Anderson had been convicted of a crime of violence.See United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (holding that "defendant's prior third degree robbery conviction [under New York law] fits comfortably within section 4B1.2, and constitutes a `crime of violence' for purposes of the `Career Offender' provision of the Guidelines'").
Anderson's next challenge is to the district court's denial of credit for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. There was no error in this denial. Although Anderson admitted at his suppression hearing to possessing a gun, he made no such concession at trial and thus put the government to the burden of proving each element of the charged offense. Credit for acceptance of responsibility was therefore correctly denied. See id. cmt. n. 2.
Contrary to Anderson's contention, the district court adequately stated the reasons for imposing its sentence by indicating that it had considered all the factors listed in 18 U.S.C. § 3553(a) and explaining that given Anderson's offense and his criminal history, a guidelines sentence was a reasonable sentence. See Rita v. United States, 551 U.S. 338, 356-59 (2007). Finally, we may not set aside Anderson's sentence as substantively unreasonable because his sentence, which was within the applicable Guidelines range, was well "within the range of permissible decisions."United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted), cert. denied, 129 S. Ct. 2735 (2009).
We, therefore, affirm the judgment of the district court.