Submitted: December 7, 2015.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of New York. On appeal from a July 1, 2014 judgment of the United States District Court for the Western District of New York (Frank P. Geraci, Jr., Judge) sentencing defendant-appellant Liddon Young principally to a term of imprisonment of fifteen years. We AFFIRM the sentence insofar as it rests on the District Court's rejection of Young's arguments for a downward departure and a variance, but insofar as the sentence rests on the District Court's application of sentencing enhancements under U.S.S.G. § 2K2.1(b)(6)(B) and U.S.S.G. § 3C1.1 and its denial of a sentencing adjustment under U.S.S.G. § 3E1.1, we REMAND for resentencing consistent with this opinion.
David C. Pilato, LaDuca Law Firm, Rochester, NY, for Defendant-Appellant.
Stephan J. Baczynski and Joseph J. Karaszewski, Assistant United States Attorneys, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.
Before: CABRANES, PARKER, and LOHIER, Circuit Judges. Judge LOHIER concurs in part and concurs in the judgment in part in a separate opinion.
José A. Cabranes, Circuit Judge.
The principal question presented is whether, in the circumstances of this case, the imposition of sentencing enhancements under both U.S.S.G. § 2K2.1(b)(5) and U.S.S.G. § 2K2.1(b)(6)(B) based on the same underlying conduct--transferring firearms with reason to believe they would be used in felony offenses--constituted " double-counting" clearly prohibited by the United States Sentencing Commission (the " Sentencing Commission" ).
Defendant-appellant Liddon Young contends that imposing both sentencing enhancements did constitute such prohibited double-counting, and on that basis appeals a July 1, 2014 judgment of the United States District Court for the Western District of New York (Frank P. Geraci, Jr., Judge ) sentencing him principally to a term of imprisonment of fifteen years. Young further argues that the District Court erred by applying a sentencing enhancement for obstruction of justice under U.S.S.G. § 3C1.1, refusing to apply an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1, failing to consider his arguments in support of a downward departure and a variance, and imposing a substantively unreasonable sentence.
We find no error in the District Court's decision not to expressly discuss and reject Young's arguments for a downward departure and a variance. We conclude, however, that the District Court's application of the sentencing adjustments was in error. Specifically, on the facts presented here, the District Court's imposition of a sentencing enhancement under § 2K2.1(b)(6)(B) constituted " double-counting" clearly prohibited by the Sentencing Commission, and its rulings on adjustments under § 3C1.1 and § 3E1.1 were not supported by the requisite factual findings. Thus, without reaching Young's substantive-unreasonableness argument, we AFFIRM his sentence insofar as it rests on the District Court's rejection of his arguments for a downward departure and a variance; insofar as the sentence rests on the District Court's application of sentencing enhancements under U.S.S.G. § 2K2.1(b)(6)(B) and U.S.S.G. § 3C1.1 and its denial of an adjustment under U.S.S.G. § 3E1.1, we REMAND for resentencing consistent with this opinion.
On May 14, 2013, Young was indicted for his role in a scheme that involved the unlawful distribution of firearms. Without the benefit of a plea agreement, he entered a plea of guilty to three firearms violations.
Prior to sentencing, a probation officer interviewed Young to assist in preparing a presentence report. In discussing his offense conduct, Young told the probation officer that he never sold guns to known drug dealers and had no reason to think that the guns he distributed would be used in connection with felony offenses. He also told the probation officer that he never dealt in firearms before meeting an individual named Paul Davis in 2012. The probation officer concluded that Young was likely being untruthful on both points.
The District Court held a hearing to determine whether Young had lied to the probation officer about his conduct. At the hearing, Davis testified that he met Young in 2012, at which time Young was already engaged in the illegal sale of firearms. According to Davis, he and Young developed a business relationship. The two would meet in Atlanta, where Young would sell guns to Davis, eight to ten at a time. Davis would bring the guns to Rochester to sell them. Davis made up to four such trips. Between Davis's trips and direct sales to other customers, Young sent between twenty-five and fifty guns--including AK-47s, MAC-10s, and TEC-9s--to Rochester.
According to Davis, he and Young discussed their customers early in their relationship. When Davis made his first trip northward, Young inquired about who might purchase the guns in Rochester. Davis told Young he planned to sell to two " cocaine and marijuana dealers." Young told Davis to be careful.
Young also spoke with Davis about Young's preexisting customers. He disclosed that he was selling firearms to his cousin, a Rochester cocaine dealer named " Reggie" or " Reginald." At one point, Young gave Davis three firearms to deliver to this cousin.
An individual named Reggie Bullock--the drug-dealing cousin " Reggie" known to Davis--also testified. He told the Court, contrary to Davis's testimony, that Young had never provided him with a gun. But he also testified that he was a cocaine dealer and that he had once seen Young sell three guns, including a TEC-9, to a person Young knew to be Bullock's primary source of drugs. Young also took the stand, testifying that he never sold to anyone he knew to be a drug dealer and had not engaged in trafficking prior to meeting Davis.
Following the hearing, Judge Geraci articulated factual findings on the record. He recognized that all three witnesses had reason to fabricate testimony. But he credited Davis's statement that Young had provided him with guns to deliver to Young's cousin Reggie, a drug dealer. He also credited Davis's testimony that Young had been engaged in firearms dealing before the two met. Judge Geraci declined to credit Young's testimony that he did not know Reggie Bullock to be in the drug business. Based on the testimony described above and his credibility determinations, Judge Geraci concluded that Young had had reason to believe that the weapons he transferred would be used or possessed in connection with other felony offenses. He also concluded that Young had lied to the probation officer who prepared the presentence report " regarding his knowledge, intent or reason to believe that the weapons he sold would be used in connection with another felony offense" and in telling the officer that he had not illegally sold firearms prior to meeting Davis. Judge Geraci accordingly imposed sentencing enhancements under U.S.S.G. § § 2K2.1(b)(6)(B)
(for transferring a firearm with reason to believe it would be used in connection with another felony) and 3C1.1 (for obstruction of justice). He also ruled that, in light of his application of the obstruction enhancement, an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 was unavailable.
These rulings, combined with Young's base offense level of 22, two enhancements Young does not challenge on appeal,` and a criminal history category of III, initially yielded a United States Sentencing Guidelines (" Guidelines" ) calculation of 292-365 months. The bottom of this range, however, exceeded the 20-year statutory maximum; thus, Young's Guidelines sentence was 20 years. See United States v. Dorvee, 616 F.3d 174, 180-81 (2d Cir. 2010).
Prior to sentencing, Young requested that the District Court (1) depart downward because his criminal-history category significantly overrepresented the seriousness of his criminal past, and (2) vary from the Guidelines range based on such factors as his difficult upbringing, his close relationship with his family, and the need to avoid unwarranted disparities in sentencing. The Court did not explicitly address
the arguments made in connection with these requests and sentenced Young principally to a term of fifteen years' imprisonment.
On appeal, Young argues that the District Court erred by (1) imposing a sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (the " other-felony-offense enhancement" ); (2) imposing a sentencing enhancement under U.S.S.G. § 3C1.1 (the " obstruction enhancement" ); (3) declining to apply a sentencing adjustment under U.S.S.G. § 3E1.1 (the " acceptance-of-responsibility adjustment" ); (4) failing to explicitly address Young's arguments in support of a downward departure and a downward variance; and (5) imposing a substantively unreasonable sentence.
There was no error in the District Court's decision not to expressly discuss and reject Young's arguments for a downward departure and a variance. Nothing in the record suggests that Judge Geraci misunderstood his authority to depart downward, and in imposing the sentence he plainly considered the relevant factors under 18 U.S.C. § 3553(a). We conclude, however, that the District Court erred in imposing the other-felony-offense and obstruction enhancements and in declining to apply the acceptance-of-responsibility adjustment. On this basis we vacate and remand for resentencing. In light of this disposition, we need not and do not reach Young's argument that his sentence is substantively unreasonable.
We review sentences " under a deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). " We must first ensure that the district court committed no 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." United States v. Tutty, 612 F.3d 128, 130-31 (2d Cir. 2010) (internal quotation marks omitted). " Although a district court . . . is not required to impose the now-advisory Guidelines-recommended sentence, the ...