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United States v. Smith

United States Court of Appeals, Second Circuit

March 8, 2018

United States of America, Appellee,
v.
Edward Smith, Defendant-Appellant.

          Argued: September 28, 2016

         On Appeal from the United States District Court for the Southern District of New York

         This case, in which oral argument was heard in September 2016 but which was held in abeyance pending decision first in United States v. Jones, No. 15-1518 __, F.3d __, slip op. (2d Cir. Oct. 5, 2017), then in United States v. Morales, No. 14-3661 (2d Cir. Jan. 22, 2018), presents the following questions: (1) whether the evidence at trial was sufficient to prove possession of crack cocaine with intent to distribute; and (2) whether the New York offense of robbery in the second degree constitutes a "crime of violence" as that term was defined in the United States Sentencing Guidelines before August 1, 2016. The second question is one of first impression. We answer both questions in the affirmative and therefore AFFIRM the judgment of October 7, 2015 of the United States District Court for the Southern District of New York (Katherine Polk Failla, Judge).

          Daniel M. Tracer, Assistant United States Attorney (Thomas McKay and Karl Metzner, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

          Matthew B. Larsen, Federal Defenders of New York Appeals Bureau, New York, NY, for Defendant-Appellant.

          Before Winter and Cabranes, Circuit Judges, and Restani, Judge. [*]

          José A. Cabranes, Circuit Judge

         This case, in which oral argument was heard in September 2016 but which was held in abeyance pending decision first in United States v. Jones, No. 15-1518, F.3d, slip op. (2d Cir. Oct. 5, 2017), then in United States v. Morales, No. 14-3661 (2d Cir. Jan. 22, 2018), presents the following questions: (1) whether the evidence at trial was sufficient to prove possession of crack cocaine with intent to distribute; and (2) whether the New York offense of robbery in the second degree constitutes a "crime of violence" as that term was defined in the United States Sentencing Guidelines ("Guidelines") before August 1, 2016. The second question is one of first impression. We answer both questions in the affirmative and therefore AFFIRM the judgment of October 7, 2015 of the United States District Court for the Southern District of New York (Katherine Polk Failla, Judge).

         I. BACKGROUND

         Defendant-Appellant Edward Smith ("Smith") appeals from a District Court judgment entered on October 7, 2015 by Judge Failla. A jury convicted Smith of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). The District Court imposed a term of one hundred twenty months' imprisonment for each of the two charges, the terms to run concurrently.

         Smith argues: (a) that the evidence introduced at trial was insufficient to prove possession of crack cocaine with intent to distribute; and (b) that the District Court miscalculated his base offense level under the Guidelines because second-degree robbery, in New York law, is not a "crime of violence" as the term is defined in the applicable version of the Guidelines.

         II. DISCUSSION

         A. Sufficiency of the Evidence

         Smith argues that the evidence presented at trial was insufficient to prove possession of crack cocaine with intent to distribute. The officers' testimony that they recovered bags of crack cocaine from him at the police station could not have been true, he argues, because he "was bleeding from his hands on the night in question, " whereas "the baggies allegedly recovered from [him] were bloodless." Br. Appellant 15-16. The bags ...


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