1 15-3486-cr United States v. Sica UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 24 th day of January, two thousand seventeen. PRESENT: REENA RAGGI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 15-3486-cr DENNIS SICA, Defendant-Appellant , ARTHUR DESIERVI, Defendant.

-------------------------------------- -------------------------------- APPEARING FOR APPELLEE: SCOTT A. HARTMAN, Assi stant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. APPEARING FOR APPELLANT: THEODORE S. GREEN, Green & Willstatter, White Plains, New York.2 Appeal from a judgment of the United St ates District Court for the Southern District of New York (Cathy Seibel, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on October 26, 2015 is AFFIRMED. Defendant Dennis Sica was conv icted after a guilty plea of conspiracy to traffic in heroin and fentanyl, causing the deaths of three people, see 21 U.S.C. §§ 841(b)(1)(B), 846, and sentenced principa lly to 420 months’ imprisonm ent. On appeal, Sica challenges the factual basis for his guilty plea and the procedural and substantive reasonableness of his sentence. We assume the parties’ familiarity with the facts and record of prior proceedings, which we refere nce only as necessary to explain our decision to affirm. 1. Factual Basis for the Guilty Plea Sica argues that his guilty plea was insuffici ent to establish that (a) his narcotics sales caused the victims’ deaths and (b ) such deaths were foreseeable. See Fed. R. Crim. P. 11(b)(3). We normally review a defendant’s challenge to his plea’s factual basis for abuse of discretion, subject to harmless error, see United States v. Culbertson , 670 F.3d 183, 189, 192 (2d Cir. 2012), but we review only for plain error where, as here, the defendant failed to cha llenge the validity of his plea in the district court, see United States v. Rodriguez , 725 F.3d 271, 276 (2d Cir. 2013) (citing United States v. Vonn , 535 U.S. 55, 59 (2002)). Sica thus bears the burden of showing (1) an error (2) that is clear and obvious, (3) affecting “substantial rights,” and (4) seriously impugning the “fairness, integrity, or public reputation of judicial proceedings.” United States v. Wagner-Dano ,3 679 F.3d 83, 94 (2d Cir. 2012) (internal qu otation marks omitted). In the Rule 11 context, substantial rights are affected only if there is a “reasonabl e probability that, but for the error, [the defendant] would not have entered the plea.” United States v. Rodriguez , 725 F.3d at 276. We identify no error here, plain or otherwise. a. Causation As to causation, Sica asserts that his gu ilty plea established only that his drug trafficking was a but-for cause of the victims’ deaths, not the sole cause. The argument is defeated by Burrage v. United States , 134 S. Ct. 881 (2014), wherein the Supreme Court clearly and repeatedly stated that th e causation element for § 841(b) offenses resulting in death requires only th at the defendant’s conduct be “ a but-for cause of the death,” id. at 892 (emphasis added); see id. at 885, 888, 889, 891. 1 In urging otherwise, Sica relies on a decision by a dist rict court outside this circuit that, in a Title VII case, construed § 841(b)(1)(C) to require a showing of sole causation. See Hendon v. Kamtek, Inc. , 117 F. Supp. 3d 1325, 1 331–32 (N.D. Ala. 2015). We are not persuaded. In explaining the causation requirement, Burrage distinguished between instances in which the defendant’s narcotics traffickin g “merely played a nonessential contributing role” in the death, which does not suffice to establish causa tion, and instances in which the “incremental effect” of the drugs was the “straw that broke the camel’s back,” which does suffice. Burrage v. United States , 134 S. Ct. at 888. Th e record fixes this case

1 Burrage specifically addressed the causation re quirement of the penalty enhancement in 21 U.S.C. § 841(b)(1)(C), but neither Sica nor the government argues that the causation requirement of § 841( b)(1)(B) differs from that app licable to § 841(b)(1)(C). See generally Law v. Siegel , 134 S. Ct. 1188, 1195 (20 14) (describing interpretive principle that same words in statut e presumptively have same meaning).4 firmly within the latter category, as toxi cology reports and witness accounts provided a sufficient basis to conclude that the narcotics sold by Sica we re essential to the victims’ deaths, and therefore a but-for cause. Indeed , Sica’s counsel appears to have conceded as much at the plea allocution: We believe that the government will adduce on its direct case legally sufficient evidence that a jury could conclude th at the deaths of those persons was a but/for— the death would not have occurred but/for the use of the drugs that were distribut ed as part of the conspiracy

. App’x 168 (emphasis added). Burrage supports the penalty enhancement for § 841(b)(1) crimes in such circumstances. We therefore identify no abuse of discretion—much less plain error—in the district court’s conclusion that Sica’s guilty plea provided a sufficien t factual basis for the element of causation. b. Foreseeability Sica further argues—but also did not cha llenge at his plea allocution—the absence of a factual basis to conclude that the victim s’ deaths were foreseeable to him. This argument fails because he cites no controllin g authority for a fore seeability requirement, and an error is not “plain” when the urged rule is not “clearly esta blished by the time of the appeal.” United States v. Irving , 554 F.3d 64, 78 (2d Ci r. 2009). Indeed, Sica’s foreseeability argument has been rejected by every court of appeals to have considered the question. See United States v. Burkholder , 816 F.3d 607, 616 (10th Cir. 2016); United States v. Webb , 655 F.3d 1238, 1257 (11th Cir. 2011); United States v. De La Cruz , 514 F.3d 121, 137 (1st Cir. 2008); United States v. Hatfield , 591 F.3d 945, 948,5 949 (7th Cir. 2010); United States v. Houston , 406 F.3d 1121, 1124–25 (9th Cir. 2005); United States v. Carbajal , 290 F.3d 277, 284 (5th Cir. 2002); United States v. McIntosh , 236 F.3d 968, 972 (8th Cir. 2001); United States v. Robinson , 167 F.3d 824, 832 (3d Cir. 1999); United States v. Patterson , 38 F.3d 139, 145 (4th Cir. 1994). We need not ourselves decide the need to establish foreseeability because, even if we were to answer that question in favor of Sica, we would identify no error here, where foreseeability was supported by facts in the record, specifica lly (1) Sica’s experience with potent narcotics, particularly after his prio r narcotics convictions; and (2) his continued sale of those narcotics even after learning that they had cau sed a young woman’s illness and, shortly thereafter, a young man’s death. 2. Procedural Reasonableness Sica also argues that procedural erro r in the calculation of his Sentencing Guidelines range rendered his senten ce procedurally unreasonable. See United States v.
Cavera , 550 F.3d 180, 19 0 (2d Cir. 2008) ( en banc ); accord United States v. Broxmeyer , 699 F.3d 265, 278 (2d Cir. 2012). The defe rential abuse-of-discretion standard we apply to such a challenge, see United States v. Young , 811 F.3d 592, 598 (2d Cir. 2016), “incorporates de novo review of questions of law (including interpretation of the Guidelines) and clear-error review of questions of fact,” United States v. Legros , 529 F.3d 470, 474 (2d Cir. 2008).

a. Prior “Similar Offense” under § 2D1.1(a)(1) Sica first argues that U.S.S.G. § 2D1.1(a )(1)’s use of the phrase “conviction[] for a similar offense” references not simply prior narcotics convictions—which Sica6 unquestionably had—but prior narcotics convictions that similarly resulted in death —which he did not. In support, he c ites a 1989 Guidelines amendment deleting an application note that defined “similar drug o ffense” to mean any “prior conviction as described in 21 U.S.C. § 841(b) or 962(b).” See U.S.S.G. App. C, amend. 123, at 59 (Nov. 1, 1989). Sica argues that removal of the note suggests that the phrase is intended to apply more narrowly than to such narco tics convictions. Sica, however, provides no affirmative support for such a conclusion, which he acknowle dges has been rejected by the two courts of appeals to ha ve considered the question. See United States v. Johnson , 706 F.3d 728, 730–32 (6th Cir. 2013); see also United States v. Westry , 524 F.3d 1198, 1220 n.12 (11th Cir. 2008). In fact, Sica’s argument is defeated by the very amendment referenced. The deleted note appeared at odds with the re levant statutory text, which imposed an enhanced sentence not only when a defendant had a prior § 841(b) or § 962(b) conviction, but also when he had any prior felony narcotics conviction under federal, state, or foreign law, see 21 U.S.C. § 841(b)(1 )(B) (1988). Accordingly, the Sentencing Commission explained that its purpose in removing the note was to clarify that § 2D1.1(a)(1) applied “only in the case of a conviction under the circumstances specified in the statutes cited [by the Gu ideline],” U.S.S.G. App. C, amend. 123, at 59, which were then, as now, sections 841(b)(1)(A)–(C), see U.S.S.G. § 2D1.1(a)(1) (1989); U.S.S.G. § 2D1.1(a)(1) (2015). Each statutory provis ion, in turn, provid es for an enhanced sentence when the defendant has a prior felo ny narcotics conviction under any state, federal, or foreign law, see § 841(b) (1988), with the current provision differing only in7 exporting that list of qualifying convictions to an external provision, 21 U.S.C. § 802, which is included by reference usi ng the term “felony drug offense.” Sica’s suggestion that the phrase “prior . . . similar offense” in § 2D1.1(a)(1) must refer solely to convictions for prior narcotics offenses resulting in death thus finds no support in either the Guidelines amendmen t or the sentencing scheme provided by § 841(b), which has consistently define d the qualifying prior offense as any felony narcotics conviction arising under state, federal, or foreign law. See, e.g. , 21 U.S.C. §§ 841(b) (1988), 841(b) (2016); § 802 (2016 ). There is no serious question that the prior-conviction language in Guideline § 2D1.1(a) works in tandem with that in § 841(b).
See § 2D1.1 cmt. n.27 (2015) (s tating that base offense leve ls in guideline are “either provided directly by [statute] or are propor tional to [] levels es tablished” therein); see also United States v. Johnson , 706 F.3d at 731 (stating that § 2D1.1 guideline and § 841(b) statute designed to “mirror one another in several respects”); United States v. Greenough , 669 F.3d 567, 575 (5th Cir. 2012) (inter preting § 2D1.1 in li ght of § 841(b)). Accordingly, this argument that § 2D1.1(a )(1) does not apply in Sica’s case fails on the merits. b. Establishment of Prior Similar Offense Sica further argues that § 2D1.1(a)(1) requ ires that his “prior convictions for a similar offense” be “establish[ed by]” the “offe nse of conviction,” which is not the case here, as he did not plead to the substan tive § 841(b)(1)(B) prior-felony death-results crime, which would have mandated a life sent ence. The government agrees that Sica did not plead guilty to this aggravated offense, but it argues that § 2D1.1(a)(1)8 nonetheless applies because evidence of Si ca’s prior convictions was adduced at sentencing. The decisions of our sister circ uits do not speak clearly as to whether the Guidelines phrase “offense of conviction establishes” limits the application of § 2D1.1(a)(1) to cases in which a prior fe lony drug conviction an d resulting death are elements of the crime of conviction. Compare, e.g. , United States v. Lawler , 818 F.3d 281, 283–84 & 284 n.3 (7th Ci r. 2016) (stating that § 2D1.1(a )(2) looks only to what is “establishe[d]” by “offense of conviction,” an d that § 2D1.1(a)(1) contains the same language); United States v. Greenough , 669 F.3d at 573–76 [5th Cir.] (holding § 2D1.1(a)(2) inapplicable if resulting-death conduct not charged, but affirming on plain error grounds); United States v. Rebmann , 321 F.3d at 543–44 (6th Cir. 2003) (stating that § 2D1.1(a)(2) requires ch arging death-results element); United States v. Pressler , 256 F.3d 144, 158 n.7 (3d Cir. 2001) (dictu m to same effect), with United States v. Johnson , 706 F.3d at 729, 732 [6th Cir.] (holding § 2D1.1( a)(1) applicable even if government does not charge defendant with pr ior felony narcotics conviction), and United States v. Shah , 453 F.3d 520, 524 (D.C. Cir. 2006) (holding not plain error to apply § 2D.1.1(a)(2) without charging death-resu lts element when plea agreem ent and government proffer stated that defendant “was a ccountable for the death”). We need not decide the issu e here because Sica did not raise it below and fails to demonstrate plain error on appeal. No c ontrolling precedent by the Supreme Court or this court clearly establishes § 2D1.1(a)(1 )’s inapplicability to a defendant who is allowed to plead to a narco tics offense without acknowledgi ng the prior conviction that would subject him to a life sentence, wher e, as here, such prior convictions are9 convincingly established at sentencing. See United States v. Irving , 554 F.3d at 78 (error not “plain” when applicab le rule not clearly established by time of appeal). In the absence of such authority, we cannot identify error so “e gregious and obvious” as to make the government and district court derelict in permitting it. See United States v. Whab , 355 F.3d 155, 158 (2 d Cir. 2004) (internal quotation marks omitted); United States
v. Marcus , 560 U.S. 258, 262 (2010) (stating plain error standard). 3. Substantive Reasonableness Sica challenges the substantive reasonablene ss of his sentence, arguing that he was only a street-level drug dealer selling narcotic s largely to other addicts. Further, he maintains that statutory provisions and impl ementing Guidelines fo r narcotics offenses resulting in death were enacted in a “hasty manner” and based on “media-led opinion[s] of dubious validity.” Appellant’s Br. 37. We will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v. Cavera , 550 F.3d at 189 (emphasis and intern al quotation marks omitted); see also United States
v. Messina , 806 F.3d 55, 66 (2d Cir. 2015) (discussing “broad range of permissible decisions available to the district court”). That is not this case. The district court recognized that Sica “[wa ]s not a high-level drug dealer,” App’x 210, and “was an addict himself,” id. at 215. At the same time, it noted (1) Sica’s continued eagerness to sell potent narco tics knowing they could—and had—caused death, (2) his initial lack of remorse, and (3) the tragic consequences hi s conduct had wreaked on the victims and their families. Such evidence a ggravated relevant § 3553(a)10 factors, notably the defendant’s history and characteristics, the need for his sentence to reflect the seriousness of the offense, and the need to afford adequa te deterrence and to protect the public. On this record, the dist rict court did not exceed its discretion in concluding that a 420-month term of impr isonment, which was be low the Guidelines range of life imprisonment calculated pursuant to § 2D1.1(a)(1), was within the range of “permissible decisions” available. United States v. Cavera , 550 F.3d at 189. Indeed, even if the district court had committed procedural error in applying § 2D1.1(a)(1) rather than § 2D1.1(a)(2) to Sica’s Guidelines calculation, no different conclusion as to reasonableness would obtain because the court clearly stated that it “would have imposed the same sentence we re the range 360 to life” under the latter guideline. App’x 175, 218. See United States v. Jass , 569 F.3d 47, 68 (2d Cir. 2009); accord United States v. Kent , 821 F.3d 362, 367–68 (2d Ci r. 2016). We therefore identify no merit in Sica’s procedural or substantive reasonableness challenges. 4. Conclusion We have considered Sica’s remaining ar guments and conclude that they are without merit. Accordingl y, the judgment of the di strict court is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court