1 14-58-cr(L) United States v. Powell et al. 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## AMENDED 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 PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED 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 Courthouse , 40 Foley Square, in the City of New York, on the 15 th day of December, two thousand fifteen.
PRESENT: GUIDO CALABRESI GERARD E. LYNCH, Circuit Judges. JED S. RAKOFF, * District Judge

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_____________________________________ UNITED STATES OF AMERICA, Appellee , v. Nos. 14-58-cr(L) ** 14-339-cr(con) 14-771-cr(con) JEFFERY POWELL, AKA Ghost, TITUS 14-1054-cr(con) NICKENS, AKA Tit, KAHARI SMITH, AKA 14-1890-cr(con) Sealed Defendant, AKA Kiss, HABAKKUK 14-3479-cr(con)

* The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

** These appeals were originally consolidat ed with that of co-defendant Jermeere McKinnon, no. 14-58. McKinnon’s appeal was dismissed on Fe bruary 27, 2015.2 NICKENS, AKA HB, Defendants-Appellants JERMEERE MCKINNON, AKA Hood, KENNETH JACKSON, AKA Karome, RIADDA TRAVET, AKA Rico, CHRISTOPHER MIKE, AKA Jah, AKA C-Mike, NATHAN RING, AKA Nate, DWAYNE HESTER, AKA Black, DONALD R. JOHNSON, JR., AKA D-Jigga, Defendants

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___________________ __________________ FOR APPELLANTS: James M. Branden, New York, NY, for Jeffery Powell. MARIANNE MARIANO, Federal Public Defender’s Office (Hillary K. Green, Of Counsel, on the brief ), Buffalo, NY, for Titus Nickens

. YVONNE SHIVERS, for Habakkuk Nickens

. ROBERT A. CULP, Garrison, NY (Laurie S. Hershey, Manhasset, NY, on the brief ), for Kahari Smith. FOR APPELLEE: PAUL D. SILV ER, Assistant United States Attorney, for Richard S. Hartunian , United States Attorney for the Northern District of New York, New York, NY.
Appeal from judgments of the United States District Court for the Northern District of New York (Nor man A. Mordue, J. ).3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments as to appellant s Titus Nickens, Kahari Smith, and Habakkuk Nickens are AFFIRMED . Attorney James M. Branden’s motion to be relieved as counsel to Jeffery Powell, and th e Government’s motions to dismiss Powell’s appeal of his conviction and te rm of imprisonment and to summarily affirm his special assessment and term of supervised release are GRANTED

. Jeffery Powell, Titus Nickens, Kahari Smith, and Habakkuk Nickens appeal from judgments of conviction entered in the Unite d States District Court for the Northern District of New York, and their senten ces of 121, 121, 420, and 240 months’ imprisonment, respectively. All four appellan ts pled guilty to cons piring to conduct the affairs of an enterprise through a pattern of racketeering activity in vi olation of 18 U.S.C. § 1962(d). We assume the par ties’ familiarity with the und erlying facts and procedural history.

Jeffery Powell Powell’s attorney moves to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). To grant an Anders motion, we must be sati sfied that (1) “counsel has diligently searched the reco rd for any arguably meritorious issue in support of his client’s appeal;” and (2) “defense counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.” United States v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993).4 Powell pled guilty pursuant to a plea agr eement in which he waived his right “to appeal . . . his conviction and any sentence of imprisonment of 121 months or less . . . .” A. 39. A defendant’s knowing and voluntary waiv er of the right to a ppeal is enforceable. United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). Powell thus may not appeal his conviction and term of imprisonm ent. Neither Powell’s supervised release term nor the special assessment, the only co mponents of his sentence not covered by the appeal waiver, presents non-frivo lous issues for appeal. Acco rdingly, counsel’s motion to be relieved, and the government’s motions to dismiss Powell’s appeal of his conviction and term of imprisonment and to summarily a ffirm his supervised release and special assessment, are granted.

Titus Nickens Titus Nickens argues that the district cour t committed procedural error by failing to consider his withdrawal from criminal activity prior to his arrest and alleged sentencing disparities among the codefendants . He did not object to th ese alleged failures in the district court and we therefore review for pl ain error. See United States v. Wernick, 691 F.3d 108, 117 (2d Cir. 2012). We find no erro r, plain or otherwise. Far from ignoring Nickens’s positive community involvements, the district court expre ssly considered those activities, and indeed cited them as a reason to depart downward from Nickens’s Criminal History Category, and thus to reduce his sent ence. Moreover, even if the district court5 were required to consider sentencing disp arities between codefendents, but see United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008) (holding that such consideration is not required), we see no undue disparity among th e sentences imposed on appellants and their codefendants’ sentences. Titus Nickens also argues that his sentence was substantively unreasonable in light of his individual characteristics. We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Rigas, 583 F.3d 108, 121 (2d Cir. 2009). A sentence will be set aside as substantively un reasonable “only in ex ceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” Id. at 122 (internal quotation mark omitted). The district court did not abuse its discretion by imposing a 121-month sentence. Judge Mordue ’s statement that Nickens’s “only saving grace” was his involvement in a community nonprofit does not indicate that he did not consider Nickens’s other argua bly mitigating characteristics, but rather expresses the reasonable view that this involvement wa s the only mitigating factor sufficiently substantial to weigh against the seriousness of Nickens’s crimes and his significant criminal history.

Kahari Smith Kahari Smith argues that his sentence of 420 months in prison was substantively unreasonable because (1) he did not specifically intend to kill Kihary Blue; (2) his sentence6 is disproportionate to those of his codefend ants; (3) his personal characteristics weigh in favor of a lesser term of imprisonment; and (4 ) his criminal history category overstates the seriousness of his record becau se his only two prior convicti ons were for conduct charged as overt acts in the RICO conspiracy coun t. These arguments are without merit. The district court was not required to accep t Smith’s claim that he lacked specific intent to murder Kihary Blue. But even if th at assertion is credited, it is undisputed that Smith fired into a moving, occupied vehicle, an extremely reckless act that created a substantial and unjustifiable risk of death, and in fact caus ed the death of one person and the serious injury of another. The sentence imposed was neither disproportionate to the seriousness of Smith’s conduct, nor disproportiona te to the sentences of his codefendants, who did not commit acts of equivalent gravity. Nor is there merit to Smith’s claim that the district court fa iled to consider his personal characteristics. “We presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfu lly discharged her duty to consider” the § 3553(a) factors. United States v. Fernande z, 443 F.3d 19, 30 (2 d Cir. 2006). Here, the district court expressly stated that it had co nsidered the statutory factors which include a defendant’s “history and characteris tics.” 18 U.S.C. § 3553(a)(1). Finally, Smith argues that his criminal hi story score overstated the seriousness of his record, because his only two prior convictions were for conduct charged as overt acts in the RICO conspiracy count. We see no erro r in the district court’s treatment of the7 overlap between Smith’s prior convictions and the predicate acts charged in this indictment, which was consistent with the methodology prescribed in the Sentencing Guidelines. See U.S.S.G. § 2E1.1 cmt. 4.

Habakkuk Nickens Habakkuk Nickens argues that the district court committed procedural error by including his youthful-offender adjudication in his criminal history calculation without expressly considering the factors set forth in United States v. Driskell, 277 F.3d 150 (2d Cir. 2002), and by concluding that Nickens’s pa rticipation in the shooting of Kihary Blue could constitute first degree murder. Habakkuk Nickens failed to raise these arguments in the district court and, therefore, we review them only for plain error. See Wernick, 691 F.3d at 117. The district court did not commit plain erro r by failing to apply the Driskell factors. It was reasonable for the district court to inte rpret Driskell as applyi ng only to defendants, like Driskell, whose youthful-offender adjudica tions are based on conduct that occurred before the defendant was eighteen years old. Driskell, 277 F.3d at 158; see also United States v. Orlando-Mena, 347 F. App’x 690, 692 (2d Cir. 2009) (summary order) (“There is no need to consider whether Orlando-Mena’s [youthful-offender ad judication] sentence resulted from an adult conviction, because he committed the offense in question when he was eighteen years old.”). Nickens committed his petit larceny offense at the age of8 eighteen. In any event, even if the Driskell factors should have be en applied here, any error was harmless. Judge Mordue chose to depart downward by one criminal history category, thus taking account of the possibility that giving full weight to all of Nickens’s prior convictions overstated the seriousness of his criminal history. We also reject Habakkuk Nickens’s argumen t that there was an insufficient factual basis for the district court to apply the guideli ne for first degree murder. The district court did not plainly err by relying on Nickens’s stipulation in hi s plea agreement that he was accountable for the first degree murder of Kihary Blue. Moreove r, the court could properly rely on evid ence that Nickens, who was driving the car from which Blue was shot, deliberately maneuvered the car so as to positi on Smith’s gun in line with the windows of the rival vehicle. There was thus ample basis to infer that Nickens acted with a deliberate intent to facilitate the murder of th e occupants of the other vehicle. Finally, we reject Habakkuk Nickens’s cl aim that his sentence was substantively unreasonable. He was a direct participan t in the murder of Blue, which sharply distinguishes him from others who received lower sentences, and fully justifies his below-guidelines 20-year sentence. We have considered all of the appellants’ remaining arguments and find them to be without merit. Accordingly, the judgments of the district court as to Titus Nickens, Kahari Smith, and Habakkuk Nickens are AFFIRMED. The appeal of Jeffery Powell is9 dismissed as to his conviction and sentence of imprisonment and the judgment as to him is AFFIRMED in all other respects.
FOR THE COURT: Catherine O’ Hagan Wolfe, Clerk of Court