17-3689

United States v. Hicks-Bailey



### UNITED STATES COURT OF APPEALS

FOR THE SECOND 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 ELECTRON IC DATABASE (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 Court of Appeals for the Second Circuit, held at the 1



### Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2



### 29 th 

### day of October, two thousand eighteen. 3

4



### Present: ROSEMARY S. POOLER, 5



### RAYMOND J. LOHIER, JR., 6



### SUSAN L. CARNEY, 7



### Circuit Judges

. 8

9



### _____________________________________________________ 10

11



### UNITED STATES OF AMERICA, 12

13



### Appellee

, 14

15



### v. 17-3689 16

17



### DAMIEN C. HICKS-BAILEY, 18

19



### Defendant-Appellant. 20



### _____________________________________________________ 21

22



### Appearing for Appellant: E. Carey Cantwell, Buffalo, N.Y. 23

24



### Appearing for Appellee: Mary Baumgart en, Assistant United States Attorney, for James P. 25



### Kennedy, United States Attorney fo r the Western District of New 26



### York, Buffalo, N.Y. 27

28



### Appeal from the United States Di strict Court for the Western Di strict of New York (Arcara, J. ). 29

30

### 2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 1



### AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED. 2

3



### Defendant-Appellant Damien C. Hicks- Bailey appeals from a November 6, 2017 4



### judgment entered by the District Court for th e Western District of New York (Arcara, J .), 5



### sentencing him principally to a term of 96 mont hs’ imprisonment for possession with intent to 6



### distribute and distribution of heroin. The judgmen t was imposed after Hicks-Bailey pled guilty. 7



### The district court determined, after a Fatico hearing, that an upward departure was warranted 8



### because Hicks-Bailey’s distribution of heroin resulted in the overdos e death of its recipient. This 9



### appeal was timely filed on November 8, 2017. We assume the parties’ familiarity with the 10



### underlying facts, procedural history, and specification of issues for review. 11

12



### We review a district court’ s sentencing decision for both substantive and procedural 13



### reasonableness. United States v. Rattoballi , 452 F.3d 127, 131-32 (2d Cir. 2006), abrogated in 14



### part on other grounds by Kimbrough v. United States , 552 U.S. 85 (2007). We review the district 15



### court’s interpretation of the Gu idelines de novo and its finding s of fact for clear error. Id . at 132. 16



### We review the extent of a departure unde r the Guidelines for abuse of discretion . United States v. 17



### Fuller , 426 F.3d 556, 562 (2d Cir. 2005). 18

19



### I. Application of U.S.S.G. § 5K2.1 20



### Hicks-Bailey first asserts that the district court erred in concluding that his offense 21



### conduct resulted in the death of Eric Harkins such that Sec tion 5K2.1 applies. Section 5K2.1 22



### affords a court discretion to “increase the sent ence above the authorized guideline range” if it 23



### finds that death resulted from the criminal c onduct. To assess the applicability of Section 5K2.1, 24



### “the court should use the preponde rance of the evidence standard to determine whether death 25



### resulted.” United States v. Cordoba-Murgas , 233 F.3d 704, 710 (2d Cir. 2000). The district court 26



### did not err in finding, by a preponderance of the evidence, that Hicks-Bailey’s distribution of 27



### heroin to Harkins resulted in Harkins’s death. 28

29



### In reaching its conclusion, the districtcourt correctly noted and applied the 30



### preponderance of the evidence standard. The cred ible evidence to this effect included the 31



### proximity in time between Hicks-Bailey’s delivery of heroin to Harkins, Harkins’s text messages 32



### regarding the superior potency of the hero in, and Harkins’s estim ated time of death. 33



### Additionally, Hicks-Bailey’s DNA was present on an empty corner portion of a plastic bag near 34



### the body. The medical examiner testified that, al though Harkins had ingested drugs other than 35



### heroin, the heroin alone was suffi cient to cause death. Accordingly, we affirm the district court’s 36



### finding, by a preponderance of the evidence, that Hi cks-Bailey’s distribution of heroin resulted 37



### in Harkins’s death, such th at Section 5K2.1 applies. 38

39



### II. Consideration of U.S.S.G. § 2D1.1(a)(2) 40



### Hicks-Bailey next argues th at the district court misappl ied U.S.S.G. § 2D1.1(a)(2) in 41



### determining the extent of its departure under Secti on 5K2.1. In particular, he asserts that district 42



### court “overreached” by applying U.S.S.G. § 2D1.1(a )(2) and that “because there is no evidence 43



### he engaged in premeditated murder,” the district court should have used a base offense level of 44



### 18, which is associated with involuntary manslaughter involving reckless conduct under 45



### U.S.S.G. § 2A1.4(a)(2)(A). This argument fails. 46

### 3 In departing upward pursuant to Section 5K 2.1, “[t]he extent of the increase should 1



### depend on the dangerousness of the defendant’s conduct, the extent to which death or serious 2



### injury was intended or knowingly risked , and the extent to which the offense level for the offense 3



### of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of 4



### personal injury.” U.S.S.G. § 5K2.1 (emphasis added) . At sentencing, the dist rict court noted that 5



### “Congress’ assessment of the a ppropriate punishment when a person has been convicted [under 6



### Section 841(b)(1)(C)] of the offens e of distributing a controlled s ubstance that caused death is 7



### certainly entitled to substantia l weight,” but it declined to accept the government’s proposed 8



### method of using an offense level of 38 pursuan t to Section 2D1.1(a)(2) as a starting point. 9

10



### Instead, the court used the original offense level of 10 as a starting point, and then it 11



### considered “the extent necessary to depart upwardly from that starting point to reach an 12



### appropriate offense level and a range of impris onment.” In so doing, it considered “the 2D1.1 13



### guidelines, the harm that resulted from the defenda nt’s offense, the degree of recklessness of the 14



### defendant’s conduct when he consci ously disregarded the risk of d eath or serious injury[,] . . . 15



### and the strength of the showing made by the Unit ed States” in order to conclude that offense 16



### level 31 was an appropriate base offense leve l on the facts. (App. 337.) Having determined a 17



### substantial increase was appropriate because Hick s-Bailey “knowingly risked” death or serious 18



### injury by distributing an unknown controlled substance, see Section 5K2.1 (“The extent of the 19



### increase should depend on . . . the extent to wh ich death or serious in jury was . . . knowingly 20



### risked”), the court acted within its discretion in increasing Hicks-Bailey’s offense level to level 21



### 31 before applying a six-level reduction fo r acceptance of responsibility and minimal 22



### participation in the criminal activity. 23

24



### We have considered the remainder of Hick s-Bailey’s arguments and find them to be 25



### without merit. Accordingly, the order of the district court hereby is AFFIRMED. 26

27



### FOR THE COURT: 28



### Catherine O’Hagan Wolfe, Clerk 29

30

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