1 15

‐ 891

‐ cr

United States v. Golding

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX OR AN ELECTRONIC 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 Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 22 nd day of June, two thousand sixteen.

PRESENT: CHESTER J. STRAUB,

RICHARD C. WESLEY,

CHRISTOPHER F. DRONEY,

Circuit Judges.

__________ ____________

UNITED STATES OF AMERICA,

Appellee,

‐ v. ‐ No. 15

‐ 891

KARIM GOLDING, aka Ream,

Defendant

‐ Appellant.

__________ ____________

FOR APPELLANT: MEGAN WOLFE BENETT (Harry C. Batchelder, Jr., on

the brief ), New York, NY.2 FOR APPELLEE: ALEXANDER A. SOLOMON, Assistant United States

Attorney (Peter A. Norling, Assistant United States

Attorney, on the brief ), for Robert L. Capers, United

States Attorney for the Eastern District of New York,

Brooklyn, NY.

Appeal from the United States District Court for the Eastern District of

New York (Ross, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the amended judgment of the District Court

is AFFIRMED IN PART and VACATED IN PART

, and the case is

REMANDED for resentencing.

Karim Golding appeals from an amended judgment of conviction in the

United States District Court for the Eastern District of New York, sentencing him

to fifteen years’ imprisonment on the basis of ten

‐ year and five

‐ year mandatory

minimum sentences arising from firearm

‐ and drug

‐ related counts respectively.

We assume the parties’ familiarity with the underlying facts and the procedural

history, which we reference only as necessary to explain our conclusions.

Golding first challenges the imposition of a ten

‐ year mandatory minimum

sentence for the discharge of a firearm in furtherance of a drug trafficking crime.

See 18 U.S.C. § 924(c)(1)(A)(iii). At trial, the jury was instructed on the relevant

count that, in order to return a guilty verdict, they only needed to find that3 Golding had “used,” “carried,” or “possessed” the firearm. Under the rule of

Alleyne v. United States

, “any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.” 133 S. Ct. 2151, 2155 (2013).

Because this sentence was not challenged below, we review for plain error and

conclude that the imposition of the ten

‐ year mandatory minimum on the basis of

a fact—discharge of a firearm—not found by the jury is “clearly contrary to the

law at the time of appeal,” satisfying the first two criteria of plain error review.

Johnson v. United States

, 520 U.S. 461, 467–68 (1997). Further, because the District

Court expressly stated that it would impose a shorter sentence if not for the

statutory minimum, we have no difficulty concluding that the imposition of the

incorrect mandatory minimum sentence both affected Golding’s substantial

rights and seriously affected the fairness and integrity of judicial proceedings.

See United States v. Sanchez

, 773 F.3d 389, 392–94 (2d Cir. 2014). 1

The Government argues that the evidence supporting the uncharged fact

was “overwhelming” and “essentially uncontroverted” and accordingly could

1 It is an open question in our Circuit whether our previous “modified plain error” rule

in such cases—which places the burden of proving a lack of prejudice on the

government—continues to be viable following Johnson

. See, e.g.

, United States v. Botti

,

711 F.3d 299, 308–09 (2d Cir. 2013). Because we conclude that the error here satisfies the

plain error standard no matter who bears the burden, we need not answer the question

in this case. See United States v. Prado

, 815 F.3d 93, 102–03 (2d Cir. 2016).4 not have seriously affected the fairness or integrity of the proceeding. See

Johnson

, 520 U.S. at 470. This argument is without merit. Not only did Golding’s

first trial on these charges end in a mistrial, see United States v. Golding

, 482 F.

App’x 633, 634–35 (2d Cir. 2012) (summary order), but the evidence offered to

show discharge of the firearm is circumstantial, supported principally by the

testimony of witnesses whose credibility was a major theme of the defense’s case.

Because the jury was never asked to evaluate the witnesses’ credibility as to

Golding’s discharge of the weapon, we cannot say the evidence meets the

standard of “‘overwhelming’ and ‘essentially uncontroverted.’” See United States

v. Cotton

, 535 U.S. 625, 633 (2002). Rather, there is “a reasonable probability” the

jury would not have found a discharge of the firearm. United States v. Kaiser

, 609

F.3d 556, 567 (2d Cir. 2010); see also United States v. Garcia

, 587 F.3d 509, 521 (2d

Cir. 2009) (holding plain error seriously affected judicial proceedings where

“there is a substantial possibility” that defendant is not guilty of the offense). We

therefore vacate Golding’s sentence on Count Eleven and remand to the District

Court for resentencing pursuant to § 924(c)(1)(A)(i), which requires only a five

‐

year mandatory minimum sentence.5 Finally, Golding contends that the imposition of a five

‐ year mandatory

minimum sentence violates the Eighth Amendment because a conviction for the

identical weight of powder cocaine, instead of cocaine base, would not subject

him to that minimum. Our review of a claim of constitutional disproportionality

of a sentence is “very limited,” in which we “must assess the gravity of the

offense and the harshness of the penalty, the sentences imposed on other

criminals in the same jurisdiction, and the sentences imposed for commission of

the same crime in other jurisdictions.” United States v. Bennett

, 252 F.3d 559, 567

(2d Cir. 2001) (citing Solem v. Helm

, 463 U.S. 277, 292 (1983)). “[I]t is rare that a

sentence falling within a legislatively prescribed term of years will be deemed

grossly disproportionate.” United States v. Reingold

, 731 F.3d 204, 212 (2d Cir.

2013) (internal quotation marks omitted); see also United States v. Mitchell

, 932

F.2d 1027, 1028–29 (2d Cir. 1991) (per curiam) (holding that legislative

determinations of terms of imprisonment are “primary and presumptively

valid”). We have at least twice upheld the previous 100

‐ to

‐ 1 cocaine

‐ to

‐ cocaine

‐

base ratio as within constitutional limitations. See United States v. Payne

, 63 F.3d

1200, 1213 (2d Cir. 1995); United States v. Jackson

, 59 F.3d 1421, 1424 (2d Cir. 1995)

(per curiam). A fortiori

, a sentence imposed under the current 18

‐ to

‐ 1 ratio does6 not exceed constitutional limitations. Accordingly, we affirm the five

‐ year

concurrent mandatory minimum sentences imposed on Counts One through

Seven.

For the reasons stated above, the amended judgment of the District Court

is AFFIRMED IN PART and VACATED IN PART

, and the case is

REMANDED for resentencing in accordance with this order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk