22

- 1179

- cr United States v. Fortune
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 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 3 rd day of October , two thousand twenty

- three

.

PRESENT: Guido Calabresi , Steven J. Menashi , Myrna P é rez , Circuit Judges.

________________________________ ____________ UNITED STATES OF AMERICA ,
Appellee ,

v. No. 22

- 1179

- cr

TYRIEK FORTUNE, AKA Sealed Defendant 1, AKA Rico Balla ,
Defendant

- Appellant

.

________________________________ ____________2 For Appellee : A NDREW J ONES , Assistant United States Attorney ( David Abramowicz, Assistant United States Attorney, on the brief ), for Damian Williams, United States Attorney for the Southern District of New York, New York, New York

.

For Defendant

- Appellant : D ONALD J. Y ANNELLA III , Donald Yannella P.C., New York, New York.

Appeal from the United States District Court for the Southern District of New York ( Caproni , J.). Upon due consideration, it is hereby ORDERED , ADJUDGED , and DECREED that the judgment of the district court is AFFIRMED

. Defendant

- Appellant Tyriek Fortune appeals from the judgment of the district court dated May 26, 2022, imposing a sentence following Fortune’s guilty plea to unlawfully possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). The district court applie d two sentenc ing enhancements. First, because Fortune had also unlawfully possessed other firearms prior to his arrest, the district court added four levels to his sentence. Second , because Fortune had also trafficked in firearms, the court added another f our levels. Fortune argues that the district court erred in applying the se enhancements. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

“The district courts have discretion to se lect an appropriate sentence, and in doing so are statutorily bound to consider

... the advisory Guidelines range. The courts of appeals then review for abuse of discretion.” United States v. Cavera , 550 F.3d 180, 188 (2d Cir. 2008). A d istrict court must “f ind facts relevant to sentencing3 by a preponderance of the evidence.” United States v. Garcia , 413 F.3d 201, 220 n.15 (2d Cir. 2005). We then “review [] the district court’s interpretation of the Sentencing Guidelines de novo , and review [] the district court’s findings of fact for clear error.” United States v. Rubenstein , 403 F.3d 93, 99 (2d Cir. 2005).

I

We conclude that the district court did not abuse its discretion in applying the first enhancement. Under the Sentencing Guidelines , th e sentence for a n offense should take account of conduct that is “part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Instances of unlawful conduct are “part of the same course of conduct if th ey are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” Id. § 1B1.3

c o m men t. ( n.5(B)(ii) )

. W hen a defendant has been convicted of unlawful possession of a firearm as a felon, courts generally decide that the defendant’s
recent possession of other firearms is sufficiently related to the offense of conviction to qualify as part of the same course of conduct. 1 In this case, Fortune unlawfully possessed t he additional firearms no more than four months prior to his arrest

— not so removed in time as to form a separate course of conduct

. See United States v. Santiago , 906 F.2d 867, 873 (2d Cir. 1990) ( “[W]e cannot conclude that the mere fact that the events we re separated by some eight months means they are not part of the same course of conduct.”) . Fortune’s first sentence enhancement

was therefore warranted under the Guidelines. Fortune argues that the government did not prove that the firearms in the images and videos appearing on his phone were real firearms. Fortune claim s that, as an aspiring rapper, he “had access to replica and ‘prop’ firearms.” Appellant’s

1 See United States v. Parlor , 2 F.4th 807, 812 (9th Cir. 2021); United States v. Brummett , 355 F.3d 343, 345 (5th Cir. 2003); United States v. Santoro , 159 F.3d 318, 321 (7th Cir. 1998); United Stat es v. Windle , 74 F.3d 997, 1000

- 01 (10th Cir. 1996); United States v. Powell , 50 F.3d 94, 104 (1st Cir. 1995).4 Br. at 9. A t a Fatico hearing, however, a n officer of the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that at least eleven of the firearms in the images and videos were real. The officer testified that no replicas were available for six of the guns . On an additional five, certai n features

— such as the serial number on a Glock or the loaded ammunition in a Smith & Wesson 5906

— distinguished the f irearms in the images and videos f rom replicas. The district court concluded that “the government’s evidence was persuasive that the guns l ooked real” because “[t]hey were handled like they were real, they were loaded, and at least one was fired,” J. App’x 241 , and that “there are very specific facts about five of those guns that would lead me to conclude by clear and convincing evidence that they were ... not replica guns , ” id. at 2 23

. The district court did not clearly err in find ing that Fortune possessed at least eight guns, warranting a four

- level enhancement.

II Fortune challenges the second enhancement on two grounds. First, he claims th at the government did not prove he sold any firearms

. The first element of the gun

- trafficking sentence enhancement is satisfied , however, if the defendant “received two or more firearms with the intent to transport, transfer, or otherwise dispose of firea rms to another individual .” U.S.S.G. § 2K2.1 c om m en t. ( n.13 (A)(i) ) (emphasis added). The district court found , based on text messages recovered from Fortune’s phone , that Fortune inten ded to transfer the firearms

. T hat finding was not clearly erroneous. Second, Fortune argues that the government did not prove that he knew or had reason to believe that the use of the firearms by “Sleazy Spade”

— the counterparty in the text message exchanges

— would be unlawful, as requi red for the enhancement. Id. § 2K2.1 c o m men t. ( n.13(A)(ii) )

. T he record support s the district court’s finding that Sleazy Spade likely intended to use the guns unlawfully. Sleazy Spade told Fortune that he needed guns “ASAP”

— “[a]s many as possible”

— which s uggest s violent activity. J. App’x 208. Further more , this was a black

- market transaction involving firearms acquired out of state, which could5 lead a reasonable factfinder to conclude that the purchaser’s use of the firearms would be unlawful . As the distr ict court observed, the fact that “gun control laws in New York are [very] strict and

... [Fortune] is not in the legitimate business of selling guns” suggests that “Sleazy Spade’s possession was unlawful and that he intended to use the gun unlawfully.” Id. at 243. T he district court also credited expert testimony, based on the use of code words in the text messages, that Sleazy Spade was a member of a gang. These findings were not clearly erroneous , so the district court did not abuse its discretion in applying the second enhancement

. III Finally, Fortune argues that N.Y. Penal Law § 265.01

— which, according to the g overnment’s sentencing memorandu m, Sleazy Spade would have violated by possessing a firearm without a license

— is unconstitutional pursuant to the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen , 142 S. Ct. 2111 (2022). For that reason, Fortune suggests, Sleazy Spade’s possession would not have been unlawful. Fortune did not raise this argument be fore the district court, so we review this issue only for plain error. See Johnson v. United States , 520 U.S. 461, 464 (1997). Under that standard, the error must be “clear or obvious, rather than subject to reasonable dispute.” United States v. Montague , 67 F.4th 520, 528 (2d Cir. 2023) (quoting Puckett v. United States , 556 U.S. 129, 135 (2009)).

N either we nor the Supreme Court have addressed the constitutionality of N.Y. Penal Law § 265.01 , and for th at reason the constitutionality of the provision is not “clear under current law.” United States v. Whab , 355 F.3d 155, 158 (2d Cir. 2004). “[T]ypically,” we do not identify a plain error when “ the operative legal question is unsettled, including where there is no binding precedent from the Supreme Court or this Court.” I d. The district court in this case did not plainly err.

* * *6 For the foregoing reasons, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Cou 

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