17-150 

US v. Muir 

 

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. 

1 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

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

9th 3 day of February, two thousand eighteen. 

4 

5 Present: ROSEMARY S. POOLER, 

6 ROBERT D. SACK, 

7 Circuit Judges. 

 PAUL A. ENGELMAYER,1 8 

9 District Judge. 

10 

11 _____________________________________________________ 

12 

13 UNITED STATES OF AMERICA, 

14 

15 Appellee, 

16 

17 v. 17-150 

18 

19 PHILLIP MUIR, AKA Zeeks, 

20 

21 Defendant-Appellant. 

22 _____________________________________________________ 

23 

24 Appearing for Appellant: Karloff Cylton Commissiong, Adams & Commissiong LLP, New 

25 York, N.Y. 

26 

27 Appearing for Appellee: Robert Allen, Assistant United States Attorney (Diane Gujarati, 

28 Assistant United States Attorney, on the brief), for Geoffrey S. 

 

1

 Judge Paul A. Engelmayer, United States District Court for the Southern District of New York, 

sitting by designation. 
2 

1 Berman, Interim United States Attorney, Southern District of New 

2 York, New York, N.Y. 

3 

4 Appeal from the United States District Court for the Southern District of New York (Berman, J.). 

5 

6 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

7 AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

8 

9 Appellant Phillip Muir appeals from the January 9, 2017 judgment of the United States 

10 District Court for the Southern District of New York (Berman, J.), sentencing Muir principally to 

11 200 months in prison for offenses related to firearms and drug trafficking. We assume the 

12 parties’ familiarity with the underlying facts, procedural history, and specification of issues for 

13 review. 

14 

15 Muir argues that the district court’s use of uncharged and acquitted conduct at sentencing 

16 violated the Due Process and Double Jeopardy Clauses of the Fifth Amendment, and the Sixth 

17 Amendment’s guarantee of trial by jury. We have previously rejected these same arguments. See 

18 United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005) (“[D]istrict courts may find facts 

19 relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the 

20 defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that 

21 the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by 

22 the jury verdict, or (3) a mandatory minimum sentence under [the applicable statute] not 

23 authorized by the verdict.”); see also United States v. Ulbricht, 858 F.3d 71, 128 (2d Cir. 2017) 

24 (“A district court may consider as part of its sentencing determination uncharged conduct proven 

25 by a preponderance of the evidence as long as that conduct does not increase either the statutory 

26 minimum or maximum available punishment.”). Though these questions continue to raise some 

27 constitutional controversy, see, e.g., United States v. Lasley, 832 F.3d 910, 921 (8th Cir. 2016), 

28 cert. denied, 137 S. Ct. 823 (2017) (Bright, J., dissenting) (collecting cases), they are squarely 

29 settled by our previous decisions. Accordingly, Muir’s arguments are foreclosed by circuit 

30 precedent. 

31 

32 Muir also argues that the use of acquitted conduct violates principles of collateral 

33 estoppel. However, this argument is derivative of the Fifth Amendment Double Jeopardy 

34 argument. See Dowling v. United States, 493 U.S. 342, 347 (1990) (“[T]he Double Jeopardy 

35 Clause incorporates the doctrine of collateral estoppel.”). Given the higher burden of proof at 

36 trial than at sentencing, collateral estoppel does not bar the use of acquitted conduct in 

37 sentencing. See Cobb v. Pozzi, 363 F.3d 89, 114 (2d Cir. 2004) (“[A] difference in the burdens of 

38 proof in two proceedings can make the application of collateral estoppel improper ... A litigant’s 

39 failure to meet a higher burden of proof on an issue in a prior proceeding does not bar him from 

40 raising the same issue in a subsequent proceeding in which his burden will be lighter.”) (quoting 

41 Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003)) (internal quotation marks omitted). 

42 

43 Muir further argues that the district court erred by finding that the government had 

44 proved the uncharged or acquitted conduct by a preponderance of the evidence. “A district 

45 court’s factual findings at sentencing need be supported only by a preponderance of the 

46 evidence, and such findings may be overturned only if they are clearly erroneous.” United States 
3 

1 v. Ryan, 806 F.3d 691, 694 (2d Cir. 2015) (quoting United States v. Gonzalez, 647 F.3d 41, 62 

2 (2d Cir. 2011)). 

3 

4 Muir attacks the credibility of several witnesses, largely by asserting that they provided 

5 self-serving or illogical testimony. However, given that “assessing the credibility of witnesses is 

6 distinctly the province of the district court,” and that a court’s “factual findings based on the 

7 testimony of witnesses [are] entitled to special deference,” we see no basis for upsetting the 

8 district court’s factual findings on appeal. United States v. Beverly, 5 F.3d 633, 642 (2d Cir. 

9 1993). 

10 

11 We have considered the remainder of Muir’s arguments and find them to be without 

12 merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its 

13 own costs. 

14 

15 

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk 

18