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 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
9 th day of February, tw o thousand eighteen. 3

4 Present: ROSEMARY S. POOLER, 5 ROBERT D. SACK, 6 Circuit Judges

. 7 PAUL A. ENGELMAYER, 1 8 District Judge

. 9

10

_____________________________________________________ 11

12 UNITED STATES OF AMERICA, 13

14 Appellee

, 15

16
v. 17-150 17

18 PHILLIP MUIR, AKA Zeeks, 19

20 Defendant-Appellant

. 21

_____________________________________________________ 22

23 Appearing for Appellant: Karloff Cylton Commissiong, Adams & Commissiong LLP, New 24 York, N.Y. 25

26 Appearing for Appellee: Robe rt Allen, Assistant United States Attorney (Diane Gujarati, 27 Assistant United States Attorney, on the brief ), for Geoffrey S. 28

1 Judge Paul A. Engelmayer, United States District Court for the Southern District of New York, sitting by designation.2 Berman, Interim United States Atto rney, Southern District of New 1 York, New York, N.Y. 2

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

5 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 6
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

. 7

8 Appellant Phillip Muir appeals from th e January 9, 2017 judgment of the United States 9
District Court for the Southern District of New York (Berman, J. ), sentencing Muir principally to 10 200 months in prison for offenses related to fi rearms and drug traffi cking. We assume the 11 parties’ familiarity with the underlying facts, pr ocedural history, and specification of issues for 12
review. 13

14 Muir argues that the district court’s use of uncharged and acquitted conduct at sentencing 15 violated the Due Process and Double Jeopardy Cl auses of the Fifth Amendment, and the Sixth 16 Amendment’s guarantee of trial by jury. We have previously rejected these same arguments. See 17 United States v. Vaughn , 430 F.3d 518, 527 (2d Cir. 2005) (“[D]i strict courts may find facts 18 relevant to sentencing by a preponderance of th e evidence, even where the jury acquitted the 19 defendant of that conduct, as l ong as the judge does not impose (1 ) a sentence in the belief that 20 the Guidelines are mandatory, (2) a sentence th at exceeds the statutory maximum authorized by 21 the jury verdict, or (3) a ma ndatory minimum sentence under [the applicable statute] not 22 authorized by the verdict.”); see also United States v. Ulbricht , 858 F.3d 71, 128 (2d Cir. 2017) 23 (“A district court may consider as part of its sentencing dete rmination uncharged conduct proven 24 by a preponderance of the evidence as long as that conduct does not increase either the statutory 25 minimum or maximum available punishment.”). T hough these questions continue to raise some 26 constitutional controversy, see, e.g. , United States v. Lasley , 832 F.3d 910, 921 (8th Cir. 2016), 27
cert. denied , 137 S. Ct. 823 (2017) (Bright, J. , dissenting) (collecting ca ses), they are squarely 28 settled by our previous decisions. Accordingly, Muir’s arguments are foreclosed by circuit 29 precedent. 30

31 Muir also argues that the use of acquitted conduct violates prin ciples of collateral 32 estoppel. However, this argument is deriva tive of the Fifth Amendment Double Jeopardy 33
argument. See Dowling v. United States , 493 U.S. 342, 347 (1990) (“[T]he Double Jeopardy 34 Clause incorporates the doctrine of collateral estoppel.”). Given the higher burden of proof at 35 trial than at sentencing, colla teral estoppel does not bar the use of acquitted conduct in 36 sentencing. See Cobb v. Pozzi , 363 F.3d 89, 114 (2d Cir. 2004) (“[A] difference in the burdens of 37 proof in two proceedings can make the applicat ion of collateral estoppel improper ... A litigant’s 38 failure to meet a higher burden of proof on an issue in a prior proceeding does not bar him from 39 raising the same issue in a subsequent proceeding in which his burden will be lighter.”) (quoting 40 Purdy v. Zeldes , 337 F.3d 253, 259 (2d Cir. 2003)) (internal quotation marks omitted). 41

42 Muir further argues that th e district court erred by fi nding that the government had 43 proved the uncharged or acquitted conduct by a preponderance of the evidence. “A district 44 court’s factual findings at sentencing need be supported only by a preponderance of the 45 evidence, and such findings may be overturne d only if they are clearly erroneous.” United States 463 v. Ryan , 806 F.3d 691, 694 (2d Cir. 2015) (quoting United States v. Gonzalez , 647 F.3d 41, 62 1 (2d Cir. 2011)). 2

3 Muir attacks the credibility of several witn esses, largely by assert ing that they provided 4 self-serving or illogical testimony. However, given that “assessing the credib ility of witnesses is 5 distinctly the province of the district court,” and that a co urt’s “factual findings based on the 6 testimony of witnesses [are] entitled to special deference,” we see no basis for upsetting the 7 district court’s factual findings on appeal. United States v. Beverly , 5 F.3d 633, 642 (2d Cir. 8 1993). 9

10
We have considered the remainder of Mui r’s arguments and find them to be without 11 merit. Accordingly, the order of the district c ourt hereby is AFFIRMED. E ach side to bear its 12

own costs. 13

14

15
FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17

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