1 12-513(L) United States v. Young UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION

A 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 4 th day of April, two thousand fourteen. PRESENT: REENA RAGGI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 12-513(L) No. 12-1054(CON) DAVON YOUNG, THOMAS CHAMBLISS, also known No. 12-1328(CON) as TC, and GREGORY FULLER , also known as Murder, Defendants-Appellants

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANTS: JOSEPH A. VITA, ESQ., Port Chester, New York, for Appellant Davon Young

. STEPHEN R. LEWIS, Stephens, Baroni, Reilly & Lewis, LLP, White Plains, New York, for Appellant Thomas Chambliss

. B. ALAN SEIDLER, ESQ. New York, New York, for Appellant Gregory Fuller

.2 APPEARING FOR APPELLEE: RICHARD A. COOPER (Justin Anderson, on the brief ), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. Appeal from judgments of the United States District Court for the Southern District of New York (Cathy Seibel, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgments entered on January 31, 2012, w ith respect to Davon Young and Gregory Fuller, and Ma rch 12, 2012, with respect to Thomas Chambliss, are
AFFIRMED. Defendants Young, Chambliss, and Fuller st and convicted after trial of various substantive and conspiratorial counts of narcot ics trafficking, robbery, firearms possession, and murder. On this appeal, defendants charge the district court with multiple trial and sentencing errors. We assume the parties’ fam iliarity with the facts a nd the record of prior proceedings, which we referen ce only as necessary to expl ain our decision to affirm. 1. Defendants’ Trial Challenges a. Young’s Hearsay Challenges Young challenges the admission of various out-of-court statements by non-testifying co-defendant Chambliss that incu lpated Young in the robbery and murder of Tyrone Bergmann. Although we normally review evidentia ry decisions for abuse of discretion, reversing only if we identify “manifest error” that affected “substantial rights,” United States v. Miller, 626 F.3d 682, 689– 90 (2d Cir. 2010), be cause Young did not3 object to the admission of these statements at tria l, our review is limited to plain error. See United States v. Marcus, 560 U.S. 258, 262 (2010) (re quiring showing of (1) error; (2) that is clear or obvious; (3) affecting substantial rights, which in ordinary case means affecting outcome of district court proceedings; and (4 ) seriously affecting fairness, integrity, or public reputation of judicial proceedings). We identify no error, let alone plain erro r, here because the Chambliss statements testified to by Katherine Fernandez, Matthew Pa yton, and Jose Rivera were admissible as co-conspirator statements. See Fed. R. Ev id. 801(d)(2)(E); United States v. Coppola, 671 F.3d 220, 246 (2d Cir. 2012) (holding statement admissi ble under Fed. R. Evid. 801(d)(2)(E) where preponderance of eviden ce shows (1) conspiracy, (2) whose members included declarant and party ag ainst whom statement is offered, and (3) statement made during course and in furtherance of conspiracy). Specifically, Chambliss’s statements to Fernandez and those made to Young, which were overheard by Rivera, satisfied the th ird requirement because they apprised the listeners of “the progress or st atus of the conspiracy,” specifi cally, the result of the robbery of Bergmann. United States v. Desena, 260 F.3d 150, 158 (2d Cir. 2001) (internal quotation marks omitted). Cham bliss’s statements to Payton also furthered the charged narcotics conspiracy insofar as they referenc ed a plot to retaliate against co-defendant Fuller for providing a statement to law enforcement. See United States v. Arrington, 867 F.2d 122, 130 (2d Cir. 1989) (sta ting that “plot to silence witn esses furthers the goals” of narcotics conspiracy).4 b. Rebuttal Summation Insofar as Young and Chambliss argue th at the prosecution’s rebuttal statements deprived them of a fair trial, they bear a “heavy burden” because th ey must show not only that the remarks were objectionable, but also that the errors were so serious as to permeate the entire trial and deny them due process. See, e.g., Unite d States v. Williams, 690 F.3d 70, 74–75 (2d Cir. 2012). That is not this case. First, the prosecutor’s statement that Young and Chambliss would receive a “free pass” for the Bergmann murder if the jury found that killing in furtherance only of a small drug deal and not part of a robbery, as require d by 18 U.S.C. § 924(j), was in response to the defense argument that defenda nts should be acquitted of that charge because they never intended to rob the victim. Th e law affords the prosecution so me latitude in responding to defense arguments. See United States v. Farhane, 634 F.3d 127, 168 (2d Cir. 2011); see also United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975). In any event, even if the challenged comment here crossed the line of fair response, defendants could not demonstrate a denial of due process becaus e the district court sustained the defense objection and reminded the jury that it woul d instruct them on the applicable law. Rather than endorse the government’s position, this in struction admonished the jury not to rely on the prosecutor’s argument in lieu of the law, thereby safeguarding against a due process denial. See United States v. Parkes, 497 F.3d 220, 233–34 (2d Ci r. 2007) (referencing “measures adopted to cu re” summation error as relevant fact or in assessing denial of due process (internal quotation marks omitted)).5 Second, the prosecutor did not improperly vouch for government witnesses. As to witness Rivera, the prosecutor st ated that he “asked [Rivera] on redirect, ‘Did you think Chambliss was talking crap about the robbery and the murder?’ [Rivera] said he wasn’t, he was telling the truth.” A. 59.2. While defenda nts submit that in the quoted statement the prosecutor was himself representing that Rivera had been truthful, the statement is more reasonably construed to state th at Rivera had assured the ju ry that he had understood Chambliss to be stating the truth about the robbery and murder. See United States v. Farhane, 634 F.3d at 16 7 (observing that revi ewing court will not “li ghtly infer that every remark is intended to carry its most dang erous meaning” (internal quotation marks omitted)). In short, defendants have failed to demonstrate vouching, much less a denial of due process. The same conclusion obtains for Chamb liss’s challenge to prosecution arguments concerning cooperating witnesses’ motives to tell the truth. In response to defense attacks on these witnesses’ credibility, the prosecutor was entitled to ar gue that they had a strong motive to tell the truth because false testimony would subjec t them to adverse consequences under their cooperation agreemen ts. See United States v. Carr, 424 F.3d 213, 228 (2d Cir. 2005). Third, the prosecutor did not misstate th e evidence by characterizing Young’s prior state convictions for drug crimes as lenien t because the statement was made to urge defendants’ knowledge that dr ug crimes carried lesser penaltie s than robberies and thereby to discredit the defense theory that the Berg mann murder was not part of a robbery. See6 United States v. Myerson, 18 F.3d 153, 163 (2d Cir. 1 994) (rejecting challenge to prosecutor’s comments that sought to expose motive behind defense attack on government case). Additionally, having reviewed the reco rd, we conclude that the prosecutor did not mischaracterize Young’s statem ents about being “hungry” a nd “need[ing] money” or the police officer’s testimony about the color of the cocaine seized from the Bergmann murder. Finally, the prosecutor did not act improperl y in characterizing certain arguments as “red herring[s]” intended to “distract[]” the jury. A. 54, 59.1. See United States v. Williams, 690 F.3d at 75 (“[W]e do not think it im proper or excessive, without more, for a prosecutor to criticize defense ar guments as merely being attemp ts to ‘grasp at straws’ or ‘focus on distractions.’”). Nor did he do so in stating that the defense was “ridicul[ing] police officers,” A. 59.2, in re sponse to the defense’s asser tion that police witnesses were racially biased. See United States v. Farhane, 634 F.3d at 168. Thus, defendants’ challenges to th e rebuttal summation fail on the merits. c. District Court Instructions “As a general matter, we review a properl y preserved claim of error regarding jury instructions de novo, reversing only where, viewing the charge as a whole, there was a prejudicial error.” United States v. Ghaila ni, 733 F.3d 29, 52 (2d Cir. 2013) (internal quotation marks omitted). Where a defendant fa ils to object before the district court, we review only for plain error. See id.7 i. Chambliss Chambliss’s challenge to the instruction on liability under Pinkerton v. United States, 328 U.S. 640 (1946), fails because, consistent with well established law, the district court charged the jury that it could hold a defe ndant liable for acts of his co-conspirators so long as the defendant “could reasonably have foreseen that the substantive crime might be committed by his co-conspirators,” Tr. 2769. See United Stat es v. Coplan, 703 F.3d 46, 71 (2d Cir. 2012); United States v. Parkes, 4 97 F.3d at 232. The c ourt’s instruction that liability could therefore attach even though defe ndant “did not persona lly participate in the acts constituting the crime or did not have actual knowledge of it,” Tr. 2770, was thus proper, and, contrary to Chambliss’s contention, did not permit the jury to find him strictly liable for the acts of his co-conspirators. See United States v. Mittlest aedt, 31 F.3d 1208, 1219 (2d Cir. 1994) (stating that conspirato r is liable for “all unlawful acts of the conspiracy that are reasonably foreseeable, even without direct knowledge of them”). ii. Fuller For the first time on appeal, Fuller asse rts that the district court erroneously explained guilt beyond a reasonable doubt as “an abiding belief of the defendants’ guilt, such as a belief as [sic] a pr udent person would be willing to act upon in important matters in the personal affairs of his or her own life.” Tr. 2717. In reviewing for plain error, we do not identify any error that was “clear or obvi ous.” United States v. Marcus, 560 U.S. at 262. “[S]o long as the court instructs the ju ry on the necessity that the defendant’s guilt be proved beyond a reasonable doub t, the Constitution does not require that any particular8 form of words be used in advising the jury of the government’s burde n of proof.” Victor v. Nebraska, 511 U.S. 1, 5 (199 4) (internal citation omitted). Here, the district court’s use of the phrase “abiding belief” sufficiently conveyed the concep t of reasonable doubt. See United States v. Bright, 517 F. 2d 584, 587 (2d Cir. 1975) (explaining that conviction may not stand without “abiding belief” of defendant ’s guilt); see also United States v. Bright, 528 F. App’x 88, 91 (2d Cir. J une 27, 2013) (approving “abi ding belief” instruction). Indeed, the district court’s other formulations of reasonable doubt, including its use of the common “hesitate to act” langua ge and its contrast with th e preponderance standard in discussing venue, preclude a conclusion that the instruction advers ely affected Fuller’s substantial rights. See Vargas v. Keane, 86 F.3d 1273, 1279 (2d Cir. 1996) (observing that “hesitate to act” formula tion, although subject to some criticism, “has consistently been approved”). Thus, we reject Fuller’s challenge to the district court’s reasonable doubt instruction. iii. Young During its deliberations, the jury asked, “ If we determine that a narcotics conspiracy exists are all members of that conspiracy held accountable fo r any drugs sold or firearms used?” A. 78. In response, the district court in structed the jury, in re levant part, that if a defendant “joins a conspiracy in progress, he is responsible for everything that was done beforehand, if it’s within the scope of what he ’s agreeing to and he’s aware of it.” Id. 98–
99.9 Contrary to Young’s claim that this in struction permitted the jury erroneously to find him responsible for crack cocaine quantities tr afficked by others, th is was an accurate statement of law. See United States v. Jack son, 335 F.3d 170, 18 1 (2d Cir. 2003) (“Under well-established law, Jackson was responsible not only for th e cocaine that he himself conspired to import but also for the cocaine his co-conspirators conspired to import, provided he knew of his co-conspirator’s illic it activities or the activities were reasonably foreseeable by him.”). It is thus immate rial whether the Unite d States Sentencing Commission has taken a contrary position as to application of the Guidelines. See generally United States v. Kinder, 64 F.3d 757, 759 (2d Cir. 1995) (“[T]he amendment to the Guidelines had no effect on the method of determining weight for the purpose of applying the mandatory minimum sentence.”). In any event, the allegedly erroneous instruction did not prejudice Young because, as the district court de termined, the evidence at trial established that he was personally re sponsible for more than 50 grams of cocaine. Accordingly, all defendants’ challenges to the jury instructions fail on the merits. d. Sufficiency of the Evidence We review Young’s and Chambliss’s sufficien cy challenges de novo and will reject the claims as meritless if, “v iewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the e ssential elements of the crime beyond a reasonable doubt.” Jackson v. Virgin ia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United States v. J ones, 531 F.3d 163, 168 (2d Cir. 2008).10 i. Young Young asserts that the evidence supporting his convictions for the narcotics conspiracy charged in Count One, see 21 U. S.C. §§ 841(b)(1)(A), 846, and the Hobbs Act robbery charged in Count Five, see 18 U.S.C. § 1951, is insufficient as a matter of law. We disagree. To prove the Count One narcotics cons piracy, the government had to establish (1) the existence of the conspiracy, (2) defe ndant’s knowing and inten tional joinder in the conspiracy, and (3) that it was “either know n or reasonably foreseeable to the defendant that the conspiracy involved the drug type and quantity charged,” here, 50 grams or more of crack cocaine. United States v. Santos , 541 F.3d 63, 70–71 (2 d Cir. 2008). Young’s challenge focuses on the last requirement and fails because the trial eviden ce shows that over a four-year period numerous conspirators regularly sold crac k cocaine, including cooperating witness Jamaal Manners, who testifie d that he personally sold at least ten to fifteen grams of the conspiracy’s crack cocai ne per week. The jury was entitled to find that these co-conspirators’ narcotics sales we re reasonably foreseeable to Young in light of substantial evidence of his own participation in the conspir acy, including his 2005 arrest for possession of crack cocaine. See id. at 74 (upholding conspiracy conviction where defendant knew that co-consp irator was “heavy-selling” cocaine dealer and defendant “took an active interest” in narcotics trafficked). Young also asserts that the trial evidence was insufficien t to satisfy the interstate commerce element of the Count Five robbery. See 18 U.S. C. § 1951(a); United States v.11 Celaj, 649 F.3d 162, 1 68 (2d Cir. 2011). It is “well esta blished,” however, that the burden of proving a nexus to interstate commerce is “minimal” and is satisfied if “the defendant’s conduct produces any interference with or eff ect upon interstate comme rce, whether slight, subtle, or even potential.” United States v. Celaj, 649 F.3d at 16 8 (internal quotation marks and alterations omitted). Here, Count Five robbery victim Payton testified that he was a crack cocaine dealer a nd that Young and Fuller stole approximately $700 of his narcotics proceeds. This wa s sufficient to satisfy the ne xus requirement. See United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010) (stating th at robbery conspiracy that targets proceeds from cocaine sales “un doubtedly” meets nexus requirement). Accordingly, Young’s sufficien cy challenges are meritless. ii. Chambliss Chambliss’s sufficiency challenges pertain to his convictions for use of a firearm in furtherance of a narcotics conspiracy, charged in Count Two, see 18 U.S.C. § 924(c), and use of a firearm in a robbery resulting in th e Bergmann murder, char ged in Count Eleven, see id. § 924(j). To sustain these convictions, the evidence had to permit a reasonable jury to find that Chambliss (1) personally viol ated § 924(c), (2) aided and abetted a confederate’s violation, or (3) was liabl e under Pinkerton for his co-conspirator’s reasonably foreseeable use of firearms. See United States v. Masotto, 73 F.3d 1233, 1240 (2d Cir. 1996) (explaining aiding and abetting and Pinkerton as dis tinct theories for § 924(c) liability).12 As to aiding and abetting, sufficient evidence supported the jury’s finding that Chambliss (1) assisted the underlying offense or the use, carry, or possession of a firearm (2) with advance knowledge of that firearm-related condu ct. See Rosemond v. United States, No. 12-895, --- U.S. ---, 2014 WL 839184, at *2 (Mar. 5, 2014). Specifically, Chambliss’s knowledge that Young would use a firearm in committing the robbery could reasonably be inferred from, among other things , the fact that Cham bliss recruited Young and Fuller to rob Bergmann (in furtherance of their narcotics conspiracy) only ten days after these confederates had committed another ro bbery at gunpoint. See United States v. Cain, 671 F.3d 271, 302–03 (2d Cir. 2012) (instr ucting that we “must review the evidence in the light most favorable to the government” in assessing sufficiency challenge, mindful that “verdict may be based on circumst antial evidence” (internal quotation marks omitted)); see also United States v. Salameh, 152 F.3d 88, 143 (2d Ci r. 1998) (stating that “as a general rule most evidence of intent is circumstantial”). In urging otherwise, Chambliss argues that the district court’s Pinkerton instruction somehow rendered erroneous its aiding and abe tting charge. In fact, a review of the charge demonstrates that the district cour t clearly identified aiding and abetting and Pinkerton as distinct theories of liability. As to the former, the distri ct court instructed, in accordance with United States v. Medina, 32 F. 3d 40, 45 (2d Cir. 1994), that such liability attached under § 924(c) if the defendant “perfo rmed some act that fa cilitated or encouraged the actual using, carrying of, or possession of the firearm in rela tion to the underlying crime,” Tr. 2758. By finding that Chambliss encour aged the “actual using, carrying of, or13 possession” of a firearm in the Bergmann robbery, the jury necessarily al so had to find that he had advance knowledge of the firearm-rela ted conduct, consiste nt with the Supreme Court’s explication in Rosemond. In any event, even if th ere had been error regarding aiding and abetting, it was harmless because ample evidence supported Chambliss’s liability under Pinkerton. See Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (applying harmless error standard where jury returned general guilty verdict after being instru cted on alternative theo ries of guilt, one of which was erroneous); accord Un ited States v. Vilar, 729 F.3d 62, 79 (2d Cir. 2013); cf. Rosemond v. United States, 2014 WL 839184, at *11 (remanding for lower courts to consider whether “any error in the court’s aidi ng and abetting instruction was harmless”). The aforementioned trial eviden ce demonstrates that it wa s reasonably foreseeable to Chambliss that the armed robbers he recru ited for the Bergmann robbery would use a firearm in that crime. S ee United States v. Parkes, 497 F.3d at 232 (stating that confederates’ killing was “necessary or natural consequence of the unlawful agreement” to commit armed robbery sufficient to establish Pinkerton liab ility (internal quotation marks omitted)). Accordingly, Chambliss’s sufficien cy challenges fail on the merits. 2. Defendants’ Sentencing Challenges We review defendants’ sentences for “reas onableness,” “a particularly deferential form of abuse-of-discretion revi ew” that we apply both to the procedures used to arrive at the sentence and to the substantive length of the sentence. United States v. Cavera, 55014 F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc); accord United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012). a. Procedural Reasonableness In reviewing for procedural reasonablene ss, we review de novo challenges to the district court’s statutory interpretation. See United States v. Cassesse, 685 F.3d 186, 188 (2d Cir. 2012). i. Young’s Mandatory Consecutive 25-year Sentence Under § 924(j) Young asserts that the district court committed procedural error in imposing a 25-year consecutive sentence for the Count Eleven Bergmann murder under 18 U.S.C. § 924(j) because that provision does not in corporate § 924(c)’s penalty enhancements, specifically, 25-year minimum sentences for “s econd or subsequent” § 924(c) convictions, 18 U.S.C. § 924(c)(1)(C)(i), and mandato ry consecutive sentencing, see id. § 924(c)(1)(D)(ii). The statute does not support this contention. Section 924(j)(1) authorizes the death penalty or life in prison for murder committed “in the course of a violatio n of subsection (c).” Id. § 924(j)(1). This unqualified reference to § 924(c) incorporates the entirety of that subsection, including its enhanced penalties, and thus defeats Young’s claim of procedural error. See United States v. Robinson, 702 F.3d 22, 31 (2d Cir. 2012) (stating that statutor y interpretation is “holistic endeavor” in which courts must consider “not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme” (internal quotation marks omitted)); see also United States v. Berrios, 676 F.3d 118, 140–41 (3d Cir. 2012)15 (holding that § 924(j)’s reference to § 924( c) incorporates latter provisions’ penalty enhancements, including consecutive senten ce mandate, § 924(c)’s “veritable raison d’etre”). In light of this explicit incorpora tion, § 924(j)’s failure to repeat the penalty enhancements set forth in § 924(c) does not evince Congressiona l intent to permit concurrent sentencing and to eliminate mandatory minimum se ntences. See United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001) (“Although § 924(j) does not explicitly contain the same express mandatory cu mulative punishment language as found in § 924(c), it incorporates § 924(c) by reference without disclaiming the cumulative punishment scheme which is so clearly set out in § 924(c).”), vacated on other gro unds, 536 U.S. 953 (2002). But see United States v. Julian, 633 F.3d 1250, 1253 (11th Cir. 2011) (concluding that statutes’ plain language establishes § 924(j) as separate offense not subject to § 924(c)’s penalty enhancements). This conclusion finds further support in th e fact that Young’s proposed construction would apply § 924(c)’s senten cing enhancements to a defend ant who uses a firearm in a crime of violence, but not one wh o murders in such situations, an unlikely result we aim to avoid. See United States v. Al Kassar, 660 F.3d 108, 125 (2d Ci r. 2013) (interpreting statute “to prevent absurd results”); see al so United States v. Berrios, 676 F.3d at 118 (characterizing such § 924(j) interpretation as “anomalous”); United States v. Battle, 289 F.3d 661, 668 (10th Cir. 2002); United St ates v. Allen, 247 F.3d at 769. Accordingly, although § 924(j)’s author ization of the death penalty and life imprisonment likely indicates that it is a st and-alone offense whose elements must be16 found by a jury beyond a reas onable doubt, see generally A pprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding facts that in crease statutorily-authorized maximum penalty elements of separate offense), that provision incorporates the penalty enhancements of § 924(c), and thus the district court did no t err in sentencing Young to a consecutive 25-year prison term for Count Eleven. In urging the contrary, Young asserts that § 924(j) does not mandate minimum and consecutive sentences because to hold othe rwise would render superfluous § 924(c)(5), which, like § 924(j), authorizes the death pena lty and life imprisonment for death caused by armor-piercing bullets. See 18 U.S.C. § 924(c)(5); United St ates v. Julian, 633 F.3d at 1255–56. But the statutes gove rn distinct circumstances as § 924(j) criminalizes murder through use of a firearm and § 924(c)(5) punis hes death caused by certain ammunition. That the two provisions may both apply to one set of facts does not render either unnecessary; indeed, federal statutes frequently overlap. See United States v. Kim, 193 F.3d 567, 573 (2d Cir. 1999) (stating that statutes “may ‘overlap’ or enjoy a ‘partial redundancy,’ . . . and yet be ‘fully capable of coexisting’” (quoting United States v. Batchelder, 442 U.S. 1 14, 118, 122 (1979)). In any event, vacatur for re-sentencing is unnecessary because any error in the district court’s construction of § 924(j) wa s harmless. If, as Y oung urges, § 924(j) establishes a separate offense not bound by § 924(c)’s penalty enhancements, then the district court would not have dismissed after trial Count Ten, which charged a violation of § 924(c) for the Bergmann murder, as a lesser-i ncluded offense of Count Eleven, and thus17 would have been required to impose a consecu tive prison sentence of at least 25 years on Count Ten. See 18 U.S.C. § 924(c)(1)(C)(i), (D)(ii); see also United States v. Julian, 633 F.3d at 1256 (“Our interpretation of section 92 4(j) does not prevent a district court from imposing a sentence under section 924(c) that mu st run consecutive to a separate sentence imposed under section 924(j).”). Accordingl y, regardless of whether Young should have been sentenced on Count Eleven under § 92 4(j) or on Count Ten under § 924(c), the district court was obliged to impose a cons ecutive sentence of at least 25 years, rendering any asserted procedural error harmless. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009). For these reasons, Young’s challenge to his 25-year consecutive sentence for the Bergmann murder charged in Count Eleven fails. ii. Young’s and Fuller’s Mu ltiple § 924(c) Convictions Young and Fuller assert that the district court erred in imposing multiple sentences for use of firearms in furtherance of a narc otics conspiracy (Count Two), and the Payton, Cy Sherrill (as to Fuller only), and Bergmann robberies (Counts Six, Eight, and Eleven, respectively). Young maintain s that the jury must have convicted him under Count Two for the same conduct underlying either Co unt Six or Count Elev en, thereby requiring vacatur of one of the latter § 924(c) conv ictions. Fuller asserts generally that the government may not pursue in a single indict ment multiple consec utive sentences with enhanced mandatory minimum penalties under § 924(c). The law does not support these arguments.18 Separate convictions unde r § 924(c) ordinarily trigger mandatory minimum, consecutive sentences: 5 years for a first o ffense and 25 years for each subsequent infraction. See 18 U.S.C. § 924(c)(1). Cont rary to Fuller’s contention, multiple § 924(c) convictions may stem from a single indictment . See United States v. Bernier, 954 F.2d 818, 819–20 (2d Cir. 1992). To be sure, two § 924(c) conv ictions that are based on a “single unit of prosecution,” i.e., that “puni sh a defendant twice for continuous possession of a firearm in furtherance of co-terminous predicate offenses involving essentially the same conduct,” cannot stand. United States v. Wallace, 447 F.3d 184, 187–88 (2d Cir. 2006) (internal quotation marks omitted); see al so United States v. Finley, 245 F.3d 199, 208 (2d Cir. 2001) (stating that Congress did not intend to impose multiple consecutive sentences for two criminal infractions that “are so inseparably intertwined”). But Young’s Count Two conviction, which alleged di scharge of a firearm in furtherance of the Count One narcotics conspiracy, was not nece ssarily based on the conduct underlying the other § 924(c) convictions. Notably, eviden ce was adduced that Yo ung pleaded guilty to possession of a firearm on Elm Street, where ma ny witnesses testified that Young had also trafficked narcotics. Indeed, Young separa tely pleaded guilty to possession of crack cocaine near Elm Street. The robberies at issu e in Counts Six and El even did not occur on Elm Street. Thus, the evidence permitted a reasonable jury to find that the predicate conduct underlying Count Two was not the sa me conduct referred to in Counts Six and Eleven. See United States v. Mejia, 545 F. 3d 179, 205–06 (2d Cir. 2008) (upholding19 multiple § 924(c) convictions where defendan t committed three separa te assaults, even though they were connect ed by single conspiracy). In urging otherwise, Young stresses that th e only direct evidence of the discharge of a firearm relates to the Bergmann murder, arguing that the § 924(c) conviction for the offense charged in Count Two must be predicated on the conduct supporting either the convictions for the offenses ch arged in Count Six or Count Eleven. But direct evidence was not necessary for th e jury to find the C ount Two conduct distinct from that charged in Counts Six and Eleven. See United States v. Cain, 671 F.3d at 303 (recognizing that verdict may be based only on circumstantial evidence). Because we must resolve all reasonable inferences from the ev idence in favor of the verdic t, see id. at 302, Young’s challenge fails. 1
iii. Consideration of Fu ller’s Youthful Offense Fuller also asserts for the first time on appeal that his youthful offender status when sentenced to one year in prison on his 200 3 state conviction for possession of a controlled substance mandates the conclusion that he did not commit a “felon y drug offense” and therefore was not eligible for a 20-year manda tory minimum sentence for Count One. See

1 Young’s failure to request a jury instruction explaining that the conduct underlying Count Two must be distinct from that suppor ting Counts Six and Eleven reinforces this conclusion. See United States v. Washi ngton, 861 F.2d 350, 352–53 (2d Cir. 1988) (explaining that “where an impermissible basi s of conviction arises from an insufficiency of evidence and a valid basis remains on an a lternative theory, a defe ndant must request the trial judge not to submit the invalid basis to th e jury or else the objection will be deemed waived”); accord United States v. Irv ing, 554 F.3d 64, 77 (2d Cir. 2009).20 21 U.S.C. § 841(b)(1)(A) (p roviding 20-year mandatory minimum for § 841(a) violation “after a prior conviction for a felony drug offense”). Fuller’s claim warrants no extended discussi on because, as he recognizes, we have previously rejected this preci se argument. See United Stat es v. Jackson, 504 F.3d 250, 253 (2d Cir. 2007) (reaching “log ical conclusion” that “youthf ul offender adjudication is a prior ‘felony drug offense’”); United States v. Sampson, 385 F.3d 183, 194–95 (2d Cir. 2004) (concluding that criminal conduct un derlying youthful offender adjudication qualifies as “felony drug offense”). Although Fuller contends that Jackson and Sampson were wrongly decided, these d ecisions bind this panel unle ss and until they are overruled by this court en banc or by the Supreme Court. See Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011). iv. Alleyne Challenges In his reply brief, Chambliss asserts that his 18 U.S.C. § 924(j ) conviction for the Bergmann murder must be vacated in light of Alleyne v. United St ates, 133 S. Ct. 2151, 2163–64 (2013), which held that any fact in creasing the mandatory minimum sentence is an element of the crime and mu st be found by the jury beyond a reasonable doubt. Young joins in this argument to challenge his conviction for the Bergmann murder and for the use of a firearm during the Payton robbery. Th e argument fails because these defendants’ § 924 convictions, which triggered mandatory minimum, consecutive sentences of 25 years for the Bergmann murder and the use of a firearm during the Payton robbery, see 1821 U.S.C. § 924(c)(1)(C)(i) (m andating 25-year sentence fo r “second or subsequent conviction” under § 924(c )), were found by the jury , not the district court. v. Retroactive Application of the Fair Sentencing Act Young and Chambliss challenge the district court’s refusal retroactively to apply the Fair Sentencing Act of 2010, which would have reduced the mandatory minimum sentence for their Count One narcotics conspiracy convictions from ten to five years. The government concedes error in light of Dorsey v. United St ates, 132 S. Ct. 2321, 2331 (2012) (concluding that Fair Sentencing Act applies to all defendants sentenced after enactment), but argues harmlessne ss because the district court indicated that it would have imposed the same sentence on that count of conviction regardless of the mandatory minimum penalty. “Where we identify procedural error in a sentence, but the record indicates clearly that ‘the district court would have imposed the same sentence’ in any event, the error may be deemed harmless . . . .” United States v. Jass, 569 F.3d at 68 (q uoting United States v. Cavera, 550 F.3d at 197). This is such a ca se. In stating the reasons for its 10-year sentence on Count One, the distri ct court clearly stated that “t his is probably one of the rare cases where I actually would find independently that a minimum of ten years is appropriate given the nature of and length of the drug deali ng in this case.” A. 22 3. The district court further noted with respect to Young and Chambliss that it wa s reducing the sentences on certain counts in contemplation of the manda tory consecutive sentences required on other counts because it was imposing a sentence that was essentially a “sentencing package.”22 Taking these statements together, we can “conf idently conclude” that the district court’s application of a 10-year mandatory minimu m sentence for the narcotics conspiracy constitutes harmless sentencing error. United States v. Jass, 569 F.3d at 68. b. Fuller’s Substantive Reasonableness Challenge In challenging the substantive reasonablen ess of his 100-year prison sentence, Fuller bears a heavy burden be cause we will set aside a district court’s substantive determination only in exceptiona l cases where the trial court’s decision “cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted); see Un ited States v. Jone s, 531 F.3d at 174 (recognizing that broad range of sentences can be reasonable in particular case). Thus, we do not substitute our own judgment for that of the sentencing court; we ask only whether challenged sentences are so “shockingly high, shockingly low, or otherwise unsupportable as a matter of law,” that allowing them to stand would “damage the administration of justice.” United States v. Riga s, 583 F.3d 108, 123 (2d Cir. 20 09); accord United States v. Broxmeyer, 699 F.3d at 289. That is not this case. Fuller asserts that his sentence was substa ntively unreasonable because the district court failed to give sufficient mitigating wei ght to his troubled upbringing and positive behavior in prison. To the contrary, the dist rict court specifically considered such facts and weighed them in its decision to impose the sentence. “The weight to be afforded any given argument made pursuant to one of the § 3553(a) factor s is a matter firmly committed to the discretion of the senten cing judge and is beyond our revi ew, as long as the sentence23 ultimately imposed is reasonable in light of all the circumstances presented.” United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). Indeed, the district court was required to impose at least a 90- year sentence by virtue of th e fact that § 924(c) requires that the mandatory minimum sentences for th e convictions for the offenses charged in Count One (10 years), Count Tw o (5 years), Count Six (25 ye ars), Count Eight (25 years), and Count Eleven (25 years), be applied consec utively. Thus, we identify no substantive error in the district court’s decision to impose ten years above th e effective minimum. 3. Conclusion We have considered defendants’ remaini ng arguments and conclude that they are without merit. We therefore AFFIRM the judgments of the district court.
FOR THE COURT: CATHERINE O = HAGAN WOLFE, Clerk of Court