1

22-473-cr (L)

United States v. Sumpter

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 

6th day of October, two thousand twenty-three.

Present:

BARRINGTON D. PARKER,

WILLIAM J. NARDINI,

Circuit Judges.

*

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 22-473-cr (L),

22-735-cr (Con)

TYRELL SUMPTER, AKA RELL, AKA

RUGER, MAURICE CURTIS, AKA MO,

Defendants-Appellants.

†

_____________________________________

For Appellee: JUN XIANG (Matthew J.C. Hellman, Elinor L. 

Tarlow, David Abramowicz, on the brief), Assistant 

United States Attorneys, for Damian Williams,

United States Attorney for the Southern District of 

New York, New York, N.Y. 

* Because the third judge originally assigned to this panel is recused from this case, the remaining two 

judges, who are in agreement, issue this order in accordance with Second Circuit Internal Operating Procedure E(b).

† The Clerk of Court is respectfully directed to amend the official caption as set forth above. 
2

For Defendants-Appellants: DANIEL S. NOOTER (Lisa Scolari, Law Office of Lisa 

Scolari, New York, NY, on the brief), Washington, 

D.C. for Defendant-Appellant Tyrell Sumpter.

Robert J. Boyle, New York, N.Y. for DefendantAppellant Maurice Curtis.

Appeal from judgments of the United States District Court for the Southern District of New

York (Richard J. Sullivan, Circuit Judge, sitting by designation).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgments of the district court are AFFIRMED.

This consolidated case is comprised of two appeals, one from Defendant-Appellant Tyrell 

Sumpter and the other from Defendant-Appellant Maurice Curtis. Because the claims raised by 

each appellant are distinct, we address each appeal separately below. We assume the parties’ 

familiarity with the case.

I. Tyrell Sumpter

Sumpter appeals from a March 2, 2022, judgment of the United States District Court for 

the Southern District of New York (Richard J. Sullivan, Circuit Judge, sitting by designation), 

following his guilty plea pursuant to a plea agreement to one count of possessing, using, and 

carrying firearms, which were brandished and discharged, and aiding and abetting the same, in 

furtherance of a drug trafficking conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. 

The district court sentenced Sumpter to twelve years of imprisonment, followed by five years of 

supervised release. Sumpter appeals, challenging the sentence as both procedurally and 

substantively unreasonable. 
3

“We review the procedural and substantive reasonableness of a sentence under a deferential 

abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018). 1

 “A 

sentence is procedurally unreasonable if the district court . . . selects a sentence based on clearly 

erroneous facts[.]” United States v. Vinales, 78 F.4th 550, 552 (2d Cir. 2023). The district court’s 

“finding of fact is clearly erroneous only if the appellate court is left with the definite and firm 

conviction that a mistake has been committed.” United States v. Rizzo, 349 F.3d 94, 98 (2d Cir. 

2003). Under this “extremely deferential standard of review,” we will affirm the district court’s 

findings of fact if it “is plausible in light of the record viewed in its entirety.” Id. 

When reviewing whether a sentence is substantively reasonable, we are “particularly 

deferential” and set aside “only those sentences that 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. Muzio, 966 F.3d 61, 64 (2d Cir. 2020). We are mindful 

that “[t]he particular weight to be afforded aggravating and mitigating factors is a matter firmly 

committed to the discretion of the sentencing judge.” United States v. Broxmeyer, 699 F.3d 265, 

289 (2d Cir. 2012). 

a. Procedural Unreasonableness

Sumpter argues that the district court’s sentence is procedurally unreasonable because it is 

based, in part, on a clearly erroneous finding of fact that Sumpter participated in ordering his coconspirator, Tyquan Robinson, to be killed. During an evidentiary hearing, the government 

produced a number of wiretap calls, including one in which Sumpter told his co-conspirator, 

Tyshawn Burgess, that he had “pressed the button” on Robinson. App’x 221. Sumpter contends 

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and 

citations.
4

that the court erred in reading the phrase “pressed the button” to mean that he authorized 

Robinson’s killing. 

We discern no error, much less clear error, in the district court’s finding. In a wiretapped 

call on February 9, 2018, Burgess reported to another co-conspirator, Maurice Curtis, that Sumpter 

suspected that Robinson was cooperating with law enforcement. In another call, Burgess reiterated 

that Sumpter thought Robinson was “a rat” and wanted to lure Robinson to be assaulted. During 

a call a month later, when Burgess reported continuing suspicions of Robinson, Sumpter appeared 

to state that he would not take action against Robinson unless he saw paperwork proving that 

Robinson had cooperated. But a week later, on April 11, 2018, Sumpter told Burgess that he 

believed a co-conspirator had obtained precisely such paperwork; when Burgess denied that the 

co-conspirator had said that, Sumpter reacted with surprise and said that he had “just pressed the 

button” on Robinson. Burgess reassured Sumpter that Robinson probably had cooperated. Less 

than two hours after hearing this tapped call, law enforcement visited Robinson to warn him of the 

possible threat to his life. Shortly thereafter, Sumpter called Burgess to inform him of law 

enforcement’s visit and convey his suspicions that one of his phones was tapped. When asked 

why he believed his phone was tapped, Sumpter appeared to speculate that his April 11, 2018, call 

was the reason for law enforcement’s warning to Robinson that people were trying to kill him. 

Based on these calls, it is certainly plausible—and even obvious—that “pressed the button” meant 

to put out a hit on someone or, in other words, to order him killed.

Reinforcing this common-sense interpretation of the recorded calls, the government 

produced additional evidence regarding the meaning of “pressed the button.” A law enforcement 

agent testified that, based on her prior investigations, she knew that “pressed the button” meant to 

“push the green light and to kill the person,” in the sense of giving the approval or go-ahead. App’x
5

at 118. Sumpter claims that the agent’s testimony was conclusory and speculative because she 

was unable to identify exactly from which investigation and from whom she learned the meaning 

of the phrase. We disagree. The agent testified to her experience as a special agent, noting that 

she had been involved in “over a hundred” investigations. App’x at 100. The fact that she could 

not remember exactly from whom or where she learned the meaning of the phrase—which, in any 

event, becomes clear in the context of all these wiretapped calls—does not suggest that she lacked

foundation or credibility on this matter.

b. Substantive Unreasonableness

Sumpter claims that the district court’s sentence was substantively unreasonable for 

multiple reasons, none of which we find persuasive.

Sumpter argues that the district court placed too much weight on the allegations that he 

ordered Robinson to be killed, because that conduct was not charged in the indictment and the 

government allegedly failed to provide him with reasonable notice that it would rely so heavily on 

those allegations at sentencing. Sumpter raises this argument under the heading of substantive 

unreasonableness, though it effectively states a procedural claim. However characterized, the 

claim has no merit. As to the first point, it is well settled that a district court can consider uncharged 

conduct at sentencing if proven by a preponderance of the evidence. See 18 U.S.C. § 3661 (“No 

limitation shall be placed on the information concerning the background, character, and conduct 

of a person convicted of an offense which a court of the United States may receive and consider 

for the purpose of imposing an appropriate sentence.”). As to the second point, Sumpter had ample 

notice that such allegations would be an issue at sentencing. The plea agreement reserved each 

party’s right to seek a sentence outside the stipulated Guidelines range; the government raised the 

issue in a filing before sentencing; and Sumpter availed himself of the opportunity to respond fully 
6

both during the evidentiary hearing and in his own sentencing submissions. Cf. United States v. 

Reiss, 186 F.3d 149, 156 (2d Cir. 1999) (stating that in the context of a purported Fed. R. Crim. P. 

32 violation, a defendant is adequately warned of departures from the applicable Guidelines range 

when such departures are mentioned “by the [presentence report], by the prosecution’s 

submissions, or by the court sua sponte”). 

Sumpter also argues that the district court erred by finding that he participated in a shooting 

in 2016. During the evidentiary hearing, the government introduced a recorded prison call in 

which Burgess described the shooting, stating that he and Sumpter had participated. Sumpter 

contends that the district court should not have credited Burgess’s statements. But credibility 

determinations are the province of the district court, and we see no clear error in its findings. As 

the district court reasoned, Burgess had no incentive to lie about Sumpter’s involvement in the 

shooting, and Burgess’s statements were corroborated by evidence that a shooting had occurred 

around the same time and location that he described. 

Sumpter’s other arguments concern how the district court weighed certain factors in 

reaching its sentence. Sumpter first argues that the district court failed to take into account his 

service of a three-year state sentence for the same conduct underlying the § 924(c) charge in this 

case. But the district court explained that it had indeed taken that sentence into account; it 

justifiably gave it little mitigating value, given that Sumpter participated in the 2016 shooting less 

than a month after he was released from state custody. Sumpter next argues that the district court 

improperly considered his conduct related to the underlying drug trafficking conspiracy because 

of its dissatisfaction with the plea agreement. But the district court’s sentence reflects nothing 

more than an appropriate concern to craft a sentence that accurately reflected the totality of 

Sumpter’s conduct. 
7

II. Maurice Curtis

Curtis appeals from a March 28, 2022, judgment of conviction of the United States District 

Court for the Southern District of New York (Richard J. Sullivan, Circuit Judge, sitting by 

designation), following his guilty plea to a two-count information. Count One charged Curtis with 

conspiracy to distribute and possess with intent to distribute at least 280 grams of crack cocaine, 

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Count Two charged him with 

possessing and aiding and abetting the possession of firearms, which were brandished and 

discharged, in furtherance of the drug-trafficking conspiracy charged in Count One, in violation 

of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii) and 2. The district court sentenced Curtis to two consecutive 

sentences of ten years in prison, followed by five years of supervised release. Curtis appeals only 

his conviction on the § 924(c) charge. 

Curtis argues on appeal that there was an insufficient factual basis to show that he intended 

that a firearm be discharged during a shooting perpetrated by his drug co-conspirators, and so the 

district court therefore erred in accepting his guilty plea to aiding and abetting a § 924(c) offense

based on brandishing and discharging a firearm. As a threshold matter, it appears that Curtis 

affirmatively waived this argument before the district court. On more than one occasion during 

the sentencing hearing, the district court asked defense counsel whether there was sufficient 

evidence to support Curtis’s liability for aiding and abetting a firearm discharge. Defense counsel 

responded that “it was legally sufficient for [Curtis] to plead out to the discharge,” App’x at 195, 

and expressly disclaimed any argument that the ten-year minimum under § 924(c)(1)(A)(iii) did 

not apply to Curtis. Curtis therefore “intentional[ly] relinquished” the argument that there was an 

inadequate factual basis for his guilty plea to Count Two, and review of his claim on appeal is 

wholly foreclosed. United States v. Olano, 507 U.S. 725, 733 (1993).
8

Even if Curtis did not affirmatively waive that argument, he certainly failed to raise it 

before the district court, and so his unpreserved claim would be reviewable at best for plain error 

under Federal Rule of Criminal Procedure 52(b). To demonstrate plain error, “an appellant must 

demonstrate that (1) there was error, (2) the error was plain, and (3) the error prejudicially affected 

his substantial rights; if such error is demonstrated, we will reverse . . . only when (4) the error 

seriously affected the fairness, integrity or public reputation of judicial proceedings.” United 

States v. Aybar-Peguero, 72 F.4th 478, 484 (2d Cir. 2023). We discern no error, plain or otherwise, 

in the district court’s determination that a factual basis supported Curtis’s guilty plea.

At issue in this appeal is whether there was a sufficient factual basis supporting Curtis’s 

guilty plea to aiding and abetting a firearm discharge in furtherance of a drug trafficking 

conspiracy, in violation of §§ 924(c)(1)(A)(i)-(iii) and 2. To commit that offense, a defendant

must “(1) take[] an affirmative act in furtherance of that offense, (2) with the intent of facilitating 

the offense’s commission.” Rosemond v. United States, 572 U.S. 65, 71 (2014). “[T]he intent 

must go to the specific and entire crime charged—so here, to the full scope (predicate crime plus 

gun use) . . . .” Id. at 76. The intent requirement is satisfied, for example, when “[a]n active 

participant in a drug transaction . . . knows that one of his confederates will carry [and here, 

discharge] a gun.” Id. at 77. Notably, the defendant’s knowledge of the gun “must be advance 

knowledge” or, in other words, “knowledge that enables [the defendant] to make the relevant legal 

(and indeed, moral) choice,” such as “opt[ing] to walk away.” Id. at 78. 

Curtis concedes that he took an affirmative act in furtherance of the § 924(c) offense by 

selling drugs as a member of the drug conspiracy charged in Count One, and that this admission 

satisfied the first requirement of Rosemond. But he claims that there is no basis for concluding 

that his intent extended to the discharge of a weapon, as required for a violation of § 924(c) that 
9

carries a ten-year mandatory minimum penalty. Curtis relies entirely on an incident on May 28, 

2017, which he described during his plea colloquy. As Curtis told the district court: “members of 

my group noticed a member of a rival neighborhood group that sold drugs and decided to get a 

gun and follow him. I was there. I knew that after they got the gun, that they would use that gun, 

and they did by firing it.” App’x at 90. Curtis argues that although he admitted during his colloquy 

that he had foreknowledge that his co-conspirators had a firearm and were going to discharge it, 

he later stated (during his testimony in another case) that he walked in the opposite direction—

away from the shooting. This, he claims, demonstrates that he lacked any intent to aid or abet the 

shooting. 

Even assuming that we could consider facts outside the record presented to the district 

court at the time of the guilty plea, Curtis’s argument fails on the merits. His plea allocution was 

based on far more than the single incident on May 28, 2017. During his plea hearing, Curtis 

admitted more broadly that he had participated in the underlying drug conspiracy from 2011 to 

2018; that during that same period, his group of drug conspirators “used and carried guns to protect 

our drug territory and business”; that he “also knew that sometimes different members of the group 

brandished and discharged or fired these guns to protect our drug territory and business,” and he 

“knew that happened on multiple occasions.” App’x 90. He described the May 28, 2017, incident 

only as an “example” of those “multiple occasions.” Id. Because Curtis admitted that he had 

knowledge of “multiple” shootings by his co-conspirators, yet continued to participate in the drug 

conspiracy over a period of years that extended from 2011 to 2018—that is, even after he became 

aware of the shootings, including the 2017 episode—there was an ample factual basis to conclude 

that he intended to facilitate a § 924(c) offense that involved discharge of a firearm.

* * *
10

We have considered Sumpter’s and Curtis’s remaining arguments and find them 

unpersuasive. Accordingly, we AFFIRM the judgments of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk