18-3702 United States v. Russell 

### 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 AFTER JANUARY 1, 2007, IS PERMITTED 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 APPENDIX OR AN ELEC TRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t 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 March, two thousand twenty.
Present: ROBERT A. KATZMANN, Chief Judge , AMALYA L. KEARSE, JOSEPH F. BIANCO, Circuit Judges

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_____________________________________ UNITED STATES OF AMERICA, Appellee , v. 18-3702 RASHEED BAILEY, A KA CIROC, WILLIAM BRYANT, AKA KENNY, KEVIN CHAVIS, JEFFREY CHILDS, AKA PAP, TYRONE GLADDEN, AKA TY BOOGIE, AKA TY ZOOTED, TRAVIS HARRY, AKA TRAV GAME, RICHARD HILL, MIC HAEL JOHNSON, AKA AIR, KEVIN LEWIS, AKA ICE, DONTE MCGILL, TORELL NIUELDER, AKA YOUNG, AKA RELLI, TUQUAN ROGERS, AKA TAY, DONALD ROSE, LUKE BRYANT, AKA BERGER, KEVIN SAXON, AKA SAX, ANDREW SINGLETON, AKA DREW, SEON THOMAS, AKA CEE, AKA GOON, HENRY TRENTON, AKA KAY, AKA KELS, RENE2 VELEZ, AKA WHITE BOY, TREVOR WATSON, AKA TREV WILD, TYLER WILLIAMS, AKA TY CRACKS, Defendants , JAMAL RUSSELL, AKA MALLY, Defendant-Appellant

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_____________________________________ For Appellee: A DAM H OBSON (Amanda Houle, Daniel B. Tehrani, on the brief ), Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. For Defendant-Appellant: K ENNETH C ARUSO , White & Case LLP, New York, NY. Appeal from a judgment of th e United States District Court for the Southern District of New York (Woods, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Jamal Russell appeals from a judgment of the United States District Court for the Southern District of New York (Woods, J .), sentencing Russell principall y to 120 months’ imprisonment after a jury convicted Russe ll of conspiracy to dist ribute and possess with in tent to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). 1 We assume the parties’ familiarity with the underlying facts, the procedural history of the case , and the issues on appeal. Russell first argues that the district court a bused its discretion by ad mitting evidence that he committed an armed robbery at the Lincoln Houses on January 29, 2013. We disagree and

1 The jury acquitted Russell of possessing a fire arm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.3 affirm the district court’s ruling that the cha llenged evidence was admissible under Federal Rule of Evidence 404(b). Under Rule 404(b), “[e]vide nce of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). But such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id . 404(b)(2). “The Second Circuit evaluates Rule 404(b) evidence under an inclus ionary approach and allows evidence for any [proper] purpose other than to show a defendant’s criminal propensity.” United States v. Garcia , 291 F.3d 127, 136 (2d Cir. 2002). 2 “To determine if the court properly admitted prior act evidence pursuant to Rule 404(b), we consid er whether: (1) the prior act ev idence was offered for a proper purpose; (2) the evidence was relevant to a disput ed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice ; and (4) the court administered an appropriate limi ting instruction.” Id. The district court correctly c oncluded that the challenged ev idence was admissible to show Russell’s opportunity to access fir earms during the charged conspira cy and was relevant to both charges against him. This Court has regularly affirmed th e admission of fire arms possession to establish that the defendant had the opportunity to access firearms. See United States v. Barrett , 750 F. App’x 19, 23 (2d Cir. 2018); United States v. Zappola , 677 F.2d 264, 270 (2d Cir. 1982); United States v. Robinson , 560 F.2d 507, 513 (2d Cir. 1977) (en banc ). Moreover, it was not error to conclude that the probative value of the ev idence substantially outweighed the danger of unfair prejudice in this case. The district court issued a limiting instruction stati ng that the jurors “may

2 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations.4 not consider this evidence as proof that the defe ndant had a bad character or that he must have committed the crimes with which he is charged here because he was previously convicted of separate offenses.” Dist. Ct. Dkt. No. 673, at 603:7-10. It further explained that Russell’s possession of a firearm was not sufficient to conv ict him of possessing a firearm in furtherance of a drug trafficking crime. Under these circumstances, the distri ct court did not err in admitting the challenged evidence. Russell next argues that the district court comm itted procedural error in imposing its belowGuidelines sentence because it incorrectly (1) found him to be a career offender; (2) calculated the drug quantity attributable to him; and (3) appl ied an obstruction of justice adjustment under § 3C1.1 of the Sentencing Gu idelines after finding that Russell had threatened a trial witness. We address these arguments in turn. In reviewing these challenges, “our standard is reasonablene ss, a particularly deferential form of abuse-of-discretion review that we appl y both to the procedures used to arrive at the sentence (procedural reasonabl eness) and to the length of the sentence (substantive reasonableness).” United States v. Broxmeyer , 699 F.3d 265, 278 (2d Cir. 2012). A district court commits procedural error where it improperly calculates the Senten cing Guidelines range, fails to consider the factors enumerated in 18 U.S.C. § 3553(a), rests its senten ce on a clearly erroneous finding of fact, or fails adequately to explain its chosen sentence. United States v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Where a defendant fails to raise his procedural reasonableness challenge below, we review for plain error. United States v. Degroate , 940 F.3d 167, 174 (2d Cir. 2019). “To establish plain error, a defendant must demonstrate that : (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the defendant’s substan tial rights, which in the ordinary case means it affected the5 outcome of the district court pro ceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. We, however, do not apply the plain error doctrine stringently in the sentencing context. See United States v. Wernick , 691 F.3d 108, 113 (2d Cir. 2012). Russell argues for the first time on appeal that he may have withdrawn from the conspiracy when he was incarcerated on February 5, 2013, and therefore his subsequent January 26, 2015 convictions do not qualify as “pri or” convictions necessary to qua lify as a career offender under § 4B1.1(a) of the Guidelines. However, defense counsel affirmatively acknowledged that Russell qualified as a career offender under the Guid elines at sentencing. See App’x 213 (“By the technical letter of the law Mr. Russell is a career offende r. There was no objection from the defense on that. No matter how much research I did, I couldn’t find anything to refute that. The Second Circuit case law says that’s what it is. Basically ever y case, every circuit.”). Russell’s challenge is therefore waived, and we do not address it. See United States v. Thomas , 54 F.3d 73, 82 (2d Cir. 1995). Russell next argues that there was insufficient evidence for the district court to attribute between 112 and 196 grams of crack cocaine to him. 3 Russell likewise waived this factual challenge by failing to object to the drug qua ntity attributable to him at sentencing. See United
States v. Jass , 569 F.3d 47, 66 (2d Cir. 2009) (“When a defend ant fails to challe nge factual matters contained in the presentence report at the time of sentencing, the defend ant waives the right to contest them on appeal.”).

3 In his brief, Russell states that we need not address his argum ents concerning drug quantity and the district court’s a pplication of an obstruction of just ice adjustment if we affirm the district court’s adjudication of Russell as a career offender. We nonetheless reach these arguments and reject them.6 Finally, Russell argues that the district court made inadequate findings of fact to apply a two-level obstruction of justice adjustment under § 3C1.1 of the Guidelines. The district court found, after a Fatico hearing, that the govern ment had established by a preponderance of the evidence that Russell “called [a coop erating] witness a rat and threatened to kill him” on multiple occasions. App’x 197. In doing so, th e district court found the test imony of the witness at the
Fatico hearing to be “fully credible.” Id. at 196. Such findings of fact and credibility determinations are entitled to deference, a nd in these circumstances , we have no difficulty affirming the court’s applic ation of the adjustment. See United States v. Agudelo , 414 F.3d 345, 350-51 (2d Cir. 2005); United States v. Gaskin, 364 F.3d 438, 466 (2d Cir. 2004). We have considered Russell’s remaining argum ents on appeal and have found in them no basis for reversal. For the fo regoing reasons, the judgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk