1 15-517-cr United States v. Riglioni, et al.

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 PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 26 th day of May, two thousand seventeen.

PRESENT: B ARRINGTON D. P ARKER

, R ICHARD C. W ESLEY

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

---------------------------- ---------------------------- -------------- U NITED S TATES OF A MERICA

, Appellee

,

v. No. 15-517-cr

M ICHAEL R IGLIONI

, Defendant

,

B ARKEL N ELSON

, Defendant-Appellant

.

---------------------------- ---------------------------- --------------

FOR DEFENDANT-APPELLANT: Nichol as J. Pinto, New York, NY.

FOR APPELLEE: Paul D. Silver, Assistant United States Attorney (Daniel Hanlon, Assistant United States Attorney, on the brief ), for Richard S. Hartunian, United States Attorney for the Northe rn District of New York, Albany, NY.2 Appeal from a February 4, 2015 judgment of the United States District Court for the Northern District of New York (Sharpe, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of conviction is AFFIRMED , but the defendant’s term of supervised release is VACATED , and the case is REMANDED for resentencing as to the term of supervised release.

Following a three-day trial in May 2010 , a jury convicted Defendant-Appellant Barkel Nelson of three counts of possession with intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1). 1 Specifically, the Government alle ged and proved that on three days in 2009, a confidential informant working for the DEA made three controlled purchases of approximately two ounces of crack cocaine from an individual known only as “BJ.” The three purchases, which the in formant recorded an d DEA agents superv ised, occurred in and near two clothing stores owned by Nelson in Schenectady, New York.

The critical issue at trial was whether Ba rkel Nelson was “BJ,” and the Government proved that contested identification based on, inter alia , (1) the informan t’s testimony and identification of Nelson as “BJ”, (2) the cas e agent’s testimony that he saw Nelson enter

the informant’s car to execute the third contro lled transaction, and (3) Nelson’s ownership of the two clothing stores. Furthermore, th e agent testified as a lay witness on direct examination––over no defense objection––that he recognized Nelson’s voice as the seller on the recordings of the drug transactions, ba sed on a post-arrest conversation he had with

Nelson. On redirect examination, the agent re sponded affirmatively––this time over

1 The grand jury returned a five-count indictment in July 2009, charging Nelson with three counts of possession with intent to distribute more than fifty grams of crack cocaine, his co-defendant Michael Riglioni with two counts of the same offense, a nd both defendants with one count of conspiracy. Riglioni pleaded guilty before trial and the Government move d to dismiss the conspiracy count before closing arguments in Nelson’s trial.

The 2009 indictment charged Nelson under 21 U.S.C. § 841(b)(1)(A), which triggered a ten-year statutory minimum term of imprisonment for possession with intent to distribute fifty or more grams of a substance containing cocaine base, until the Fair Sentencing Act (“FSA”) became effective on August 3, 2010. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (increasing the amount of crack cocaine necessary to trigger the ten-year statutor y minimum from fifty to 280 grams, and the amount necessary to trigger the five-year statutory minimum from five to twenty-eight grams); see generally Dorsey v. United States , 567 U.S. 260, 281 (2012) (holding that the FSA’s lower statutory minimums apply to the post-Act sentencing of pre-Act offenders).

Four days before Nelson’s trial, the Government filed a special information to est ablish a prior felony drug conviction pursuant to 21 U.S.C. § 851, which subject ed him to a twenty-year statutory minimum term of imprisonment.3 objection––when asked if Nelson met his “expectations” during the post-arrest

conversation.

After nearly five years of sentencing con tinuances, in February 2015 the district

court sentenced Nelson to three concurrent te rms of seventy months of imprisonment (the bottom of the Guidelines range) and eight years of supervised release. On appeal, Nelson (who has been released from pr ison and is serving his term of supervised release) argues that (1) the district court abused its discre tion by allowing the agen t to testify as a lay witness that he recognized Nels on’s voice on the recordings, an d (2) his eight-year term of supervised release is proced urally and substantively unrea sonable. The Government concedes that the district court committed pro cedural error that affects Nelson’s substantial rights by miscalculating the Guidelines range for his term of supervised release. We assume the parties’ fam iliarity with the underlying facts, the procedural history of the case, and the issues on appeal, which we reference only as necessary to e xplain our decision to affirm Nelson’s conviction, vacate his term of supervised release, and remand for resentencing as to the term of supervised release.

1. Evidentiary Challenge

The district court did not commit error, pl ain or otherwise, under Federal Rules of Evidence 701 and 901(b)(5) by admitting the agent’s lay opinion identifying Nelson’s voice on the recordings. 2 Under Rule 701, a lay opinion is admissible only if it is (a) “rationally based on the witness’s percepti on,” (b) helpful to the jury in “clearly understanding the witness’s testimony” or “det ermining a fact in issue,” and (c) not based on “scientific, technical, or other specialized knowledge within the scope of Rule 702.” See

Fed. R. Evid. 701.

Beginning with the third of those requ irements, we have noted that “voice identification is not generally considered to be an area where expertise is important.”

United States v. Cambindo Valencia , 609 F.2d 603, 640 (2d Cir. 1979); accord Fed. R. Evid. 901(b) advisory committee’s note (stating that “aural voice identification is not a subject of expert testimony”). That is true he re, where the agent did not rely on scientific, technical, or other specialized knowledge in forming his opinion as to whether Nelson’s voice was the same as “BJ’s” voice. Rather, th e agent simply used “a process of reasoning familiar in everyday life,” see United States v. Natal , 849 F.3d 530, 536 (2 d Cir. 2017) (per

2 Accordingly, we need not resolve the parties’ di spute concerning the standard of review we should employ––abuse of discretion or plain error––i n addressing Nelson’s evidentiary challenge. The

Government contends that our review is limited to plain error because Nelson did not object to the agent’s lay opinion identifying Nelson’s voice on direct examina tion, while Nelson argues that the he preserved the objection on redirect examination.4 curiam) (internal quotation marks omitted), by comparing Nelson’s voice, which he heard firsthand during the thirty-minute post-arrest conversation, to the vo ice of “BJ,” which he heard on the recordings.

As to Rule 701’s second requirement, Ne lson argues that the agent’s testimony was not helpful to the ju ry in “determining a fact in issue.” There was little dispute by Nelson during trial that an individual known as “BJ” sold the confidential informant two ounces of

crack cocaine on th ree days in 2009. But the crucial issue presented to the jury was

whether Barkel Nelson and “BJ” were one a nd the same, and to corro borate the informant’s identification of Nelson as “BJ, ” the Government offered the agent’s opinion that “BJ’s” voice on the recordings was Nelson’s voice. Accordingly, that opini on was helpful to the jury in determining not just a fact in issue, but the principal fact in issue: whether Nelson

was “BJ.”

Finally, the agent’s opinion was based on his own perception: listening to the recordings of “BJ” and speaki ng with Nelson after his arrest. Rule 901(b) permits a witness to express an opinion iden tifying a person’s voice, “whether heard firsthand or through mechanical or electronic transmissi on or recording––base d on hearing the voice at any time . . . .” Fed. R. Evid. 901(b)(5) (emphases added); see id. advisory committee’s note (noting that the “requisite familiarity may be acquired either before or after the particular speaking which is the subject of th e identification”). Therefore, we have held that “[t]he standard for the admi ssibility of an opinion as to th e identity of a speaker on tape is merely that the identifie r has heard the voice of the alleged speaker at any time.”

Cambindo Valencia , 609 F.2d at 640; accord United States v. Bonanno , 487 F.2d 654, 659 (2d Cir. 1973). The agent’s vo ice-identification opinion easily satisfies those standards.

Accordingly, we find no error in the district court’s admission of the agent’s voice-identification opinion u nder Rules 701 and 901(b).

2. Sentencing Challenge

We review sentences for procedural and substantive unreasonableness. United

States v. Cavera , 550 F.3d 180, 189 (2d Cir. 20 08) (en banc). “Review for

‘unreasonableness’ amounts to revi ew for abuse of discretion.” Id. at 187. “A district court commits procedural error where it fails to calculate the Guidelines range . . . , makes

a mistake in its Guidelines calculation, or treats the Guidelines as mandatory.” Id. at 190. When, as here, a defendant fails to object to an alleged senten cing error before the district court, we review only for plain error. United States v. Villafuerte , 502 F.3d 204, 207 (2d Cir. 2007). Plain error review permits relief only where (1) there is “error,” (2) the error “is plain,” (3) the error “affects substantial ri ghts,” and (4) the error “seriously affects the fairness, integrity, or public reput ation of judicial proceedings.” United States v.5 Groysman , 766 F.3d 147, 155 (2d Cir. 2014) (a lterations and internal quotation marks omitted).

As the Government concedes, the dist rict court imposed a procedurally unreasonable sentence by miscalculating the Guidelines range for Nelson’s supervised release, and under the circumstances, that mi scalculation constitutes plain error because it affects his substantial rights.

Beginning with the calculation, the district court calculated the applicable range for the term of supervised release as four years to life during th e sentencing hearing, and eight years to life in its Statement of Reasons. A sentence for a defendant convicted of possessing twenty-eight grams or more of a s ubstance containing cocaine base “shall, in the absence of [a prior felony drug conviction that has beco me final], include a term of supervised release of at least [four] years in addition to such term of imprisonment and shall, if there was such a prior conviction, incl ude a term of supervised release of at least [eight] years . . . .” 21 U.S.C. § 841(b)(1)(B). The Guidelines range of supervised release, however, for a defendant convicted of a Class B felony 3 is “[a]t least two years but not more than five years,” U.S.S.G. § 5D1.2(a)(1 ), but “shall be not less than any statutorily required term of supervised rel ease.” U.S.S.G. § 5D1.2(c).

Accordingly, the bottom of Nelson’s Guidelin es range of supervis ed release is four years under the statute. See 21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 5D1.2(c). 4 But because section 841(b)(1)(B) is a Class B felony, the t op of Nelson’s supervis ed release Guidelines range under U.S.S.G. § 5D1.2(a)(1) is five years. Therefore, as the Government concedes, Nelson’s Guidelines range is four to five years of supervised release––“the statutorily required minimum of four years coup led with the [G]uidelin es maximum of five years.” 5 See Appellee’s Br. 24.

Furthermore, we conclude that this mi scalculation constitutes plain error, and the Government agrees. The Supreme Court has recently e xplained that “[i]n most cases a

3 Absent a prior felony drug conviction, an offen se under section 841(b)(1)(B) is a Class B felony because the statutory maximum term of imprisonment––forty y ears––is more than twenty-five years but less than life imprisonment. See 18 U.S.C. § 3559(a); 21 U.S.C. § 841(b)(1)(B).

4 Approximately three months before Nelson’s sentenc ing, the Government moved to dismiss the special information establishing his prior felony drug conviction under 21 U.S.C. § 851 in the interests of justice, and the court granted that motion during the hearing.

5 We note that Nelson, on appeal, does not argue that th e district court incorrectly calculated the Guidelines range; rather, he simply contends that the district court “treated the [G]uidelines a[s] presumptively reasonable.” Appellant’s Br. 17. Nevertheless, the nature of the error requires resentencing.6 defendant who has shown that th e district court mistakenly d eemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability [tha t the error affected his substantial rights].” Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1346 (2016); accord United States v. Bennett , 839 F.3d 153, 162– 63 (2d Cir. 2016). Although “[t]here may be instan ces when, despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist,” Molina-Martinez , 136 S. Ct. at 1346, “[w]here . . . the record is silent as to what the district court might have done had it

considered the correct Guidelin es range, the court’s reliance on an incorrect range in most

instances will suffice to show an effect on the defenda nt’s substantial rights,” id. at 1347.

Here, the district court sentenced Nelson to eight years of supervised release (three years above the top of the corr ect Guidelines range), but in doing so, it indicated in its Statement of Reasons that it was imposin g a Guidelines sentence. Moreover, the sentencing transcript suggests that the court believed it was imposing a Guidelines term of supervised release. See J.A. 46 (“I see no reason to impose a sentence [of imprisonment] beyond the minimum here and my sentence is 70 months. In addition, I impose a term of supervised release of [eight] years under the general terms and conditions that have been adopted by the district.”). Accordingly, we conclude “there [was] at least a reasonable probability that the [d]i strict [c]ourt would ha ve imposed a different sentence” absent the

miscalculation because it “said nothing to suggest that it w ould have imposed [the same] sentence regardless of the Guidelines range.” See Molina-Martinez , 136 S. Ct. at 1348.

Thus, remand is appropriate so that the di strict court may determine Nelson’s term of supervised release in light of the correct Guidelines range of four to five years.

3. Conclusion

We have considered Nelson’s remaining ar guments and find them to be without merit. Accordingly, we AFFIRM Nelson’s conviction, VACATE the term of supervised release imposed by the district court, and REMAND for resentencing consistent with this order as to Nelson’s term of supervised release.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court