1 19

- 4032 United States v. Woney


## 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 D ATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 6 t h da y of A u g u s t , two thousand twenty

- one . 3 4 PRESENT: 5 REENA RAGGI , 6 GER ARD E. LYNCH , 7 MICHAEL H. PARK , 8 Circuit Judges. 9

_____________________________________ 10 11 UNITED STATES OF AMERICA , 12 13 Appellee , 14 15

v. 19

- 4032 16 17 ISHI WONEY , 18 AKA SEALED DEFENDANT 1, 19 20 Defendant

- Appell ant

. 21

_____________________________________ 22 23 FOR APPELLEE: Daniel H. Wolf
, Karl Metzner, Assistant 24 United States Attorney s , for Audrey Strauss
, 25 United States Attorney for the Southern 26 District of New York
, New York , NY. 27 28 FOR DEFENDANT

- APPELLANT: Robert J. Boyle
, Law Office of Robert J. 29 Boyle
, New York , N Y

. 302 31 Appeal from the United States District Court for the Southern District of New York ( Lorna 32

Schofield
, J

. ). 33

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJ UDGED, AND 34

DECREED that the judgment of the district court is AFFIRMED

. 35
Ishi Woney appeals from a judgment entered on November 26, 2019, following his guilty 36
plea, convicting him of sex trafficking of a minor in violation of 18 U.S.C. §§ 1591(a), 1591 (b)(2), 37

and 1594(a) ; transporting an individual in interstate commerce with the intent that the individual 38
engage in prostitution in violation of 18 U.S.C. § 2421(a ) ; using an interstate facility to promot e, 39
manage, and carry on prostitution in violation of 18 U.S.C. § 1952(a)(3); and being a felon in 40
possession of ammunition in violation of 18 U.S.C. § 922(g)(1)

. The district court (Schofield, J. ) 41

sentenced Woney principally to fifteen years’ imprisonment , followed by eight years’ supervised 42

release. On appeal, Woney argues that (1) the district court plainly erred in accepting his guilty 43
plea for being a felon in possession of ammunition based on Rehaif v. United States , 139 S. Ct. 44
2191 (2019)
, and (2) his term of imprisonment is substantively unreasonable. We assume the 45
parties’ familiarity with the underlying facts, procedural history, and issues on appeal. 46

1. Felon

- in

- Pos s ession Challenge 47

In Rehaif
, the Supreme Court held that in cases charging possession of a firearm by persons 48
prohibited from possessing such weapons , the government must prove not only that the defendant 49
knowingly possessed a firearm or ammunition, but “also that he knew he had the relevant status 50
when he possessed it. ” Id. at 2194

. For a felon

- in

- possession charge under 18 U.S.C. 51

§ 922(g)(1), the government must therefore prove that the defendant knew he had been convicted 52
of a crime punishable by imprisonment for a term exceeding one year. Id. Woney argues that 533 the district court plainly erred under Rehaif because it failed to provide adequate notice of the mens 1

rea requirement for this element of the offense and because his allocution l acked a sufficient factual 2

basis for satisfying this element. 3

“ Because [Woney] raises his challenge for the first time on appeal, we review for plain 4
error, considering whether (1) there is an error; (2) the error is clear or obvious, rather than subject 5
to reasonable dispute; (3) the error affected the appellant’s su bstantial rights; and (4) the error 6
seriously affects the fairness, integrity or public reputation of judicial proceedings. ” United States 7

v. Miller , 954 F.3d 551, 557

– 58 (2d Cir. 2020) (internal quotation marks omitted)
, cert. denied sub 8

nom. Mack v. Uni ted States , No. 20

- 5407, 2021 WL 2519198 (U.S. June 21, 2021) . The 9
government concedes that the district court erred but contends that its error did not affect Woney’s 10
substantial rights. “An error affects the defendant’s substantial rights when it is pr ejudicial

— that 11
is, when there is a ‘reasonable probability’ that the error affected the outcome of the proceeding.” 12

United States v. Dussard , 967 F.3d 149, 156 (2d Cir. 2020) (quoting United States v. Dominguez 13

Benitez , 542 U.S. 74, 82 (2004)). Woney see ks reversal of his conviction after his guilty plea, so 14
he bears “the burden of showing that, if the District Court had correctly advised him of the mens 15

rea element of the offense, there is a ‘reasonable probability’ that he would not have pled guilty.” 16

Greer v. United States
, 141 S. Ct. 2090, 2097 ( 2021) ( quoting Dominguez Benitez , 542 U.S. at 83). 17
Woney cannot meet that burden. 18
The biggest hurdle to Woney’s challenge is the existence of his prior felony

. In 2015, he 19
was convicted of felony attempted robbery in the third degree and sentenced to a year in prison. 20
As the Supreme Court recently noted, “ [i] f a person is a felon, he ordinarily knows he is a felon. 21
Felony status is simply not the kind of thin g that one forgets.” Id. (internal quotation marks 224 omitted). Indeed, “given the rights to appointed counsel, effective assistance of counsel, and due 1
process, it is highly improbable that a person could be convicted of a felony without being aware 2

that h is possible sentence would exceed one year’s imprisonment.” Miller , 954 F.3d at 559 3
( citations omitted)

. Woney presents no convincing reason for us to conclude otherwise, 4
especially considering that he served a year in prison for his felony conviction

. Cf. Greer
, 5

141 S. Ct. at 2097 (“ [I]f a defendant was in fact a felon, it will be difficult for him to carry the 6
burden on plain

- error review of showing a ‘ reasonable probability ’ that, but for the Rehaif error, 7
the outcome of the district court proceedings would have been different .”)

. Moreover, at the time 8
he entered his state plea, he was told that the plea agreement would guarantee that he would have 9
“a felony record

. . . for the remainder of [his] adult life,” Supp. App’x at 6, and the court 10
questioned the provision of the agreeme nt limiting his sentenced to one year, making plain that, 11
but for the prosecution’s promise, the sentence could have been longer. Woney offers no 12
evidence to suggest that he was unaware that he was a felon or that the crime of which he had been 13

convicted carried a maximum sentence of more than one year. See Greer , 141 S. Ct. at 2097 (to 14
establish plain error, defendant must “make an adequate showing on appeal that he would have 15
presented evidence in the district court that he did not in fact know he was a felon when he 16
possessed firearms”). 17
Woney also had a significant incentive to plead guilty

. He pled guilty to being a felon in 18
possession of ammunition as part of a plea agreement under which he avoided prosecution for sex 19
trafficking by force, fraud, an d coercion
, a conviction that would have carried a fifteen

- year 20
mandatory minimum. See 18 U.S.C. § 1591(b)(1). There is no “reasonable probability” that 21
Woney would have risked prosecution on that count to challenge the mens rea element on his 225 possession offense. Cf. United States v. Bryant , 976 F.3d 165, 177 (2d Cir. 2020) (“The final and 1
perhaps most compelling reason why we can be confident that Bryant would not have put the 2
government to the test of proving his knowledge of his prohibited status is b ased upon the fact that 3
Bryant would have faced other, more serious charges if he had gone to trial.”)

. 4

In sum, Woney likely “knew of his unlawful status when he possessed the [ammunition] 5
and there is no reasonable probability that he would have not ple d guilty had he been properly 6
informed that such knowledge was a requirement for conviction under 18 U.S.C. § 922(g) .” Id. 7

at 169. 8

2. Substantive Reasonableness 9
Woney also argues that his fifteen

- year term of imprisonment

— which exceeds the 120

- to

10

135

- month Guidelines range

— is substantively unreasonable. “Our review of a sentence for 11
substantive reasonableness is particularly deferential, and we will set aside only those sentences 12
that are so shockingly high, shockingly low, or otherwise unsupporta ble as a matter of law that 13
allowing them to stand would damage the administration of justice .” United States v. Muzio
, 14

966 F.3d 61, 64 (2d Cir. 2020) ( alternation and internal quotation marks omitted )

. “Generally, if 15

the ultimate sentence is reasonable and the sentencing judge did not commit procedural error in 16
imposing that sentence, we will not second guess the weight (or lack thereof) that the judge 17
accorded to a given factor or to a specific argument made pursuant to that factor.” United States 18

v. P ope , 554 F.3d 240, 246

– 47 (2d Cir. 2009 ) ( alteration and internal quotation marks omitted )

. 19

The district court did not abuse its discretion in sentencing Woney to fifteen years’ 20
imprisonment. I t expressly considered the 18 U.S.C. § 3553(a) factors and exp lained why the 21
sentence imposed is “sufficient, but no greater than necessary.” App’x at 69. In explaining the 226 basis for the sentence, the district court focused on the nature of Woney’s conduct, his criminal 1
history, and the danger he posed to public safety

. It highlighted the vulnerability of Woney’s 2

victims, which included “ a minor , as well as a woman who was mentally disabled and described 3
in the presentence report as having the IQ of a third grader.” Id. at 70. Woney controlled these 4

vict ims using coercive tactics, such as holding their money and belongings hostage. He also 5
employed physical violence and threats, which at one point led to his arrest for assault. The 6
district court also sought to “protect the public from further crimes [W oney] might commit ,” which 7
was important in light of Woney’s violent tendencies and possession of ammunition

. Id. at 72. 8

It noted that at twenty

- three years old, Woney already had “four prior arrests and convictions 9
dating to when [he] w[as] 19 years old , including for attempted robbery and assault .” Id. at 70. 10

Based on all this
, W o ney’s sentence is not “ s o shockingly high

. . . that allowing [it] to stand would 11
damage the administration of justice .” Muzio , 966 F.3d at 64 (quoting United States v. 12

Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012)) ; c f. United States v. Sanchez , 433 F. App’x 44, 46 13
(2d Cir. 2011) ( collecting cases demonstrating that “ [a] sentence of 240 months

. . . is consistent 14
with sex trafficking sentences in this juri sdiction as well as others ” ). 15

Woney also argues on appeal that his “ex traordinarily difficult upbringing [and mental 16
health issues] w[ere] given little, if any, weight by the District Court. ” Appellant’s Br. 26

– 27. 17
The district court did acknowledge Woney’s “difficult life,” however, and it described in detail 18

Woney’s troubled childhood and psychiatric issues. App’x at 70

– 71. To the extent that Woney 19
challenges the weight the district court gave to these factors, t hat “is a matter firmly committed to 20
the discretion of the sentencing judge and is beyond our appellate review.” United States v. 21

Florez
, 447 F.3d 145, 1 5 8 (2d Cir. 2006) ( alteration and internal quotation marks omitted )

. 227 We have considered Woney’s remaining arguments and conclude that they are without 1

merit. For the foregoing reasons, we AFFIRM the district court ’s judgment

. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe, Clerk of Court 4