15

‐ 3313

‐ cr

United States v. Smith



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2015

No. 15

‐ 3313

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

E DWARD S MITH

, Defendant

‐ Appellant

.

On Appeal from the United States District Court

for the Southern District of New York

A RGUED : S EPTEMBER 28, 2016

D ECIDED : M ARCH 8, 2018

A MENDED : J ULY 19, 20182 Before: W INTER and C ABRANES

, Circuit Judges

, and R ESTANI

, Judge

. *

This case, in which oral argument was heard in September 2016

but which was held in abeyance pending decision first in United States

v. Jones

, 878 F.3d 10 (2d Cir. 2017), then in United States v. Morales

, 709

F. App’x 93 (2d Cir. 2018), presents the following questions: (1)

whether the evidence at trial was sufficient to prove possession of

crack cocaine with intent to distribute; and (2) whether the New York

offense of robbery in the second degree constitutes a “crime of

violence” as that term was defined in the United States Sentencing

Guidelines before August 1, 2016. We answer both questions in the

affirmative and therefore AFFIRM the judgment of October 7, 2015 of

the United States District Court for the Southern District of New York

(Katherine Polk Failla, Judge ).

D ANIEL M. T RACER

, Assistant United States

Attorney (Thomas McKay and Karl Metzner,

Assistant United States Attorneys, on the

brief ), for Geoffrey S. Berman, United States

Attorney for the Southern District of New

York, New York, NY, for Appellee

.

* Judge Jane A. Restani, of the United States Court of International Trade,

sitting by designation.3 M ATTHEW B. L ARSEN

, Federal Defenders of

New York Appeals Bureau, New York, NY,

for Defendant

‐ Appellant.

J OSÉ A. C ABRANES

, Circuit Judge :

This case, in which oral argument was heard in September 2016

but which was held in abeyance pending decision first in United States

v. Jones

, 878 F.3d 10 (2d Cir. 2017), then in United States v. Morales

, 709

F. App’x 93 (2d Cir. 2018), presents the following questions: (1)

whether the evidence at trial was sufficient to prove possession of

crack cocaine with intent to distribute; and (2) whether the New York

offense of robbery in the second degree constitutes a “crime of

violence” as that term was defined in the United States Sentencing

Guidelines (“Guidelines”) before August 1, 2016. We answer both

questions in the affirmative and therefore AFFIRM the judgment of

October 7, 2015 of the United States District Court for the Southern

District of New York (Katherine Polk Failla, Judge ).

I. BACKGROUND

Defendant

‐ Appellant Edward Smith (“Smith”) appeals from a

District Court judgment entered on October 7, 2015 by Judge Failla. A

jury convicted Smith of being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1), and of possession of

crack cocaine with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C). At sentencing, the District Court calculated4 Smith’s base offense level as 20. The District Court came to this result

partly by concluding that Smith had already been convicted of a

“crime of violence” as that term is defined in section 4B1.2(a) of the

Guidelines: robbery in the second degree in violation of New York

Penal Law section 160.10. The District Court then imposed a term of

one hundred twenty months’ imprisonment for each of the two

charges, the terms to run concurrently. Smith appealed.

II. DISCUSSION

A. Sufficiency of the Evidence

Smith raises two arguments on appeal. His first argument is that

the evidence presented at trial was insufficient to prove possession of

crack cocaine with intent to distribute. The officers’ testimony that

they recovered bags of crack cocaine from him at the police station

could not have been true, he argues, because he “was bleeding from

his hands on the night in question,” whereas “the baggies allegedly

recovered from [him] were bloodless.” Br. Appellant 15–16. The bags

thus could not have been “pried from his bleeding and

tightly[ ]clenched hands.” Id. at 16.

A court reviewing a conviction entered pursuant to a jury

verdict for sufficiency of the evidence must affirm the conviction if it

determines that “after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Musacchio

v. United States

, 136 S. Ct. 709, 715 (2016) (emphasis in original)5 (quoting Jackson v. Virginia

, 443 U.S. 307, 319 (1979)); see also United

States v. Daugerdas

, 837 F.3d 212, 221 (2d Cir. 2016).

We conclude that there was sufficient evidence to convict Smith.

The officers involved in Smith’s arrest testified at trial that they did not

search Smith until they were back at the police station because a hostile

crowd had gathered at the scene of the arrest. They also testified that

as they prepared to search Smith at the station, Smith removed

something from his pocket and clenched it in his fist. When they pried

Smith’s fist open, they discovered a plastic bag containing fourteen

smaller plastic bags of crack cocaine. Even if no blood was found on

the fourteen smaller plastic bags, the jury might reasonably have

inferred from the officers’ testimony that Smith’s hands were no

longer bleeding by the time he arrived at the police station. The jury

might also reasonably have inferred that Smith’s hands were still

bleeding but that no blood was on the smaller bags because they were

enclosed within the larger plastic bag. The government’s choice not to

introduce the larger plastic bag into evidence did not require the jury

to reject this second possible inference or to conclude that the officers’

testimony was not credible.

B. Calculation of Base Offense Level

Smith also argues that the District Court miscalculated his base

offense level under the Guidelines because robbery in the second

degree, in violation of New York Penal Law section 160.10, is not a6 “crime of violence” as the term is defined in the applicable version of

section 4B1.2(a) of the Guidelines. 1

Because Smith did not object to the calculation in the District

Court, we review the District Court’s calculation for plain error,

although we apply that standard less “stringently” in sentencing cases.

United States v. Gamez

, 577 F.3d 394, 397 (2d Cir. 2009).

The applicable version of section 4B1.2(a) defines “crime of

violence” to include “any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that—(1)

has as an element the use, attempted use, or threatened use of physical

force against the person of another, or (2) is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to

another.” U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S. Sentencing

Comm’n 2014). Paragraph (1) is commonly known as the “force

1 The applicable version of the Guidelines is the version in effect on the day

the defendant is sentenced. See 18 U.S.C. § 3553(a)(4)(A)(ii) (2012); United States v.

Jones

, 878 F.3d 10, 21 n.3 (2d Cir. 2017). Smith was sentenced on October 1, 2015. See

App. Appellant 633–713 (transcript of sentencing). The applicable Guidelines

Manual is therefore the 2014 version, which remained in effect until November 1,

2015. Compare U.S. Sentencing Guidelines Manual i (U.S. Sentencing Comm’n 2014)

(indicating that the 2014 version incorporates amendments to the Guidelines up

through the amendments effective November 1, 2014), with U.S. Sentencing

Guidelines Manual i (U.S. Sentencing Comm’n 2015) (indicating that the 2015 version

incorporates amendments to the Guidelines up through the amendments effective

November 1, 2015).7 clause”; the part of paragraph (2) beginning with “or otherwise

involves” is commonly known as the “residual clause.” 2

We have already held that every degree of New York robbery is

a crime of violence under the residual clause of section 4B1.2(a)(2) as

that clause was worded at the time of Smith’s sentencing. See United

States v. Dove

, 884 F.3d 138, 152 (2d Cir. 2018) (applying the identically

worded U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S.

Sentencing Comm’n 2013)). The District Court’s calculation was

therefore not erroneous, and it is not necessary to consider whether

New York second

‐ degree robbery is a crime of violence under the force

clause of section 4B1.2(a)(1).

III. CONCLUSION

In summary, we hold:

(1) the evidence presented at Smith’s trial was sufficient to prove

possession of crack cocaine with intent to distribute; and

2 The residual clause was removed from the Guidelines effective August 1,

2016 because the United States Sentencing Commission had determined the phrase

to be unconstitutionally vague in light of the Supreme Court’s decision in Johnson

v. United States

, 135 S. Ct. 2551 (2015). See Jones

, 878 F.3d at 14 n.1. The Supreme

Court had held in Johnson that the identically worded residual clause of the Armed

Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague.

Johnson

, 135 S. Ct. at 2554. The Guidelines residual clause has since been held,

however, to be constitutional. Beckles v. United States

, 137 S. Ct. 886, 892 (2017). Our

holding thus applies only to sentencing decisions made under the Guidelines in

effect before August 1, 2016.8 (2) because the New York offense of robbery in the second

degree constitutes a crime of violence within the meaning of

the residual clause of United States Sentencing Guidelines

section 4B1.2(a)(2) in effect when Smith was sentenced on

October 1, 2015, the District Court’s calculation of Smith’s

base offense level was not erroneous.

We AFFIRM the District Court’s judgment of October 7, 2015.