05-2828-cr

USA v. Legros

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2007

4 (Submitted: February 22, 2008 Decided: June 17, 2008)

5 Docket No. 05-2828-cr

6 -------------------------------------

7 United States of America,

8 Appellee,

9 - v -

10 Herby Legros,

11 Defendant-Appellant.

12 -------------------------------------

13 Before: JACOBS, Chief Judge, CALABRESI, and SACK, Circuit Judges.

14 Appeal by the defendant from a judgment of conviction

15 of the United States District Court for the Eastern District of

16 New York (Joanna Seybert, Judge) sentencing him principally to a

17 term of imprisonment of 120 months for being a felon in

18 possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 

19 The district court's factual findings, as stated on the record,

20 are insufficient to support the sentencing enhancement imposed

21 under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in

22 connection with another felony offense.

23 Vacated and remanded for resentencing.

24 Vivian Shevitz, South Salem, NY, for

25 Appellant.
 Although the relevant enhancement was U.S.S.G. 1

§ 2K2.1(b)(5) at the time Legros was sentenced, subsection (b)(5)

was subsequently renumbered (b)(6) without substantive change. 

See U.S.S.G. Supp. to App. C, amend. 691 (eff. Nov. 1, 2006). 

Throughout this opinion we cite to the enhancement as U.S.S.G.

§ 2K2.1(b)(6).

2

1 Roslynn R. Mauskopf, United States

2 Attorney for the Eastern District of New

3 York, Peter A. Norling, Jo Ann M.

4 Navickas, Assistant United States

5 Attorneys, Brooklyn, NY, for Appellee.

6 SACK, Circuit Judge:

7 Defendant Herby Legros appeals from a judgment of

8 conviction of the United States District Court for the Eastern

9 District of New York (Joanna Seybert, Judge) sentencing him

10 principally to a term of imprisonment of 120 months for being a

11 felon in possession of a firearm in violation of 18 U.S.C.

12 § 922(g)(1). Legros appeals his sentence only. We conclude that

13 it is procedurally "unreasonable" because the district court's

14 findings of fact, as stated on the record, do not support a four15 level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a

16 firearm in connection with another felony offense. We therefore 1

17 vacate the judgment and remand for resentencing. At

18 resentencing, the district court may either recalculate the

19 applicable Guidelines range without the enhancement or make

20 additional factual findings that sufficiently support the

21 enhancement. The judgment below is in all other respects

22 affirmed.
3

1 BACKGROUND

2 On November 1, 2003, police responded to a series of

3 "911" calls reporting multiple shots fired in the street of a

4 residential area of West Babylon, Suffolk County, New York. Two

5 police officers arrived on the scene almost immediately, spotted

6 three men in the vicinity, and approached them. One of them

7 (later identified as Legros) ran. One of the officers pursued

8 him. During the chase, Legros tossed a handgun to the ground. 

9 He was arrested by the officer. The gun he discarded was later

10 matched to spent shell casings and one expended bullet recovered

11 from the scene of the reported gunshots. 

12 Legros was indicted on one count of being a felon in

13 possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 

14 Following a jury trial, he was convicted of the offense. 

15 Prior to sentencing the United States Probation Office

16 prepared a presentence investigation report ("PSR") calculating a

17 sentencing range under the United States Sentencing Guidelines of

18 110 to 137 months. According to the PSR, the Probation Office

19 arrived at that range by assessing a base offense level of 20,

20 U.S.S.G. § 2K2.1(a)(4)(A); a two-level enhancement because the

21 firearm was stolen, id. § 2K2.1(b)(4)(A); a four-level

22 enhancement because the firearm was possessed in connection with

23 another felony offense, id. § 2K2.1(b)(6); and a criminal history

24 category of V. The maximum sentence permitted by statute,

25 however, was 120 months, ten months above the bottom of the

26 applicable Guidelines range. See 18 U.S.C. § 924(a)(2).
 Another police detective testified that after a diligent 2

search, he was unable to locate Bullock to subpoena him for the

sentencing hearing. 

4

1 The four-level enhancement under U.S.S.G. § 2K2.1(b)(6)

2 is central to this appeal. Without the enhancement, the

3 applicable Guidelines range would have been 77 to 96 months. 

4 According to the PSR, the enhancement was based on the

5 assertion that Legros had committed "aggravated assault" by

6 shooting at one Christopher Passius in retaliation for Passius's

7 testimony against two fellow gang members who had been convicted

8 in state court of manslaughter for beating to death a member of a

9 rival gang. The government argued that the enhancement was

10 proper because Legros had "discharged the charged firearm at

11 Christopher Passius in retaliation for what [Legros] believed was

12 Passius's betrayal of fellow 'Bloods' members through Passius's

13 cooperation with Suffolk County law enforcement at trial." 

14 Letter from Special Assistant U.S. Attorney Sondra M. Mendelson

15 to the district court dated Mar. 31, 2005, at 4. 

16 Legros challenged the enhancement. He argued that

17 there was no evidence that he was in a gang or that he had shot

18 at Passius or anyone else. 

19 At the sentencing hearing, the government introduced

20 evidence intended to support the enhancement. The police had

21 taken a statement of one Jermaine Bullock, who said he had seen

22 Legros fire a weapon. Although Bullock himself did not testify,2

23 Detective Christopher Loeffler, who had taken Bullock's
5

1 statement, read Bullock's statement to the court. The district

2 court found Bullock's hearsay statement reliable and admitted it. 

3 In relevant part, Loeffler said that Bullock told him:

4 When I was looking up the street, I saw a guy

5 with a hood and I heard a few shots. At

6 first I took cover, but then I tried to

7 mediate the crisis between Chris and Herb. 

8 Herb was firing in the air.

9 Police told me they found a bullet hole in

10 Chris's car. I don't know how that got

11 there.

12

13 Sentencing Transcript, May 20, 2005 ("Sentencing Tr."), at 38

14 (emphasis added). 

15 At the conclusion of the hearing, the court imposed a

16 term of imprisonment of 120 months, which was the maximum

17 permitted by statute and within the range of 110 to 137 months

18 recommended in the PSR based in part on the four-level

19 enhancement. The court said that "there is proof adduced at

20 th[e] hearing that the defendant was the individual who fired the

21 gun in the air." Id. at 73. Noting also that the shooting

22 occurred in a residential neighborhood, the court found that such

23 conduct "amounts to reckless endangerment." Id. Alternatively,

24 the court found that the enhancement was applicable on the basis

25 relied upon in the PSR: that Legros had possessed the gun in the

26 course of committing an aggravated assault.

27 Legros appeals.
6

1 DISCUSSION

2 I. Standard of Review

3 [T]he appellate court . . . must first ensure

4 that the district court committed no

5 significant procedural error, such as failing

6 to calculate (or improperly calculating) the

7 Guidelines range, treating the Guidelines as

8 mandatory, failing to consider the [18

9 U.S.C.] § 3553(a) factors, selecting a

10 sentence based on clearly erroneous facts, or

11 failing to adequately explain the chosen

12 sentence –- including an explanation for any

13 deviation from the Guidelines range. 

14 Assuming that the district court's sentencing

15 decision is procedurally sound, the appellate

16 court should then consider the substantive

17 reasonableness of the sentence

18 imposed . . . .

19 Gall v. United States, 128 S. Ct. 586, 597 (2007). We review

20 sentences for reasonableness under an abuse-of-discretion

21 standard. United States v. Cutler, 520 F.3d 136, 156 (2d Cir.

22 2008). The abuse-of-discretion standard incorporates de novo

23 review of questions of law (including interpretation of the

24 Guidelines) and clear-error review of questions of fact. Cutler,

25 520 F.3d at 157; see also United States v. Richardson, 521 F.3d

26 149, 156 (2d Cir. 2008).

27 II. Enhancement Under U.S.S.G. § 2K2.1(b)(6)

28 Legros argues that there is insufficient evidence to

29 support a four-level enhancement on the ground that he "used or

30 possessed any firearm . . . in connection with another felony

31 offense." U.S.S.G. § 2K2.1(b)(6). According to the applicable

32 Guidelines' commentary, this enhancement applies "if the

33 firearm . . . facilitated, or had the potential of facilitating,
7

1 another felony offense." U.S.S.G. § 2K2.1 application note

2 14(A). The commentary defines "another felony offense" as "any

3 [f]ederal, state, or local offense," other than the offense of

4 conviction, "punishable by imprisonment for a term exceeding one

5 year, regardless of whether the criminal charge was brought, or a

6 conviction obtained." Id., application note 14(C).

7 The government bears the burden of proving by a

8 preponderance of the evidence that the defendant committed

9 another felony offense. United States v. Spurgeon, 117 F.3d 641,

10 643 (2d Cir. 1997) (per curiam). Each element of the underlying

11 felony offense must be established. See United States v. Betts,

12 509 F.3d 441, 445 (8th Cir. 2007). Although we do not require

13 that the district court state each element on the record and

14 declare it proved by a preponderance of the evidence, like other

15 "facts disputed in connection with sentencing, the [district]

16 court is required to make findings sufficient to permit appellate

17 review." United States v. Thompson, 76 F.3d 442, 456 (2d Cir.

18 1996).

19 A. Reckless Endangerment

20 We begin with the district court's finding that

21 Legros's possession of the gun was in connection with his

22 commission of the crime of reckless endangerment. In New York,

23 there are two degrees of reckless endangerment. "A person is

24 guilty of reckless endangerment in the second degree," a

25 misdemeanor, "when he recklessly engages in conduct which creates

26 a substantial risk of serious physical injury to another person." 
8

1 N.Y. Penal Law § 120.20. "A person is guilty of reckless

2 endangerment in the first degree," a felony, "when, under

3 circumstances evincing a depraved indifference to human life, he

4 recklessly engages in conduct which creates a grave risk of death

5 to another person." Id. § 120.25. Under New York law, depraved

6 indifference to human life is a "culpable mental state." People

7 v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 695, 852 N.E.2d

8 1163, 1167 (2006).

9 Reflecting wickedness, evil or inhumanity, as

10 manifested by brutal, heinous and despicable

11 acts, depraved indifference is embodied in

12 conduct that is so wanton, so deficient in a

13 moral sense of concern, so devoid of regard

14 of the life or lives of others, and so

15 blameworthy as to render the actor as

16 culpable as one whose conscious objective is

17 to kill. Quintessential examples are firing

18 into a crowd; driving an automobile along a

19 crowded sidewalk at high speed; opening the

20 lion's cage at the zoo; placing a time bomb

21 in a public place; poisoning a well from

22 which people are accustomed to draw water;

23 opening a drawbridge as a train is about to

24 pass over it and dropping stones from an

25 overpass onto a busy highway.

26 People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 276, 844

27 N.E.2d 721, 730 (2005) (per curiam) (internal quotation marks,

28 citations, and footnote omitted).

29 For a defendant to be subject to the four-level

30 enhancement under U.S.S.G. § 2K2.1(b)(6), he must have possessed

31 a firearm in connection with another felony offense. In this

32 case, then, it would have been insufficient support for the

33 enhancement for the district court to find that Legros recklessly

34 engaged in conduct creating a substantial risk of serious
9

1 physical injury to another person, because that would support

2 only second-degree reckless endangerment, a misdemeanor. An

3 enhancement for reckless endangerment could be imposed only if

4 the district court properly found that his conduct created a

5 "grave risk of death" and that he acted with a mens rea of

6 "depraved indifference to human life." See N.Y. Penal Law

7 § 120.25. 

8 In explaining its decision to impose the four-level

9 enhancement, the district court made no mention of a "grave risk"

10 or "depraved indifference." The court said:

11 [T]here is proof adduced at th[e] hearing

12 that the defendant was the individual who

13 fired the gun in the air. That amounts to

14 reckless endangerment. The court heard

15 testimony with respect to the fact that it

16 was a neighborhood. And the statement is

17 confirmed by the admission of Germaine [sic]

18 Bullock's statement into evidence.

19 Sentencing Tr. at 73. There was sufficient evidence to support

20 the district court's finding that, in the course of the incident

21 in question, Legros fired the gun in the air, as described by

22 Bullock, and that he did so in a residential area. But these

23 facts, standing alone, are not sufficient to support a finding of

24 felony reckless endangerment. See People v. Davis, 72 N.Y.2d 32,

25 36-37, 530 N.Y.S.2d 529, 531, 526 N.E.2d 20, 22 (1988) (shooting

26 pistol into the air does not constitute reckless endangerment in

27 the first degree) (citing People v. Richardson, 97 A.D.2d 693,

28 694, 468 N.Y.S.2d 114, 115 (1st Dep't 1983)). Shooting a gun

29 into the air in a residential area is of course risky. But
 The government argues that the plain-error standard of 3

review applies because Legros did not object to the district

court's reckless endangerment finding. See Fed. R. Crim. P.

52(b). While Legros did not use the terms "grave risk" and

"depraved indifference," we think that his argument to the

district court challenging the propriety of imposing the

enhancement based on the theory that the other felony was the

crime of reckless endangerment was sufficient to raise the issue. 

 According to the PSR, no one was injured as a result of 4

Legros's conduct.

10

1 nothing in the record indicates that the district court found

2 such conduct created a "grave risk of death" and that Legros

3 acted with a mens rea of "depraved indifference to human life." 

4 See N.Y. Penal Law § 120.25.

5 We need not decide whether there is evidence in the

6 record to support such findings. Without a further explanation

7 from the district court, we cannot affirm its judgment in this

8 respect on this ground. See United States v. Sindima, 488 F.3d

9 81, 88 (2d Cir. 2007); United States v. Dupre, 462 F.3d 131, 146

10 (2d Cir. 2006), cert. denied, 127 S. Ct. 1026 (2007).3

11 B. Aggravated Assault

12 The district court's decision as to the propriety of

13 the enhancement was also based on the alternative theory that the

14 "[]other felony" in connection with which Legros possessed the

15 gun was an aggravated assault. Although there is no crime of

16 "aggravated assault" in New York, Legros would be guilty of

17 attempted assault in the first degree, a felony, if, as alleged

18 by the government and in the PSR, Legros fired one or more shots

19 at Passius. "A person is guilty of assault in the first degree 4
11

1 when . . . [w]ith intent to cause serious physical injury to

2 another person, he causes such injury to such person or to a

3 third person by means of a deadly weapon or a dangerous

4 instrument." N.Y. Penal Law § 120.10(1). "A person is guilty of

5 an attempt to commit a crime when, with intent to commit a crime,

6 he engages in conduct which tends to effect the commission of

7 such crime." Id. § 110.00.

8 As was the case with respect to the court's treatment

9 of reckless endangerment, the court did not mention the essential

10 elements of the offense or identify facts in the record that

11 satisfied them. The court said:

12 The last basis that the court finds the

13 enhancement is applicable is with respect to

14 the aggravated assault. The temporal

15 connection is strong in terms of the

16 defendant's apprehension and the events

17 preceding his arrest. There is sufficient

18 circumstantial evidence that the defendant

19 was wearing a black-hooded sweatshirt, and

20 that also is confirmed as the defendant being

21 the shooter when we have the statement of Mr.

22 Bullock which has been admitted and

23 thoroughly corroborates the circumstances

24 involved in this case. 

25 Sentencing Tr. at 73. Indeed, as was the case with the reckless

26 endangerment theory, the evidence was sufficient to support a

27 finding that Legros was "the shooter." But the district court

28 identified no facts to support a finding that Legros intended to

29 cause serious injury or engaged in conduct which tends to effect

30 such injury. Shooting a gun "in the air," as Legros's conduct

31 was described by the only eyewitness statement introduced at

32 sentencing, is insufficient to support a finding of attempted
 Although a police officer testified that an expended 5

bullet matched to Legros's gun was found within a vehicle parked

in the vicinity of the shooting, and Bullock said that the police

told him they found a bullet hole in Passius's car, the record on

appeal does not indicate whether Passius was in or near the car

when the gun was discharged.

12

1 first-degree assault. See People v. Leonardo, 89 A.D.2d 214,

2 215-16, 455 N.Y.S.2d 434, 435-36 (4th Dep't 1982) (finding

3 evidence insufficient to support intent to cause serious physical

4 injury where defendant aims gun at tree), aff'd, 60 N.Y.2d 683,

5 455 N.E.2d 1261, 468 N.Y.S.2d 466 (1983); see also United States

6 v. Pimentel, 346 F.3d 285, 298 (2d Cir. 2003) (stating that under

7 New York law of attempts, defendant must engage in conduct that

8 comes "dangerously near" commission of the completed crime, and

9 that "[i]n the context of attempted murder prosecutions . . . the

10 Government must establish that the defendant pointed a weapon at

11 a victim and was about to kill him with it" (emphasis added)),

12 cert. denied, 543 U.S. 955 (2004). In enhancing Legros's

13 sentence on the basis of aggravated assault, the district court

14 did not explain what evidence it relied upon in finding, if it

15 did so find, that Legros aimed and shot at Passius.5

16 We cannot say that there is insufficient evidence to

17 support the enhancement on this basis. The record on appeal does

18 not include a full transcript of Legros's trial, and the district

19 court is, of course, more familiar with the facts of and

20 proceedings in this case than are we. But, as with the reckless

21 endangerment theory, we are unable to affirm a finding of felony

22 assault without a more detailed explanation by the district court
 Upon review of the record, we find a possible third basis 6

that the district court may have relied on for the section

2K2.1(b)(6) enhancement: criminal possession of stolen property. 

See N.Y. Penal Law § 165.45(4). Neither the defendant nor the

government raised an argument to challenge or defend the

enhancement on that basis. The district court, however, made no

finding that Legros knew the firearm was stolen, an essential

element of felony possession of stolen property under New York

law. See Krause v. Bennett, 887 F.2d 362, 370 (2d Cir. 1989). 

Because the PSR states that the weapon had been stolen nearly a

decade before the offense of conviction, the district court could

not, without more, infer Legros's knowledge from the fact of his

unlawful possession. See People v. Davis, 163 A.D.2d 826, 827,

558 N.Y.S.2d 358, 360 (4th Dep't) (mem.), appeal denied, 76

N.Y.2d 939, 564 N.E.2d 678, 563 N.Y.S.2d 68 (1990); People v.

Sturgis, 122 A.D.2d 535, 535, 504 N.Y.S.2d 899, 899 (4th Dep't

1986) (mem.), aff'd, 69 N.Y.2d 816, 506 N.E.2d 532, 513 N.Y.S.2d

961 (1987). As was the case with the other two possible grounds

for a felony offense enhancement, we are unable to affirm a

finding of felony possession of stolen property without a fuller

explanation from the district court identifying the record

evidence to support such a finding.

13

1 identifying the facts in the record that would support such a

2 finding. See United States v. Carter, 489 F.3d 528, 540 (2d Cir.

3 2007), cert. denied, 128 S. Ct. 1066 (2008). We therefore vacate

4 the judgment and remand for resentencing.6

5 III. Remaining Arguments

6 Legros makes several other arguments challenging his

7 sentence. We find them to be without merit.

8 First, Legros argues that under the Fifth and Sixth

9 Amendments his sentence cannot be enhanced under U.S.S.G.

10 § 2K2.1(b)(6) based on his commission of a separate felony

11 offense unless the elements of that offense are proved to a jury

12 beyond a reasonable doubt. We recently rejected that argument. 

13 In United States v. Martinez, 525 F.3d 211, 214-15 (2d Cir. 2008)

14 (per curiam), we adopted the Third Circuit's holding in United
14

1 States v. Grier, 475 F.3d 556 (3d Cir.) (en banc), cert. denied,

2 128 S. Ct. 106 (2007): "Facts relevant to application of the

3 Guidelines -- whether or not they constitute a 'separate offense'

4 -- do not . . . constitute 'elements' of a 'crime' under the

5 rationale of [Apprendi v. New Jersey, 530 U.S. 466 (2000),] and

6 do not implicate the rights to a jury trial and proof beyond a

7 reasonable doubt." Id. at 567-68.

8 Second, Legros argues that the district court was

9 "swayed" in its sentencing decision by evidence that he says was

10 improperly admitted: that he was a member of a gang. Appellant's

11 Br. at 23. We need not decide whether any such evidence was

12 improperly admitted because the district judge explicitly stated

13 in the course of the sentencing that she made no finding as to

14 whether Legros's conduct was gang-related. 

15 Legros also argues that Bullock's statement, read into

16 the record by Detective Loeffler, is unreliable. Although

17 Bullock did not personally testify, hearsay testimony is

18 permitted in sentencing hearings and the district court did not

19 abuse its discretion in finding the hearsay reliable. See United

20 States v. Martinez, 413 F.3d 239, 242-44 (2d Cir. 2005), cert.

21 denied, 126 S. Ct. 1086 (2006).

22 Finally, Legros argues that the district court failed

23 to consider the sentencing factors enumerated in 18 U.S.C.

24 § 3553(a) and failed to treat the Guidelines as advisory. 

25 Although the district judge asked for argument on where within

26 the Guidelines range she should sentence Legros, she also invited
15

1 counsel to make any argument she should consider after reviewing

2 the Guidelines range. In fact, the district judge specifically

3 discussed the section 3553(a) factors, stated that she had

4 considered them all, and stated that the sentence was not imposed

5 "as a result simply of the guidelines." Sentencing Tr. at 80. 

6 "[W]e presume, in the absence of record evidence suggesting

7 otherwise, that a sentencing judge has faithfully discharged her

8 duty to consider the statutory factors." United States v.

9 Fernandez, 443 F.3d 19, 30 (2d Cir.), cert. denied, 127 S. Ct.

10 192 (2006). Overall, the record in this case reflects that the

11 district court considered the section 3553(a) factors and did not

12 consider itself bound by the Guidelines range. See United States

13 v. Brown, 514 F.3d 256, 270 (2d Cir. 2008).

14 CONCLUSION

15 For the foregoing reasons, the judgment of the district

16 court is vacated and the case remanded to the district court for

17 further proceedings.