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

------------------------------------- 13Before: 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 16New York (Joanna Seybert, Judge) sentencing him principally to a 17 term of imprisonment of 120 months for being a felon in 18possession 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 10principally 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 5police 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. 9He was arrested by the officer. The gun he discarded was later 10matched 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 13possession 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 16prepared 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, 25however, 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 10proper 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's5 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 17permitted 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 30possessed 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 8preponderance 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). 19A. 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 25misdemeanor, "when he recklessly engages in conduct which creates 26 a substantial risk of serious physical injury to another person."8 1N.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 serious9 1physical 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 26pistol 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. ButThe 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 18by 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 411 1when . . . [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, 6he 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 31was described by the only eyewitness statement introduced at 32 sentencing, is insufficient to support a finding of attemptedAlthough 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 6v. Pimentel, 346 F.3d 285, 298 (2d Cir. 2003) (stating that under 7New 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 20proceedings 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 courtUpon 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 9Amendments 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 12beyond 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 United14 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 18permitted 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. 25Although the district judge asked for argument on where within 26 the Guidelines range she should sentence Legros, she also invited15 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 13v. 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.