10-2588-cr (L) USA v. Yeagley, et al.
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 18 thday of May, two thousand twelve. 4 5 PRESENT: R ICHARD C. W ESLEY , 6 RAYMOND J. L OHIER , J R ., 7 C HRISTOPHER F. DRONEY 8 Circuit Judges , 9 10 11 UNITED STATES OF AMERICA, 12 13 Appellee , 14 15 -v.- 10-2588-cr (Lead) 16 11-0098-cr (Con) 17 18 RAMEL WILLIAMS, CHRISTOPHER YEAGLEY, AKA TAZ, 19 20 Defendants-Appellants. 21 22 23 24 FOR APPELLANTS: MALVINA NATHANSON, New York, NY, for 25 Defendant-Appellant Christopher Yeagley, 26 aka Taz

. 27 28 Larry Sheehan, Law Office of Larry 29 Sheehan, Bronx, NY, for 30 Defendant-Appellant Ramel Williams

. 31 32 332 FOR APPELLEE: DIANE GUJARATI, Assistant United States 1 Attorney (Anna M. Skotko, Chi T. Steve 2 Kwok, Assistant United States Attorneys, 3 on the brief ), forPreet Bharara, United 4 States Attorney for the Southern District 5 of New York, New York, NY. 6 7 Appeal from the United States District Court for the 8 Southern District of New York (Karas, J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 11

**AND DECREED**that the judgments of the United States District 12 Court for the Southern District of New York be **AFFIRMED**

. 13 Defendant-Appellant Christopher Yeagley appeals the 14 decision of the United States District Court for the 15 Southern District of New York (Karas, J. ) denying Yeagley’s 16 motion to suppress and the court’s unanimity instruction to 17 the jury in response to a question posed by the jury during 18 deliberation. Defendant-Appellant Ramel Williams appeals 19 from the district court’s decision sentencing him to 360 20 months’ imprisonment following Williams’s plea of guilty to: 21 (1) conspiring to distribute and possess with intent to 22 distribute one kilogram or more of heroin in violation of 21 23 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count I); (2) 24 distributing and possessing with intent to distribute heroin 25 in violation of 21 U.S.C. §§ 812, 841(a)(1), and 26 841(b)(1)(C) (Count III); (3) distributing and possessing 273 with intent to distribute MDMA (ecstasy) in violation of 21 1 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C) (Count IV); (4) 2 possessing a firearm after being convicted of a felony in 3 violation of 18 U.S.C. § 922(g)(1) (Count V); and (5) using 4 and carrying a firearm during and in relation to a drug 5 trafficking crime for which he may be prosecuted in federal 6 court in violation of 18 U.S.C. § 924(c)(i)(A)(I) (Count 7 VI). 8 Defendant-Appellant Yeagley argues that the district 9 court erred in denying his motion to suppress heroin seized 10 from the front lawn of Yeagley’s home on the morning of his 11 arrest on March 26, 2008. He contends the seizure violated 12 his Fourth Amendment rights. The district court determined 13 that exigent circumstances warranted the officer’s seizure 14 of heroin. The officer witnessed Yeagley drop the heroin 15 over a fence and onto Yeagley’s front yard. We review a 16 district court’s determination of exigent circumstances for 17 clear error. United States v. MacDonald , 916 F.2d 766, 769 18 (2d Cir. 1990). The seizure occurred at 3:30 a.m. on March 19 26, 2008 in a high-crime area. Officer Lahar observed 20 Yeagley in a hand-to-hand drug transaction with a third 21 party on the steps leading to Yeagley’s home. Officer Lahar 22 drove around the block, stopped his vehicle in front of 234 Yeagley’s home, and asked Yeagley and the third party what 1 they were doing. At that point Officer Lahar saw the third 2 party put something in his mouth and Yeagley drop something 3 over a waist-high fence onto his yard. After a backup 4 officer arrived and began to search Yeagley, Officer Lahar 5 looked over the fence in the area where Yeagley had dropped 6 something and saw several packets of heroin. Officer Lahar 7 told the backup officer to place Yeagley in custody, and he 8 then heard Yeagley yell toward his home. Officer Lahar then 9 stepped over the waist-high fence and seized the heroin. 10 All of these facts support the district court’s 11 determination that Officer Lahar would have been objectively 12 reasonable in believing that the evidence was at risk of 13 destruction and the officers’ safety was threatened. See 14 United States v. Schaper , 903 F.2d 891, 894 (2d Cir. 1990). 15 Because we find the district court’s determination not 16 clearly erroneous, we affirm its denial of Yeagley’s motion 17 to suppress. 18 Yeagley also appeals the district court’s response to a 19 jury question raised on the morning of the second day of 20 deliberations. The jury wrote to the judge asking: “Must we 21 be unanimous on both charges against C. Yeagley? If not, 22 what happens?” Judge Karas explained his interpretation of 235 the jury’s question and asked both defense counsel and the 1 government whether either party had a different view. Both 2 responded “No.” Judge Karas also stated his proposed 3 response to the jury’s question on the record and asked both 4 defense counsel and the government whether they agreed with 5 the proposed response. Both defense counsel and the 6 government indicated that they did. Judge Karas then 7 instructed the jury accordingly: “The answer is, you must be 8 unanimous as to each of the two charges in the Indictment, 9 and of course Mr. Yeagley is the only person charged, so the 10 answer is you must be unanimous. All right. I hope that 11 answers your question.” 12 On appeal, Yeagley argues that the district court’s 13 response was erroneous because it coerced a guilty verdict 14 and deprived Yeagley of a fair trial. But because Yeagley’s 15 counsel explicitly accepted the court’s proposed instruction 16 before it was given, he has waived his right to challenge 17 that instruction on appeal. See United States v. Polouizzi , 18 564 F.3d 142, 153 (2d Cir. 2009). 19 Defendant-Appellant Williams argues that the district 20 court erred in failing to depart downward from the 21 sentencing Guidelines on the basis that his Criminal History 22 Category overstated his actual criminal history and that his 236 360-month sentence violates the Eighth Amendment’s 1 prohibition on cruel and unusual punishment. The district 2 court’s refusal to downwardly depart is unappealable. See 3 United States v. Stinson , 465 F.3d 113, 114 (2d Cir. 2006). 4 Williams’s sentence does not violate the Eighth Amendment 5 because it is not grossly disproportionate to the crime, is 6 in line with several Supreme Court cases affirming sentences 7 comparable to or longer than Williams’s sentence for 8 similar, or less serious crimes, and represents a sentence 9 at the low end of the Guidelines range. 10 For the foregoing reasons, the judgments of the 11 district court are hereby **AFFIRMED**

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13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17