1 17-3329-cr United States v. Johnson 

## 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 DATABASE (W ITH THE NOTATION A 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14 th day of February, two thousand nineteen. PRESENT: AMALYA L. KEARSE, DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges.

_____________________________________ United States of America, Appellee , v. 17-3329-cr Tameen Johnson, AKA Nitty, Defendant-Appellant .

_____________________________________

FOR DEFENDANT-APPELLANT: Tameen Johnson, pro se, Waymart, PA. FOR APPELLEE: Carina H. Schoenberger (Wayne A. Myers, on the brief ), Assistant United States Attorneys of Counsel; Grant C. Jaquith, United States Attorney for the2 Northern District of New York, Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern District of New York (McAvoy, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Tameen Johnson (“Johnson”), proceeding pro se , was convicted after a jury trial of possession of a firearm following a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He now appeals, rais ing three principal arguments challenging the validity of his conviction and also arguing that his sentence of 235 months’ imprisonment is procedurally infirm. We assume the parties’ fa miliarity with the underlyi ng facts, the procedural history of the case, a nd the issues on appeal. I. Conviction Johnson first raises a sufficiency challenge . While we review a challenge to the sufficiency of evidence de novo , a defendant challenging the sufficiency of the evidence faces a “heavy burden,” and a convict ion will be upheld if “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Harvey , 746 F.3d 87, 89 (2d Cir. 2014) (internal quotation marks omitte d). “[W]e view the evidence in the light most favorable to the government , drawing all inferenc es in the government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.” United States v. Sabhnani , 599 F.3d 215, 241 (2d Cir. 2010) (internal quotation marks omitte d). Under such review, the Government’s evidence was sufficient with respect to Johnson’ s conviction. Among ot her things, the jury3 reviewed a video showing Johnson selling a firearm to a confid ential informant and explaining how to use it, still images from the video s howing Johnson holding the firearm, and the firearm itself. Although Johnson argues there was insuffi cient evidence presented at trial that he possessed the firearm named in the indictment, a “Hi-Point,” because the firearm entered into evidence was marked “S&W,” th e evidence at trial included the testimony of two ATF Special Agents who identified the firearm entered into evidence, with that S&W marking, as a JPC-model Hi-Point firearm. Based on this evidence, a rational juror could have found that the weapon entered into evidence was the one named in th e indictment and that Johnson was guilty of possessing that weapon. Johnson next challenges the district cour t’s admission of evidence regarding a second, uncharged firearm. “We review a district court’s evidentiary ru lings deferentially, reversing only for abuse of discretion.” United States v. Dupree , 706 F.3d 131, 135 (2d Cir. 2013). “A district court abuses its discretion when ‘(1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly errone ous factual finding, or (2) its decision—though not necessarily the product of a legal error or a cl early erroneous factual finding—cannot be located within the range of permissible decisions.’” Id. (quoting Zervos v. Verizon N.Y., Inc. , 252 F.3d 163, 169 (2d Cir. 2001)). A district court may exclude relevant evidence on the ba sis of prejudice pursuant to Rule 403 “if its probativ e value is substantially outwei ghed by a danger of . . . unfair prejudice . . . .” Fed. R. Evid. 403. Here, the district court reas onably concluded that the prob ative value of the evidence regarding the second, uncharged weapon outweighed its prejudicial effect. The existence of the second firearm was emphasized during testimony e licited by the defense. Absent images4 showing the second firearm, the jury might have believed that the witness’s memory was faulty regarding the firearm that was the subject of the indictment. Furthermore, the prejudicial effect was limited, as the jury had already heard evid ence indicating multiple weapons were present on the premises. Accordingly, the district court’s d ecision to admit the evidence was “located within the range of permissible decisions.” Dupree , 706 F.3d at 135 (internal quotation marks omitted). Finally, Johnson argues that the investigation which led to his ar rest required prior judicial authorization and that the record ings created by a confidential informant, who was acting under the direction of government agents, were improperly presented to the grand jury and at trial. But, contrary to Johnson’s claim, warrantless electron ic monitoring and reco rding of communications with the consent of one party is not a violation of Title III. See 18 U.S.C. § 2511(2)(c) (interceptions by a person acting under the color of law not prohibited where “one of the parties to the communication has given prior consent to such interception”); see also United States v.
Barone , 913 F.2d 46, 49 (2d Cir. 19 90). There was no evidence of intercepted communications in violation of Title III presente d in Johnson’s case, either before the grand jury or at trial. II. Sentence We may review the sentence imposed by a distri ct court for both substa ntive and procedural reasonableness. See United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc). Here, however, Johnson makes arguments only as to pro cedural error. “A district court commits procedural error where it fails to calculate the Guidelines range [,] . . . makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory. Id. at 190 (citing Gall v. United
States , 552 U.S. 38, 51 (2007)). “[A] district cour t should begin all sentencing proceedings by correctly calculating the applic able Guidelines range.” Gall , 552 U.S. at 49.5 The district court did not err in applying an offense-le vel enhancement for offenses involving a weapon with an obl iterated serial number. See U.S.S.G. § 2K2.1(b)(4). The evidence at trial showed that the weapon Johnson sold to the informant had been altered to obliterate the weapon’s serial number. Pursua nt to Application Note 8, this enhancement “applies regardless of whether th e defendant knew or had reason to believe that the firearm . . . had an altered or oblitera ted serial number.” Id. at Application Note 8(B). To the extent Johnson takes issue with the district court’s co nsideration of his posse ssion of a gun with an obliterated serial number despite the lack of any re ference to that obliterated serial number in his indictment, the district court properly found at sentencing that the seri al number on the gun was obliterated. See United States v. Garcia , 413 F.3d 201, 220 n.15 (2d Cir. 2005) (“[T]he sentencing judge [is] entitled to find all of the facts that the Guidelines make relevant to the determination of a Guidelines sentence.”). The district court also pr operly adjudicated Johnson an armed career criminal under the Guidelines. Under the Armed Career Criminal Act (“ACCA”), “a person who violates section 922(g) . . . and has three pr evious convictions . . . fo r a violent felony or a se rious drug offense, or both” is subject to a fifteen-year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). A “violent felony” is defined as “any crime punishable by imprisonment for a term exceeding one year” that, as relevant here, “has as an element th e use, attempted use, or threatened use of physical force against the person of anothe r.” 18 U.S.C. § 924(e)(2)(B). In Johnson v. United States , 559 U.S. 133 (2010), the Supreme Court held that th e term “physical force” in this definition
“means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140; see also Stokeling v. United States , 139 S. Ct. 544, 553 (2019) (“[T]he force necessary6 to overcome a victim’s physical resistance is inhe rently ‘violent’ in the sense contemplated by Johnson .”). Johnson argues that his prior New York convi ction for attempted third-degree robbery, in violation of New York Penal Law (“NYPL”) § 160.05, does not qualify as a predicate offense under the ACCA and, by extension, the armed career criminal guideline. See U.S.S.G. § 4B1.4. The New York robbery statute defines robbery as “forcible stealing” and states that a “person forcibly steals property and comm its robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physi cal force upon another person for the purpose of . . . preventing or overcoming resistance to the taking of property,” compelling someone to deliver the property, or engaging in other conduct that aids the larceny. NYPL § 160.00. Under NYPL § 160.05, a person commits th ird-degree robbery by “forcibly steal[ing] property” without additional aggravating factors. Id. § 160.05. Johnson’s argument is squarely fo reclosed by our re cent decision in United States v. Thrower , in which we held that a New York convict ion for attempted robbery in the third degree categorically constitutes a violent felony under th e ACCA. 2019 WL 385652 at *4 (2d Cir. Jan. 31, 2019). There we determined that “[b]y its plain language, the New York robbery statute matches the ACCA definition of a ‘violent felony,’” as it includes the term “physical force” as it has been defined at common law. Id. at *3; see also Stokeling , 139 S. Ct. at 555 (“[T]he term ‘physical force’ in ACCA encompasses the de gree of force necessary to commit common-law robbery.”). Furthermore, New York’s stringent test for attempt requires “that a person be so ‘dangerously near’ forcibly stea ling property ‘that in all reasona ble probability’ she would have completed the robbery but for interference.” Thrower , 2019 WL 385652 at *4. Accordingly,7 we find no error in the distri ct court’s conclusion that Jo hnson’s New York conviction for attempted robbery in the third degree required that he be sentenced under th e armed career criminal guideline. III. Ineffective Assistance of Counsel To the extent Johnson seeks to preserve his ine ffective assistance of c ounsel claim, we have expressed a preference to hear such claims on co llateral review, to pe rmit the record to be “adequately developed to allow us to decide” it. See United States v. Doe , 365 F.3d 150, 152 (2d Cir. 2004); see also Massaro v. United States , 538 U.S. 500, 504–05 (2003). We express no view as to the merits of this claim, and Johnson may, if he wishes, present his claim of ineffective assistance of counsel in a prope rly filed 28 U.S.C. § 2255 motion. We have considered all of Johnson’s remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court