16-2090-cr
United States v. Williams-Bey


                                 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 (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 for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of May, two thousand seventeen.

PRESENT: REENA RAGGI,
                 SUSAN L. CARNEY,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,
                                 District Judge.*
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                                v.                                       No. 16-2090-cr

GABRIEL HORACE WILLIAMS-BEY, AKA “Money,”
AKA “Mugga,” AKA “G Money,”
                     Defendant-Appellant,

MELKUAN SCOTT, ARTHUR STANLEY, JEFF
ANTOINE,     RASHAWN      DUBOSE,  GREGORY
THOMAS, AKA “QUANNY,” AKA “JIM,” TYSHAWN
MCDADE, AKEEM MANOO, RICARDO HOWE,
NEHELIAH BARNETT, RAYMOND RIVERA,
JACKSON KYRIN-ROBERT, TAFARIE GREEN, AKA
“FARIE,” IRIS PEREZ, AFESHA MANOO, HORACE

*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.

                                                     1
STARKS, JR., JAMIE COLEMAN, ARNOLD
THOMPSON, JERROD HALL, RAQUIM SMITH, AKA
“RAKIM,” JAMAL HOWELL, RASHAWN HILL,
JASON WATSON, SHAQILLE BROWN, MICHAEL
MORRISON,
                                 Defendants.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          W. THEODORE KOCH III, Esq., Niantic,
                                                  Connecticut.

APPEARING FOR APPELLEE:                   JOHN H. DURHAM, Assistant United States
                                          Attorney (Marc H. Silverman, Assistant United
                                          States Attorney, on the brief), for Deirdre M.
                                          Daly, United States Attorney for the District of
                                          Connecticut, New Haven, Connecticut.

       Appeal from a judgment of the United States District Court for the District of

Connecticut (Jeffrey A. Meyer, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 20, 2016, is AFFIRMED.

       Defendant Gabriel Horace Williams-Bey, who was convicted following a guilty

plea of conspiracy to distribute and possess with intent to distribute crack cocaine, see 21

U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 846, appeals his 96-month prison sentence as infected

with procedural error insofar as the district court, in calculating drug quantity, relied on

an identified cooperator’s hearsay report of seeing Williams-Bey purchase a “brick”

(1,000 grams), G.A. 214, of crack cocaine. Specifically, Williams-Bey argues that he

was neither given notice that the government would urge the district court to find the

cooperator credible based on the cooperator’s testimony at a related trial over which the

sentencing judge presided, nor given an opportunity to challenge that credibility. We

generally review a district court’s sentencing decisions only for reasonableness, applying

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a deferential abuse-of-discretion standard to both alleged procedural and substantive

errors. See Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Cavera, 550

F.3d 180, 189 (2d Cir. 2008) (en banc). The government submits that defendant’s

failure to raise a notice-and-opportunity objection in the district court warrants

application here of the even more deferential plain error standard of review. See United

States v. Arlene, 835 F.3d 277, 280 (2d Cir. 2016) (requiring defendant to show that plain

error affected substantial rights and seriously affected fairness, integrity, or public

reputation of judicial proceedings).      We need not pursue the point here because

Williams-Bey’s appeal fails under either standard. In explaining that conclusion, we

assume the parties’ familiarity with the facts and record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.

       At the outset, we note that Williams-Bey does not—and cannot—identify inherent

error in the district court’s consideration at sentencing of facts disclosed by a cooperating

confederate in an out-of-court statement.        A sentencing court’s “largely unlimited

discretion to review information relevant to the defendant and his crime permits it to

consider hearsay evidence,” United States v. Broxmeyer, 699 F.3d 265, 280 (2d Cir.

2012) (internal quotation marks omitted), as well as “information gleaned from a trial in

which the person to be sentenced was neither a defendant nor represented by counsel,”

United States v. Cacace, 796 F.3d 176, 191 (2d Cir. 2015) (internal quotation marks and

alterations omitted). The government was not required to present this evidence at a

Fatico hearing, particularly given defense counsel’s express statement to the district court

that “[t]he defense d[id] not need a Fatico hearing.” G.A. 353; see United States v.

                                             3
Carmona, 873 F.2d 569, 574 (2d Cir. 1989) (explaining that due process did not require

that defendant be afforded confrontation or cross-examination of declarant upon whose

statement district court relied at sentencing). And even if Williams-Bey had requested a

Fatico hearing, the district court was not required to hold one if defendant otherwise had

sufficient notice and opportunity to respond to the government’s position. See United

States v. Broxmeyer, 699 F.3d at 280; accord United States v. Cacace, 796 F.3d at 191.

Williams-Bey argues that he was not afforded such notice and opportunity.

      That argument is defeated by the record, which shows numerous means by which

Williams-Bey was given notice that the government’s drug-weight evidence rested

largely on the cooperator. These included pre-trial disclosures, arguments at his guilty

plea proceeding, the presentence report (“PSR”), the government’s first sentencing

memorandum, and the initial February 2016 sentencing proceeding.            See generally

United States v. Espinoza, 514 F.3d 209, 212–13 (2d Cir. 2008) (explaining that

opportunity to review PSR prior to sentencing places defendant on notice that district

court could rely thereon). Indeed, that proceeding was continued for the very purpose of

giving Williams-Bey additional time to consider and respond to the government’s

drug-weight calculations, which the district court acknowledged were “attributed to a

specific transaction by a cooperating witness.” G.A. 233.

      In response, Williams-Bey argues that, even if he had notice of the cooperator’s

statement implicating him in a 1,000-gram crack transaction, he was not given notice that

the government would urge the sentencing judge to credit the cooperator based on the

judge’s own observation of the cooperator testifying at the trial of related defendants.

                                            4
Indeed, Williams-Bey complains that the government never provided him with a

transcript of the cooperator’s testimony. The argument is defeated by Cacace, 796 F.3d

at 191, as already discussed, and by Williams-Bey’s failure, when sentencing resumed on

June 8, 2016, to request a Fatico hearing or even the referenced transcript.

       We do not pursue the point further because, even if Williams-Bey could

demonstrate a due process denial as to notice, that error would be harmless.   The district

court did not rely on the 168–210 month Guidelines sentencing range calculated by

reference to drug quantities disclosed by the conspirator. Rather, it expressly granted

the variance urged by defendant, which substituted a 1:1 crack-to-powder cocaine ratio

for the Guidelines 18:1 ratio. See generally Kimbrough v. United States, 552 U.S. 85,

103, 110–11 (2007). The plea agreement states that, if the district court applied the 1:1

ratio, “then the parties agree that the defendant’s Guidelines base offense level would be

24 pursuant to the provisions of U.S.S.G. § 2D1.1(c)(8) (at least 500 grams, but less than

2 kilograms of cocaine),” which, with a downward adjustment of two levels for

acceptance of responsibility, would yield a total offense level of 22. G.A. 137.1 The

district court adopted that agreement here. See id. at 299 (stating that it would “honor

th[e] agreement of the parties” to offense level of 22). Moreover, when the court asked

whether this Kimbrough variance mooted any drug-quantity disagreement that would

have remained for the 18:1 calculation, defense counsel stated that it did. See id. at 296

1
  Williams-Bey’s plea agreement anticipated a criminal history category of IV, resulting
in a Guidelines range of 63–78 months. The district court, however, adopted the PSR’s
Criminal History Category VI recommendation, which resulted in the 84-to-105-month
range within which Williams-Bey was sentenced. Williams-Bey does not here
challenge this criminal history determination.

                                             5
(“[T]he amount filtered through the 1:1 ratio is kind of academic if the Court were

inclined to apply [the variance]. Whether the Court finds the higher amount or lower

amount, either way when you apply the 1:1 ratio, it gets funneled into the same

calculation.”).2 We need not decide if this response amounted to a true waiver of a

procedural error challenge to drug quantity calculations. See United States v. Quinones,

511 F.3d 289, 321 (2d Cir. 2007) (discussing “true waiver”).           The statement, read

together with the quoted language from the plea agreement and the variance granted,

supports the conclusion that the district court relied on the parties’ agreement, not its own

crack-quantity findings, in determining sentence. Indeed, the district court stated as

much in denying Williams-Bey’s Rule 35 motion, a decision not challenged on appeal.

See G.A. 352–53 (stating that any error in relying on cooperator “had no effect” on

court’s determination of appropriate sentence, which was based on “parties’ express

stipulation in their plea agreement of the applicable drug quantity and base offense level

that should apply in the event that the Court granted such a variance/departure”). Thus,

because the record convincingly shows “that the district court would have imposed the

same sentence in any event,” the alleged notice error here was necessarily harmless.

United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015).




2
  The district court also explained without objection at the first sentencing hearing that
“[i]t appears that [the parties] agreed upon at least 500 grams for purposes of a powder
cocaine calculation.” G.A. 237.

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      We have considered Williams-Bey’s remaining arguments and conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




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