11-2459-cr
United States v. Stroman

                                      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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 29th day of August, two thousand and twelve.

PRESENT:

           JON O. NEWMAN,
           JOSÉ A. CABRANES,
           ROBERT D. SACK,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                     -v.-                                                                  No. 11-2459-cr

TRAVIS STROMAN, a/k/a Timothy Stroman,

                      Defendant-Appellant.
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FOR APPELLANT:                                                            EDWARD S. ZAS, Federal Defenders of New York,
                                                                          Inc., New York, NY.

FOR APPELLEE:                                                             KEVIN TROWEL, Assistant United States Attorney
                                                                          (Peter A. Norling, Zainab Ahmad, Assistant
                                                                          United States Attorneys, on the brief), Brooklyn,
                                                                          NY, for Loretta E. Lynch, United States Attorney
                                                                          for the Eastern District of New York.




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

York (I. Leo Glasser, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the June 15, 2011 order of the District Court be AFFIRMED.

        Appellants appeal from an order of the District Court sentencing him principally to a term of

imprisonment of 96 months. We assume familiarity with the underlying facts and procedural history of

this case, some of which we repeat here for ease of reference.

        This appeal arises out of Stroman’s September 2009 conviction, after a jury trial, on a single

count of being a felon in possession of ammunition in violation of 18 U.S.C. §922(g)(1). At sentencing,

the District Court applied a sentencing enhancement for “assault with intent to kill” (i.e., attempted

murder in the second degree) pursuant to United States Sentencing Guideline § 2A2.1(a)(2). The Court

imposed a sentence of 96 months’ imprisonment―24 months less than the statutory maximum

sentence.

        Stroman appealed from his sentence and conviction, and in United States v. Stroman, 420 Fed.

App’x 100 (2d Cir. Apr. 26, 2011) (“Stroman I”), we affirmed Stroman’s conviction but vacated his

sentence. Holding that the District Court was required to explicitly find that Stroman shot the gun with

the intent to kill the victim, and concluding that the Court had not done so, we remanded the cause to

the District Court for resentencing. Id. at 105.

        Stroman was resentenced on June 8, 2011. On resentencing, the District Court again applied

the “intent to kill” Guideline, holding that Stroman had “intended to attempt to kill” the victim, and

reimposed the same sentence. The Court also filed an opinion explaining its decision, holding that

Stroman “intended to commit [a murder] and took substantial steps to accomplish [this goal by]

pursuing two men into a grocery and fir[ing] his gun at them.” United States v. Stroman, No. 09-CR-

339(ILG), 2011 WL 2444851, at *4 (E.D.N.Y. June 15, 2011) (“Stroman II”).


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       On appeal, Stroman: (1) alleges that the District Court erred in again imposing a sentencing

enhancement pursuant to U.S.S.G. 2A2.1(a)(2); and (2) requests that the case be reassigned, if remanded

for resentencing, to another judge of the Eastern District.

                                               DISCUSSION

       On the prior appeal, the sentence in this case was remanded because the District Court had not

made an explicit finding that the defendant fired his weapon with the intent to kill. Such intent was

required because the enhancement sought to be applied, Section 2A2.1(a) of the Sentencing Guidelines,

covers “Attempted Murder,” and, as we pointed out, the Supreme Court in Braxton v. United States, 500

U.S. 344, 351 n.* (1991), had stated that “an attempt to commit murder requires a specific intent to kill.”

Stroman I, 420 Fed. App’x at 105. We further observed that, pursuant to Braxton, the “district court [was

required to have] concluded, by a preponderance of the evidence, that Stroman actually attempted or

intended to kill his victim. Id. We concluded that the District Court had not explicitly found that

Stroman had shot his gun with the intent to kill one or both victims, and we instructed the Court to

apply the principles of Braxton in order to determine, on remand, whether Stroman was properly subject

to the Guidelines enhancement for attempted second degree murder. Id.

       On remand, the District Court distinguished Braxton on several factual bases related to the

elements of the charges in Braxton’s and Stroman’s cases, as follows:

       First, Stroman did not plead guilty. There was no plea agreement that specifically
       established the more serious offense of murdering an officer of the United States, the
       crime proscribed by 18 U.S.C. § 1114. Braxton specifically did not plead to that charge.
       He explicitly stated he did not intend to harm a Marshal, hence the specific intent reference upon
       which the Circuit Court seized had no relevance to this case. Stroman did not plead guilty. . . .
       The murder Stroman intended to commit and took substantial steps to
       accomplish―pursuing two men into a grocery and fir[ing] his gun at them[―]was
       dramatically captured on the screen of the grocery’s video camera. The murder he
       attempted to commit was defined by N.Y. Penal Law § 125.25, not the murder of a police
       officer defined in § 125.27, the crime analogous to 18 U.S.C. § 1114 charged in Braxton.

Stroman II, 2011 WL 2444851, at *4 (first and third emphases in the original). Although the able district

judge declined to apply the principles set out by the Supreme Court in Braxton, he noted that, in any

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event, “Braxton presents no impediment to the enhancement of Stroman’s sentence[;] it supports it.” Id.;

see also United States v. Stroman, No. 09-CR-339(ILG), Transcript of Resentencing Hrg., June 8, 2011, at 9

(“There is nothing in Braxton which requires specific intent.”).

        The District Court’s analysis of Braxton on remand was unnecessary and, it must be emphasized,

incorrect. Rather than stating a rule specific to the crime with which Braxton was charged, the Supreme

Court in Braxton was stating a general principle of law applicable to attempted murder. See Braxton, 500

U.S. at 351 n.* (“Since the statute [at issue] does not specify the elements of “attempt to kill,” they are

those required for an “attempt” at common law, which include a specific intent to commit the unlawful

act. Although a murder may be committed without an intent to kill, an attempt to commit murder

requires a specific intent to kill.” (citations and internal quotation marks omitted)); see also Gill v. I.N.S.,

420 F.3d 82, 90–91 (2d Cir. 2005) (citing several New York State Appellate Division cases that each held

that “one cannot attempt to commit second degree murder, i.e., cause someone’s death by recklessly

engaging in conduct which creates a grave risk of death to another person, under circumstances evincing

a depraved indifference to human life” (alterations and quotation marks omitted)). That principle

applies to Stroman’s case as well.

        We nevertheless conclude that the District Court’s observation that “[t]he murder Stroman

intended to commit . . . was dramatically captured on the screen of the grocery’s video camera,” Stroman

II, 2011 WL 2444851 at *4, constituted a finding that Stroman had a specific intent to kill one or more

of the victims. We therefore affirm the judgment of the District Court.

                                               CONCLUSION

        We have reviewed each of Stroman’s arguments on appeal and have determined that they are

meritless. The June 15, 2011 judgment of the District Court is affirmed.

                                                            FOR THE COURT,
                                                            Catherine O’Hagan Wolfe, Clerk of Court



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