09-1983-cr
United States v. Bloomfield


                                   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 DOCUM ENT FILED W ITH
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 Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of September, two thousand ten.

Present:
            JOSEPH M. McLAUGHLIN,
            PETER W. HALL,
                               Circuit Judges,
                             *
            JANE A. RESTANI,
                               Judge.
________________________________________________

UNITED STATES OF AMERICA,

                   Appellee,

                              v.                            No. 09-1983-cr

NIGEL BLOOMFIELD,

                   Defendant-Appellant.

________________________________________________

FOR DEFENDANT-APPELLANT:                       LAWRENCE GERZOG, New York, New York.



         *
         Chief Judge Jane A. Restani of the United States Court of International Trade, sitting by
designation.
FOR APPELLEE:                       PREET BHARARA, United States Attorney for the
                                    Southern District of New York, (Brian A. Jacobs,
                                    Katherine Polk Failla, Assistant United States
                                    Attorneys, Of Counsel, on the brief), New York, New
                                    York.
________________________________________________

       Appeal from the United States District Court for the Southern District of New York (Rakoff,

J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the District Court be and hereby is AFFIRMED.

       Nigel Bloomfield appeals from a sentence of 18 months in prison imposed for a

conviction, following a guilty plea, for conspiracy to distribute and possess with intent to

distribute 1,000 kilograms and more of mixtures and substances containing a detectible amount

of marijuana in violation of 21 U.S.C. §§ 846, 812, 841(a)(1), and 841(b)(1)(A). We assume the

parties’ familiarity with the facts and procedural history of the case, to which we refer only as

necessary to explain our decision.

       Bloomfield first challenges as procedural error the district court’s decision to deny him a

mitigating role reduction under the United States Sentencing Guidelines. See U.S.S.G. § 3B1.2.

Generally speaking, we review a sentence for procedural and substantive reasonableness under

an abuse of discretion standard. United States v. Cavera, 550 F.3d 180, 187, 189 (2d Cir. 2008)

(en banc). “[O]nce we are sure that [a] sentence resulted from the reasoned exercise of

discretion, we must defer heavily to the expertise of district judges.” Id. at 193. With regard to

the specific issue of role adjustments in this case, we review for clear error a district court’s

finding based on which it grants or denies the adjustment. United States v. Castano, 234 F.3d

111, 113 (2d Cir. 2000).

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       “The defendant bears the burden of establishing by a preponderance of the evidence that

he is entitled to a mitigating role adjustment under section 3B1.2 of the Sentencing Guidelines.”

United States v. Carpenter, 252 F.3d 230, 234 (2d Cir. 2001). A minimal role adjustment “is

intended to cover defendants who are plainly among the least culpable of those involved in the

conduct of a group” and “the defendant’s lack of knowledge or understanding of the scope and

structure of the enterprise and of the activities of others is indicative of [such] a role.” U.S.S.G.

§ 3B1.2 cmt. n.4. Meanwhile, a minor participant is one who “is less culpable than most other

participants, but whose role could not be described as minimal.” Id. § 3B1.2 cmt. n.5. “A

reduction will not be available simply because the defendant played a lesser role than his co-

conspirators; to be eligible for a reduction, the defendant’s conduct must be ‘minor’ or ‘minimal’

as compared to the average participant in such a crime.” United States v. Rahman, 189 F.3d 88,

159 (2d Cir. 1999). Thus, in reviewing a district court’s decision regarding a mitigating role

adjustment,

       we are mindful that a sentencing court’s assessment of the defendant’s role in
       criminal activity is highly fact-specific and depends upon the nature of the
       defendant’s relationship to other participants, the importance of the defendant’s
       actions to the success of the venture, and the defendant’s awareness of the nature and
       scope of the criminal enterprise.

Carpenter, 252 F.3d at 234 (internal quotation marks and brackets omitted).

       Bloomfield asserts on appeal that the district court made no factual findings and gave no

consideration to the criteria set forth in Application Notes 4 and 5 to U.S.S.G. § 3B1.2. He

argues, for this reason, that his sentence is unreasonable because it is not accompanied by the

requisite factual findings. It is clear from our review of the transcript, however, that

Bloomfield’s request for a role reduction was the subject of an extended colloquy during the


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sentencing hearing. The district court initially summarized the government’s position that the

stash house with which Bloomfield was involved was integral to the success of the conspiracy;

that because Bloomfield accepted marijuana as payment, he also played a role beyond that of

stash house manager; and that Bloomfield understood the scope and structure of the operation.

Immediately following this summary, the district court asked if Bloomfield disputed the

government’s rendition of the facts. Defense counsel did not contest the facts but only the “spin

on the same set of facts.” He then went on to acknowledge that Bloomfield rented part of his

warehouse space to his co-conspirators so they could use the space as a “stash house for their

marijuana,” that he was “paid both in cash and . . . in marijuana, which he then turned around

and gave to . . . a retail seller . . . of marijuana,” and that he “[o]bviously . . . knew [his co-

conspirators] were selling [marijuana].”

        Additionally, the record reveals that telephone conversations between Bloomfield and

members of the conspiracy were intercepted by judicially authorized wiretaps and that these

conversations disclosed the conspiracy’s source of marijuana supply. The district court stated

that it agreed with the government and that the “criteria laid out at the guidelines and the

application notes indicate that the lesser position that [Bloomfield] seeks to qualify for is really

not available to him.” It is clear the district court considered the guidelines and application notes

but declined to provide a mitigating role adjustment because the facts—which Bloomfield did

not materially dispute—did not support such a reduction. In these circumstances, we conclude

that the district court’s decision denying Bloomfield a mitigating role adjustment was not clearly

erroneous.

        Bloomfield next argues that the district court’s sentence was unreasonable because the


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“sole factor” influencing the significant period of incarceration he received was the need for

general deterrence as mandated by Congress. See 18 U.S.C. § 3553(a)(2)(B) (The court “shall

consider . . . the need for the sentence imposed . . . to afford adequate deterrence.”). We view

this as a challenge to the substantive reasonableness of the sentence which we review under an

abuse of discretion standard, “set[ting] aside a district court’s substantive determination only in

exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions.” Cavera, 550 F.3d at 189 (emphasis and internal quotation marks

omitted). “[W]e take into account the totality of the circumstances, giving due deference to the

sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of

district courts,” id. at 190, and “consider whether the length of the sentence is reasonable in light

of the factors outlined in 18 U.S.C. § 3553(a),” United States v. Rattoballi, 452 F.3d 127, 132

(2d Cir. 2006).

       Bloomfield’s argument that his sentence was substantively unreasonable given its

significant length is belied by the record. At sentencing, the district court stated that when it

imposes a sentence it tries to take the “measure of the human being” into account. In so doing,

the district court examined Bloomfield’s actions that led to his conviction as well as his current

medical condition. Furthermore, in considering his past and his future, his family’s support, his

educational level, and his abilities, the district court stated that these factors suggest Bloomfield

will not be a recidivist and has every likelihood of becoming a contributing member of society.

Yet, weighing those factors against Congress’s intent that sentences involving unlawful

substances serve a goal of general deterrence, the district court determined that it was not

appropriate to sentence Bloomfield to only a few months in prison. After “weighing all those


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things together,” the district court sentenced Bloomfield to 18 months’ imprisonment, which was

52 months below the bottom of the applicable guidelines range. We see no abuse of discretion in

the below-Guidelines sentence that Bloomfield received.

       For the reasons stated, we AFFIRM the judgment of the district court.



                                            FOR THE COURT:
                                            CATHERINE O’HAGAN WOLFE, CLERK




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