12-2552-cr
United States v. Boston
                                  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 August, two thousand thirteen.

PRESENT:
                     PIERRE N. LEVAL,
                     JOSÉ A. CABRANES,
                     CHESTER J. STRAUB,
                                   Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                             v.                                     No. 12-2552-cr

IVAN BOSTON, AKA IVAN WILLIAMS, AKA MARVIN BOSTON, AKA EVAN WILLIAMS

            Defendant-Appellant.
_____________________________________

FOR DEFENDANT-APPELLANT:                             Michele J. Hauser, New York, NY.

FOR APPELLEE:                                        David C. James, Michael P. Canty, Assistant
                                                     United States Attorneys for Loretta E. Lynch,
                                                     United States Attorney for the Eastern
                                                     District of New York, Brooklyn, NY.

        Appeal from a judgment of conviction entered on June 20, 2012 by the United States
District Court for the Eastern District of New York (Dora L. Irizarry, Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of conviction is AFFIRMED.

        Defendant-appellant Ivan Boston (“Boston” or “defendant”) appeals from the District
Court’s judgment of conviction, following a jury trial, for being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Boston, challenges the firearm
evidence introduced against him at trial and claims that his sentence is procedurally and substantively
unreasonable.1 We assume the parties’ familiarity with the facts and procedural history of this case,
to which we refer only as necessary to explain our decision to affirm.

                                                   BACKGROUND

        The evidence presented at trial demonstrated that Boston was arrested in the early morning
hours of January 16, 2011, after two police officers observed him asleep at the wheel of a vehicle
stopped at a traffic light. The officers noticed that Boston’s vehicle was running and in the “drive”
position. Although he was asleep, Boston’s foot rested on the brake pedal and was the only thing
preventing the vehicle from dangerously moving forward into the intersection. In the course of
their subsequent conversation with Boston, the officers noted alcohol on his breath and other signs
of intoxication. Boston was ordered out of his vehicle and, while standing outside of it, he began to
reach toward his pockets. Before he could reach them, however, the officers searched his pockets,
finding a semiautomatic firearm in one and a revolver in the other, and placed him under arrest.

       On February 14, 2011, Boston was indicted by a federal grand jury for being a felon in
possession of a firearm. Prior to trial, he submitted an affidavit that flatly contradicted the officers’
account of the events surrounding his arrest and moved to suppress the evidence of the firearms.
Following testimony and oral argument before the District Court, Judge Irizarry denied defendant’s
motion to suppress and the case proceeded to trial.

        After a two-day trial, the jury returned a guilty verdict on September 14, 2011. At a
sentencing hearing on April 11, 2012, the District Court accepted the Guidelines calculation of the
U.S. Probation Office that defendant was subject to an adjusted offense level of 22, based in part on
an obstruction of justice enhancement and a Criminal History Category of IV.2 The District Court
then considered whether a departure under Guidelines Section 4A1.3(a)(1) was appropriate and, in
view of Boston’s lengthy criminal history, agreed with the recommendation in the Presentencing

1Boston also raises other arguments pro se, including claims that the District Court committed various errors that
affected his substantial rights.

2The District Court found it “clear” that defendant had attempted to obstruct justice by submitting false statements in
his affidavit supporting his motion to suppress the firearms recovered incident to his arrest. See United States v. Lincecum,
220 F.3d 77 (2d Cir. 2000). The District Court also noted that defendant did not receive an adjustment for the
acceptance of responsibility.
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Report that it was. The District Court, therefore, adjusted Boston’s Criminal History to Category VI
by counting two convictions for attempted robbery in the second degree that were otherwise outside
the Criminal History time period. This resulted in a Guidelines range of 84-105 months. The
District Court then considered the factors outlined in 18 U.S.C. 3553(a) and determined that a non-
Guidelines sentence was appropriate. In making this determination, the District Court considered
the frequency and nature of Boston’s criminal acts, especially his violent acts, his numerous
violations of parole and while incarcerated, his failure to reform after either lenient or harsh
sentences, and his failure to take responsibility for, or to show remorse for, his most recent criminal
conduct. The District Court ultimately sentenced Boston to a term of 120 months’ imprisonment
and three years of supervised release.

        This timely appeal followed.

                                             DISCUSSION

         On appeal, Boston once again challenges the firearm evidence introduced against him at trial
and claims that his sentence is procedurally and substantively unreasonable. We review a district
court’s ruling on a suppression motion for clear error as to the district court’s factual findings and de
novo as to questions of law. United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004). The
evidentiary record is reviewed in the light most favorable to the government. United States v. Rosa,
626 F.3d 56, 61 (2d Cir. 2010). We review a defendant’s sentence using an abuse-of-discretion
standard. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc); see also In re Sims, 534
F.3d 117, 132 (2d Cir. 2008) (noting that a district court abuses its discretion if it “base[s] its ruling
on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a
decision that cannot be located within the range of permissible decisions” (internal citation and
quotation marks omitted)). Our review typically consists of a two-step process. First we “must [ ]
ensure that the district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). “[W]e then review the substantive
reasonableness of the sentence, reversing only when the trial court’s sentence ‘cannot be located
within the range of permissible decisions.’” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010)
(quoting Cavera, 550 F.3d at 189).

        We consider Boston’s arguments in turn.




                                                     3
                                                             A.

        Boston first claims that the police stop of his vehicle at the traffic intersection was not
supported by probable cause and that there was no support that he was intoxicated. Upon a review
of the record, we find this argument, which was raised before the District Court in the first instance,
to lack merit. Both the District Court and the jury were entitled to credit the testimony of the
arresting officers rather than accept Boston’s version of the facts. Indeed, the District Court noted
that the government produced a recording of a prison telephone call from Boston to an associate,
shortly after his arrest, admitting that he had fallen asleep at the traffic light and was “juiced.”
Accordingly, we conclude that the District Court did not err in denying defendant’s motion to
suppress the fruits of the search conducted contemporaneously to his arrest.

                                                             B.

        Boston also claims that his sentence is procedurally and substantive unreasonable.3 Having
conducted a de novo review of the record, we conclude that defendant’s sentence of 120 months’
imprisonment is procedurally and substantively reasonable, substantially for the reasons given by the
District Court in its thorough and well-reasoned oral rulings at the defendant’s sentencing hearings
of April 11, 2012 and May 10, 2012.

                                                   CONCLUSION

        Having reviewed the record, we have considered all of defendant’s arguments on appeal and
find them to be without merit. Accordingly, we AFFIRM the June 20, 2012 judgment of conviction
of the District Court.

                                                                    FOR THE COURT:
                                                                    Catherine O’Hagan Wolfe, Clerk




3 Defendant admits that our decisions in United States v. Brown, 514 F.3d 256 (2d Cir. 2008), and United States v. Hurell, 555
F.3d 122 (2d Cir. 2009), are binding upon the District Court, but nonetheless invites us to reconsider those decisions,
arguing that there is a split of authority among the courts of appeal. We decline to do so. Those decisions remain the
law of this circuit until overruled by either an en banc panel of this Court or by the Supreme Court, In re Payne, 707 F.3d
195, 205 (2d Cir. 2013), and, in any event, a difference in authority was acknowledged when those opinions were
reached. See Brown, 514 F.3d at 265-66.
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