13-940-cr (L), 13-2058-cr (C), 13-2396-cr (C)
U.S. v. Jones


                                        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
  25th day of June, two thousand fourteen.

PRESENT:    GUIDO CALABRESI,
            GERARD E. LYNCH,
            RAYMOND J. LOHIER, JR.,
                              Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                                                Appellee,

                     v.                                                     Nos. 13-940-cr (L)
                                                                                 13-2058-cr (C)
JERMAINE M. JONES, SAMUEL V. McCANTS,                                            13-2396-cr (C)
MYAISHA G. WHITMORE,

                                                Defendants-Appellants,

CASH WHITMORE, KING S. BURDEN, ELLIOT LOPEZ,
LUIS MELARA, SERRIA A. McGRIFF,

                              Defendants.*
_________________________________________


          *
         The Clerk of Court is respectfully directed to amend the official caption in this case to
conform to the caption above.
FOR APPELLANTS:                       Timothy A. Austin and Molly Corbett, Assistant Federal
                                      Public Defenders, Albany, New York, for Defendant-
                                      Appellant Jermaine M. Jones.

                                      Kevin A. Luibrand, Albany, New York, for Defendant-
                                      Appellant Samuel V. McCants.

                                      MARJORIE M. SMITH, Brooklyn, New York, for Defendant-
                                      Appellant Myaisha G. Whitmore.

FOR APPELLEE:                         PAUL D. SILVER, Assistant United States Attorney (Daniel
                                      Hanlon, Assistant United States Attorney, on the brief), for
                                      Richard S. Hartunian, United States Attorney for the
                                      Northern District of New York, Albany, New York.

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

New York (Frederick J. Scullin, Jr., Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendants-appellants appeal from judgments imposed in connection with their

convictions for conspiracy to possess with intent to distribute more than fifty grams of cocaine

base in the form of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Each

appellant’s case presents separate issues. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.

       1. Jermaine M. Jones

       Jermaine M. Jones was originally sentenced to time served and five years of supervised

release. After violating conditions of his release, Jones was sentenced to an additional term of

nine-months imprisonment and just over four years of supervised release. On appeal, his counsel




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moves for leave to withdraw on the ground that there are no non-frivolous bases to challenge that

judgment, and the government cross-moves for summary affirmance.

       Upon review of the record, we agree that there are no non-frivolous grounds for Jones to

challenge the judgment. Accordingly, defense counsel’s Anders motion and the government’s

motion for summary affirmance are GRANTED.

       2. Samuel McCants

       Samuel McCants was also originally sentenced to time served and five years of

supervised release. Six months before the end of his term of supervision, his probation officer

filed a petition, charging him with five violations of the terms of his release. After a hearing, the

district court revoked McCants’s supervised release and sentenced him to an above-guidelines

term of fourteen months’ imprisonment and thirty months of supervised release. On appeal,

McCants argues that the District Court impermissibly relied on facts not in evidence to impose

that punishment.

       McCants’s probation officer filed a sworn affidavit charging McCants with five

violations of his supervised release conditions. As a part of a deal between the government and

McCants, the government withdrew one of those grounds at McCants’s violation hearing, and

McCants admitted that he was guilty of the remaining four. But the officer’s affidavit remained

in the record, and it apprised the court of the facts surrounding withdrawn violation charge.

According to the sworn statement, the Vermont state police caught McCants with $4,000 in his

car, and when asked about the origin of the cash, McCants told the police that he received the

money from a man who had been identified as a heroin dealer. At the violation hearing, the




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district court informed McCants that it intended to consider those facts as conduct relevant to the

admitted violations. McCants did not object to the District Court’s approach.

       McCants now argues that the court improperly relied on statements in a charging

document for which there was no “independent, testimonial, or documentary” basis in the record.

“Because [the defendant] did not raise these procedural objections to the district court at the time

of sentencing, we review his claims for plain error.” United States v. Verkhoglyad, 516 F.3d

122, 128 (2d Cir. 2008). Under a plain error standard, the Court may correct an error only when,

among other requirements, an error is “clear or obvious, rather than subject to reasonable

dispute.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotations omitted).

       Here, the judge inferred that McCants had traveled to Vermont for “what appear[ed] to be

illicit purposes,” and increased McCants’s punishment because of that “aggravating factor[].” J.

App’x at 43. Nothing prevented the court from doing so. A judge crafting a sentence may

consider “any information concerning the background, character and conduct of the defendant,

unless otherwise prohibited by law.” U.S.S.G. § 1B1.4. To be sure, “[f]actual matters

considered as a basis for sentence must have some minimal indicium of reliability beyond mere

allegation.” United States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007) (internal quotation marks

omitted). But the facts in question were more than a “mere allegation”: a probation officer

submitted a sworn petition that McCants was stopped out-of-state with a large amount of money

that he reported receiving from a known drug dealer. McCants did not contest those facts,

request an evidentiary hearing, or object to the judge’s stated intention to rely upon them.




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Without some basis to believe that the probation officer’s sworn statement was unreliable, we

cannot say that the District Court’s decision to take it into account was clear error.1

       3. Myaisha Whitmore

       Myaisha Whitmore pled guilty and was sentenced to 120 months in prison. On appeal,

Whitmore argues that the District Court failed to ascertain the factual basis of her plea, and that

the Court improperly allowed for a doubling of her mandatory minimum sentence pursuant to the

filing of a prior felony information.

       Before her conviction in this case, Whitmore had been convicted of attempted criminal

possession of a controlled substance in the fifth degree, a class D felony under New York state

law. N.Y. Penal Law § 220.06(5). At her sentencing hearing, Whitmore admitted that she had

indeed been convicted of this crime, while asserting that “it was a big misunderstanding at that

time.” J. App’x at 36. The District Court relied upon that prior felony as a basis for finding

applicable the enhanced penalties provided for recidivist narcotics offenders. The District Court,

however, failed to warn Whitmore that “any challenge to a prior conviction which is not made

before [a] sentence is imposed may not thereafter be raised to attack the sentence,” a notice that

is required by 21 U.S.C. § 851(b).

       In United States v. Espinal, 634 F.3d 655 (2d Cir. 2011), we held that a “[f]ailure to

adhere to the letter of § 851’s procedures does not automatically invalidate the resulting

sentence.” Id. at 665. However, we left open the question of whether such “failure to adhere to

§ 851’s procedures” is subject to plain error or harmless error review. Id. at 665 n.7. We need


       1
         There is some indication in the record that McCants’s term of incarceration may have
already run. We assume that he is appealing the length of both his incarceration and his
supervised release. Accordingly, his release from prison would not moot this appeal.

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not decide the issue in this case, because Whitmore’s claim fails even under the more lenient

harmless error standard. Whitmore was precluded from “challeng[ing] the validity of [her] prior

conviction” because the conviction occurred more than five years before the date of the

information filed in this case. 21 U.S.C. § 851(e). Thus, even if the District Court had informed

Whitmore that she would not be able to challenge the validity of her conviction after she pled,

that notice would have been of no aid to Whitmore because she was barred from doing so. The

District Court’s omission was thus harmless error. See United States v. Harding, 308 F. App’x

531, 532 (2d Cir. 2009).

       We have considered the appellants’ remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgments of the district court is AFFIRMED.



                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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