14-4149
United States v. Speed

                                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
2nd day of November, two thousand fifteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            DENNY CHIN,
                  Circuit Judge,
            P. KEVIN CASTEL,
                  District Judge.*
____________________________________________________________

UNITED STATES OF AMERICA,

        Appellee,

                 -v-                                                   No. 14-4149

KASHIKA SPEED, AKA SHIKA,

        Defendant-Appellant,

THAMUD ELDRIDGE, AKA DAMU, KEVIN ALLEN,
AKA KILLER KEV, GALEN ROSE,

        Defendants.




*
 The Honorable P. Kevin Castel, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Appellee:                         JOSEPH J. KARASZEWSKI, Assistant United States Attorney,
                                      for William J. Hochul, Jr., United States Attorney for the
                                      Western District of New York, Buffalo, NY.
For Defendant-Appellant:              RYAN THOMAS TRUSKOSKI, ESQ., Ryan Thomas Truskoski,
                                      P.A., Harwinton, CT.


       Appeal from the United States District Court for the Western District of New York
(Arcara, S.J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

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

       Kashika Speed and three co-defendants were charged with eleven counts of racketeering,

kidnapping, robbery, and other offenses in connection with an alleged criminal enterprise

operating in the East Side of Buffalo, New York. Speed pled guilty to a single count of robbery

under the Hobbs Act, 18 U.S.C. § 1951, as part of a plea agreement with the Government. The

plea agreement contemplated a sentencing range of 151 to 188 months imprisonment, based on

Speed’s criminal history, the base offense level, and several adjustments. Speed agreed to waive

his right to appeal any sentence within this range.

       At sentencing, the District Court rejected the parties’ calculations, and determined that a

higher range was appropriate. In particular, the District Court agreed with the conclusion of the

Probation Office’s pre-sentence report that Speed’s undisputed conduct constituted “otherwise

using” a firearm—meriting a six-level increase under U.S.S.G. § 2B3.1(b)(2)(B)—rather than

merely “brandishing” it, which merits a five-level increase. Based on that adjustment, the

District Court calculated a sentencing range of 168 to 210 months, and sentenced Speed to 192

months imprisonment. Because that sentence exceeded the range stipulated to in the plea

agreement, albeit by only four months, Speed was permitted to and did appeal.




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       Speed raises two claims on appeal. First, he alleges that that the District Court

misunderstood its discretion to determine the appropriate sentencing range. Second, he contends

that the District Court should have conducted an evidentiary hearing rather than rely on unproven

allegations in the pre-sentence report and grand jury transcripts. Neither claim is persuasive.

       First, Speed argues that the District Court did not recognize that it had the discretion to

accept the guidelines range negotiated by the parties in the plea agreement. He acknowledges

that the District Court had the discretion to reject the parties’ stipulated range during sentencing.

See, e.g., United States v. Woltmann, 610 F.3d 37, 40 (2d Cir. 2010) (“It is a ‘well-settled legal

principle that the sentencing judge is of course not bound by the estimated range in a plea

agreement.’” (quoting United States v. Hamdi, 432 F.3d 115, 124 (2d Cir. 2005)). Nonetheless,

Speed contends that the District Court erred in believing that it was bound to accept the range

calculated by the Probation Office in its pre-sentence report.

       Speed’s argument is contradicted by the record. The District Court clearly acknowledged

its independent responsibility to calculate the appropriate sentencing range. See App. 133

(“[T]his Court has a duty and I don’t know if anyone realizes that, that I have an obligation to

calculate the correct application guidelines prior to imposing sentence.”); App. 134 (“I have an

obligation separate and distinct from your obligation as an attorney and the government’s

obligation . . . to make a proper calculation as to what the offense level is.”). There is no

indication in the record that the District Court believed itself to be bound by the recommendation

in the pre-sentence report any more than it believed itself to be bound by the calculations in the

plea agreement.

       Second, Speed contends that the District Court erred by relying on unproven allegations

in the pre-sentence report and grand jury transcripts, rather than conducting an evidentiary




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hearing. “If an inaccuracy is alleged [in a pre-sentence report], the court must make a finding as

to the controverted matter or refrain from taking that matter into account in sentencing.” United

States v. Helmsley, 941 F.2d 71, 98 (2d Cir. 1991).

       However, Speed never objected to the factual accuracy of the pre-sentence report or to

the District Court’s description of his conduct. Instead, Speed’s only objection was that the

District Court should have accepted the substance of the plea agreement. Speed’s written

objection to the pre-sentence report stated that “Mr. Speed objects on the basis that the parties’

stipulated guideline range does not include the ‘used’ enhancement.” App. 118. In making that

objection, Speed complained that he and the Government had agreed that his offense conduct

warranted a “brandished” enhancement, but that “[b]ased on the very same evidence, Probation

renders a different interpretation.” Id. By acknowledging that the Probation Office based its

recommendation on the “same evidence” as the plea agreement, Speed appears to have

disclaimed any argument that the report was factually inaccurate.

       The District Court relied on the same factual predicate as the parties and the Probation

Office—the grand jury testimony—to find that “Speed . . . threatened to kill the victim unless he

gave them money and drugs” and that Speed “press[ed] a firearm” into the victim’s neck. App.

134. Speed did not challenge this finding at the sentencing hearing, did not request an

evidentiary hearing, and did not otherwise ask to introduce additional evidence showing that he

did not press a gun into the victim’s neck. In the absence of a specific request for an evidentiary

hearing, we review only for plain error. We find no such error here, given that the “district court

is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a

full-blown evidentiary hearing in resolving sentencing disputes. All that is required is that the

court ‘afford the defendant some opportunity to rebut the Government’s allegations.’” United




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States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) (quoting United States v. Eisen, 974 F.2d

246, 269 (2d Cir. 1992)).

        Finally, we note that the District Court did not plainly err in determining that Speed’s

conduct amounted to “otherwise using” rather than “brandishing” his weapon. Although Speed’s

appeal did not directly challenge that determination, we nostra sponte requested that the parties

submit supplemental briefing to clarify the applicability of United States v. Matthews, 20 F.3d

538 (2d Cir. 1994). This Court held in Matthews that otherwise using a firearm must mean

something more than merely threatening a victim with a firearm:

        When a robber points a gun, or what appears to be a gun, at a robbery victim or
        bystander, that gesture is inherently threatening. And we should not have to point
        out, for it is tautological, that there can be no “display[ ] [of the gun] in a
        threatening manner,” Note 1(c), without an implicit threat. Coupling that implicit
        threat with the utterance of an explicit verbal threat may constitute additional
        conduct, but it does not, in our view, constitute additional use of the weapon.
        Since the robbers here were not shown to have done anything more with their
        weapons than to brandish and point them menacingly, we conclude that the three-
        level enhancement provided for brandishing in § 2B3.1(b)(2)(E), rather than the
        four-level enhancement provided in § 2B3.1(b)(2)(D) for other use, should have
        been applied to [the defendants].

Id. at 554.

        Speed argues in his supplemental briefing that because his conduct was “directly

analogous” to Matthews’, the District Court erred in holding that Speed “used” rather than

“brandished” his firearm. Appellant’s Suppl. Br. 4. But even assuming Speed’s conduct was

similar to Matthews’—a generous assumption given the difference between Matthews pointing a

firearm at his victims for a few minutes and Speed pressing a firearm into his victim’s neck for

several hours—the precedential value of Matthews has likely “diminished” because of changes in

the sentencing guidelines over time. See United States v. Paine, 407 F.3d 958, 964 (8th Cir.

2005). The application note to the sentencing guideline defining “brandishing” was amended in




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2000, after Matthews was decided but before Speed robbed his victim at gunpoint. Before 2000,

the application note stated that “‘[b]randished’ with reference to a dangerous weapon (including

a firearm) means that the weapon was pointed or waved about, or displayed in a threatening

manner.” Id. at 963 n.2 (emphasis added). The amendment struck the word “pointed,” replacing

the definition of “brandishing” with the following: “all or part of the weapon was displayed, or

the presence of the weapon was otherwise made known to another person, in order to intimidate

that person, regardless of whether the weapon was directly visible to that person. . . .” Id. at 963.

The definition of “otherwise used” was not altered: “‘Otherwise used’ with reference to a

dangerous weapon (including a firearm) means that the conduct did not amount to the discharge

of a firearm but was more than brandishing, displaying, or possessing a firearm or other

dangerous weapon.” Id. As the Court discussed in Paine, “[i]t is apparent the amendment was

intended to include at least some instances involving pointing a weapon within the definition of

‘otherwise used.’” Id. at 964. Based on that clarification to the guidelines, we do not find plain

error in the District Court’s determination that Speed “otherwise used” a firearm when he

pressed it into his victim’s neck and threatened to kill him, and did not merely brandish it.

       Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

       .


                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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