     09-3542-cr
     United States v. Jones


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
     “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 30th day of November, two thousand ten.
 4
 5   PRESENT:           AMALYA L. KEARSE,
 6                      JOSEPH M. MCLAUGHLIN,
 7                      DEBRA ANN LIVINGSTON,
 8                                     Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12             Appellee,
13
14            -v.-                                       Nos.    09-3542-cr (Lead)
15                                                               09-5159-cr (Con)
16
17   LUKE JONES, also known as Mega, LANCE JONES, LONNIE JONES, also known as LT,
18   AARON HARRIS, also known as Dog, also known as Toast, also known as DMX, also known
19   as Hit Man Sosa, LEONARD TROY JONES, also known as X, WILLIE NUNLEY, also known
20   as Man, EUGENE RHODES, also known as Gene, also known as Sprout, DAVID NUNLEY,
21   also known as Boobie, CRAIG BALDWIN, also known as One Eye Craig, JOHN FOSTER, also
22   known as Anthony Johnson, also know as D.C., also known as Troy Kelly, also known as John
23   Billups, also known as David Nunley, RASHEEN LEWIS, also known as Rasheed Lewis, also
24   known as Noriega, also known as Francis G. Sheen, WILLIAM GAITLIN, KEVIN JACKSON,
25   also known as Kong, DAVID A. WILLIAMS, LESLIE MORRIS, also known as BooBoo,
26   QUINNE POWELL, also known as Q, also known as One Letter, DAMON WALKER, also
27   known as Bucky, RAYON BARNES, SEALED399cr264[21], ANTHONY MARSHALL, also
28   known as Ant,
29                  Defendants,
 1   LYLE JONES, also known as Speedy, KENNETH RICHARDSON, also known as Primo, also
 2   known as Tyree, also known as Rico,
 3                Defendants-Appellants.
 4
 5
 6                                  KIM P. BONSTROM, Bonstrom & Murphy, Shelter Island, NY, for
 7                                  Defendant-Appellant Lyle Jones
 8
 9                                  MALVINA NATHANSON, Esq., New York, NY, and Kenneth
10                                  Richardson, pro se, for Defendant-Appellant Kenneth Richardson
11
12                                  CHRISTOPHER M. MATTEI, Assistant United States Attorney
13                                  (Sandra S. Glover, Assistant United States Attorney, on the brief), for
14                                  David B. Fein, United States Attorney, District of Connecticut, for
15                                  Appellee.
16
17
18          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

19   DECREED that (1) the government’s motion for summary affirmance with respect to Defendant-

20   Appellant Kenneth Richardson’s challenge to his sentence and his counsel’s Anders motion are

21   GRANTED; and (2) the District Court’s decision declining to resentence Defendant-Appellant Lyle

22   Jones is AFFIRMED.

23          Defendant-Appellant Kenneth Richardson (“Richardson”), who was convicted by jury verdict

24   of a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (conspiracy to distribute, and to possess

25   with intent to distribute, narcotics), appeals from a November 30, 2009, opinion of the United States

26   District Court for the District of Connecticut (Nevas, J.), denying his motion pursuant to 18 U.S.C.

27   § 3582(c)(2) to amend his sentence of life imprisonment. Defendant-Appellant Lyle Jones (“Jones”),

28   a co-conspirator who was convicted following a jury trial of violations of 18 U.S.C. § 1962(c)

29   (RICO), 18 U.S.C. § 1962(d) (RICO conspiracy), and 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846

30   (conspiracy to distribute, and to possess with intent to distribute, narcotics), appeals from an August

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 1   11, 2009, order of the United States District Court for the District of Connecticut (Dorsey, J.),

 2   declining to resentence him after remand to the district court pursuant to United States v. Crosby,

 3   397 F.3d 103 (2d Cir. 2005). See United States v. Jones, 296 F. App’x 179, 184 (2d Cir. 2008)

 4   (summary order). We assume the parties’ familiarity with the underlying facts and procedural

 5   history of the case.

 6   I. Kenneth Richardson

 7           Beginning with the Anders motion made by Richardson’s counsel and the government’s

 8   corresponding motion for summary affirmance, we note first that in order to be relieved pursuant to

 9   Anders, counsel must conscientiously examine the case, identifying any issue that could arguably

10   be raised on appeal. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438-39 (1988).

11   This Court will not grant an Anders motion unless it is satisfied that: “(1) . . . counsel has diligently

12   searched the record for any arguably meritorious issue in support of his client’s appeal; and (2)

13   . . . defense counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.”

14   United States v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993). Further, this Court should not

15   independently perform counsel’s job for him, absent a complete Anders brief. See id. (noting that

16   “[u]nder Penson [v. Ohio, 488 U.S. 75 (1988)], [this Court] may not independently determine the

17   merits of an appeal, absent a properly prepared Anders brief”).

18           As explained by the district court, the United States Sentencing Commission in 2007 reduced

19   by two levels the base offense level associated with each quantity of crack cocaine, and such change

20   has been given retroactive effect. See U.S.S.G. § 2D1.1 (2007) (Amendment 706); U.S.S.G.

21   § 1B1.10(c); United States v. Regalado, 518 F.3d 143, 150 (2d Cir. 2008). Pursuant to § 3582(c)(2),


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 1   a court may reduce the term of imprisonment of “a defendant who has been sentenced to a term of

 2   imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing

 3   Commission.” 18 U.S.C. § 3582(c)(2). Section 1B1.10 of the Sentencing Guidelines then provides

 4   that, where the Guidelines range applicable to a defendant has subsequently been lowered as a result

 5   of an amendment listed in subsection (c), a reduction is authorized under § 3582(c)(2). U.S.S.G.

 6   § 1B1.10. However, a sentence reduction is not authorized under § 3582(c) if “the amendment does

 7   not have the effect of lowering the defendant’s applicable [G]uideline[s] range because of the

 8   operation of another guideline or statutory provision.” Id. § 1B1.10 Application Note 1(A). A

 9   defendant whose otherwise applicable Guidelines range is subsumed and displaced by a statutory

10   mandatory minimum sentence is ineligible for a sentence reduction based upon a subsequent

11   Guidelines amendment. See United States v. Williams, 551 F.3d 182, 185-86 (2d Cir. 2009). This

12   Court reviews de novo a district court’s determination whether a defendant is eligible for relief under

13   § 3582. See id. at 185.

14          First, the district court properly found that Richardson was not eligible for a sentence

15   reduction because his otherwise applicable Guidelines range was subsumed and displaced by the

16   statutory mandatory life imprisonment sentence applicable to him under § 841(b)(1)(A), see id. at

17   185-86, based on his two previous felony drug offenses. Because the mandatory minimum applied,

18   Richardson’s sentence was “no longer ‘based on a sentencing range that has subsequently been

19   lowered by the Sentencing Commission.’” Id. at 185 (quoting 18 U.S.C. § 3582(c)(2)).

20          Second, Richardson appears to argue in a pro se submission that his prior convictions under

21   Connecticut law did not constitute qualifying felonies for the purpose of enhancing his federal


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 1   sentence because the applicable Connecticut drug law criminalizing offenses as felonies is broader

 2   than federal law. Because Richardson’s argument seeks to challenge the basis for his original

 3   sentence, however, it is not properly brought in a § 3582 proceeding and is foreclosed by the

 4   Supreme Court’s decision in Dillon v. United States, 130 S. Ct. 2683, 2691 (2010) (stating that §

 5   3582 “authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary

 6   resentencing proceeding”). For the same reason, because Richardson’s remaining arguments also

 7   seek to revisit, modify, and correct his original sentence, they are barred by Dillon. See id. As a

 8   result, there are no non-frivolous issues that could be raised on his behalf.           Accordingly,

 9   Richardson’s counsel’s Anders motion is granted, and the decision denying his motion to amend his

10   sentence is affirmed.

11   II. Lyle Jones

12          With respect to Jones, he asserts on appeal that the decision not to resentence him was

13   procedurally unreasonable because, he alleges, the district court failed adequately to explain its

14   conclusion that his sentence in an advisory Guidelines regime would not have differed from the life

15   sentence he received under the then-mandatory Sentencing Guidelines. He argues principally that

16   the district court’s failure explicitly to resolve objections made to the Presentence Report in his

17   original sentencing hearing and its failure expressly to consider the sentencing factors set out in 18

18   U.S.C. § 3553(a) rendered its decision unreasonable. We find that the district court’s decision was

19   procedurally reasonable and affirm.

20          Under the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 261-62

21   (2005), we review sentences imposed by the district court for reasonableness, United States v.


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 1   Williams, 475 F.3d 468, 474 (2d Cir. 2007), which is akin to review for abuse of discretion, United

 2   States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc). Following the decision in Booker

 3   rendering the Sentencing Guidelines “effectively advisory,” Booker, 543 U.S. at 245, we decided that

 4   we would, as we did here, remand many pending sentencing appeals to the district court “not for the

 5   purpose of a required resentencing, but only for the more limited purpose of permitting the

 6   sentencing judge to determine whether to resentence, now fully informed of the new sentencing

 7   regime, and if so, to resentence,” Crosby, 397 F.3d at 117.             This Circuit “undertake[s] a

 8   reasonableness review ‘even after a District Court declines to resentence pursuant to Crosby.’”

 9   United States v. Johnson, 567 F.3d 40, 52 (2d Cir. 2009) (quoting Williams, 475 F.3d at 474). In this

10   situation, this Court “retain[s] authority to review for reasonableness both the procedure whereby

11   the District Court decided not to resentence and the substance of the undisturbed sentence.”

12   Williams, 475 F.3d at 471. However, under the law of the case doctrine, a defendant on appeal will

13   ordinarily be “bar[red] . . . from renewing challenges to rulings made by the sentencing court that

14   were adjudicated by this Court — or that could have been adjudicated by us had the defendant made

15   them — during the initial appeal that led to the Crosby remand.” Id. at 475.

16          Jones first claims that the district court erred on remand in failing to resolve objections raised

17   at his original sentencing hearing to certain aspects of his Presentence Report. Specifically, he

18   objected to (1) the two-level increase in his offense level for Obstruction of Justice pursuant to

19   U.S.S.G. § 3C1.1; (2) the two-level increase in his offense level for the “Use of a Minor” pursuant

20   to U.S.S.G. § 1B1.3(a)(1)(A) & (B) and § 3B1.4; (3) the three criminal history points added pursuant

21   to U.S.S.G. § 4A1.1(d) and 4A1.1(e) because he committed the charged offense while on parole and


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 1   within two years of release from a previous term of incarceration; and (4) the three criminal history

 2   points added for a 1995 state narcotics conviction that he argued should have been considered part

 3   of the conduct of conviction.1 While these objections were raised at the original sentencing hearing,

 4   the district court’s failure to resolve them was not challenged on appeal. As a result, Jones is

 5   precluded by the law of the case doctrine from raising them now. See Williams, 475 F.3d at 475;

 6   United States v. Ben Zvi, 242 F.3d 89, 96 (2d Cir. 2001) (“[A] decision made at a previous stage of

 7   litigation, which could have been challenged in the ensuing appeal but was not, becomes the law of

 8   the case; the parties are deemed to have waived the right to challenge that decision, for it would be

 9   absurd that a party who has chosen not to argue a point on a first appeal should stand better as

10   regards the law of the case than one who had argued and lost.”).

11          Jones also argues that his sentence was procedurally unreasonable based on the fact that the

12   district court did not provide an individualized assessment of the sentencing factors set out in 18

13   U.S.C. § 3553(a) in the decision to deny resentencing. However, as Jones concedes, this Court

14   “presume[s], in the absence of record evidence suggesting otherwise, that a sentencing judge has


            1
              Jones also added on remand “three [additional] distinct grounds” in support of his
     argument regarding the effect this incarceration should have on his Guidelines calculation.
     Because he did not make these arguments challenging the drug quantity applicable to him on the
     basis of his prior incarceration or request an adjustment or downward departure on this basis at
     the original sentencing, we “deem his challenge waived and decline to consider it on appeal.”
     United States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008). Indeed, Jones’s attempt to
     challenge the quantity of narcotics attributed to him for sentencing purposes had already been
     held waived by this Court on Jones’s first appeal. See Jones, 296 F. App’x at 183. To the extent
     he asks for a downward departure based on a Guidelines provision enacted subsequent to his
     original sentencing, we note that Crosby requires the district court simply to decide whether it
     “would have imposed a materially different sentence, under the circumstances existing at the
     time of the original sentence,” Crosby, 397 F.3d at 117, and does not entitle the Defendant to a
     departure under subsequently enacted Guidelines provisions.

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 1   faithfully discharged [his] duty to consider the statutory factors.” Williams, 475 F.3d at 477 (second

 2   alteration in original) (quoting United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006)). “[A]

 3   sentencing judge’s decision not to discuss explicitly the sentencing factors or not to review them in

 4   the exact language of the statute does not, without more, overcome the presumption that [the judge]

 5   took them all properly into account.” United States v. Pereira, 465 F.3d 515, 523 (2d Cir. 2006).

 6          The district judge, having presided over the original sentencing in this case, was well aware

 7   of the “nature and circumstances of the offense and the history and characteristics of the defendant.”

 8   18 U.S.C. § 3553(a)(1). He indicated that he was aware that the Guidelines were now advisory and

 9   that he had fully reviewed the record and the parties’ submissions in deciding that there was no

10   reason presented to impose a different sentence in this case. As the district judge said in explaining

11   his decision not to resentence, “the factors in the record as rated at the original sentencing remain

12   to be considered now and after consideration there is no basis found [for] imposing any different

13   sentence.” Order re: Reduction of Sentence re: Crack Cocaine Offense, United States v. Jones, No.

14   3:99 cr 264 (PCD) (D. Conn. Aug. 11, 2009).

15          Moreover, we find no indication that the district court inadequately considered any of Jones’s

16   arguments for resentencing. While Jones argues that a single comment in the government’s

17   submission to the district court may have misled the court into believing it could not take into

18   account his age upon release in assessing his risk of recidivism, there is no evidence in the record

19   that the district court was misled. Jones’s argument that a lower sentence was necessary to avoid

20   sentencing disparities among his co-defendants both need not be considered by the district court, see

21   United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008), and was undermined in any case here by


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 1   the affirmation of life sentences for others of his co-conspirators, see, e.g., United States v. Jones,

 2   294 F. App’x 624 (2d Cir. 2008) (summary order).

 3          Jones attempts to recast as an argument grounded in § 3553(a)’s sentencing factors the claim

 4   that the time he spent incarcerated while the conspiracy was ongoing warranted a reduction in the

 5   drug quantity attributed to him, a mitigating role adjustment or a downward departure. Even so

 6   construed, however, the record is clear that the district court was fully aware of both Jones’s role in

 7   the conspiracy and his arguments regarding the proper effect of his prior incarceration on his

 8   sentence when it denied resentencing. See Crosby, 397 F.3d at 113 (finding no “rigorous

 9   requirement of specific articulation by the sentencing judge” of its consideration of the § 3553(a)

10   sentencing factors).

11          Jones argues that the district court erred procedurally by failing to consider his post-

12   sentencing rehabilitation. A district court on a Crosby remand, however, is obligated to consider

13   whether to resentence based on “the circumstances existing at the time of the original sentence.”

14   Crosby, 397 F.3d at 117 (emphasis added); United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir.

15   2007) (holding that a district court is not to consider evidence of post-conviction rehabilitation in

16   deciding whether to resentence under Crosby). Jones’s argument that the district court should have

17   specifically addressed the disparate penalties applicable to powder cocaine and cocaine base offenses

18   is likewise unavailing. The quantity of heroin involved in the conspiracy independently gave Jones

19   a base offense level of 38 and, with unchallenged adjustments upward, an advisory Guidelines

20   sentence of life imprisonment. See U.S.S.G. § 2D1.1(c)(1). Particularly in such circumstances, there

21   is no reason to conclude that the district court did not consider and reject Jones’s request for a


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 1   reduction based on any powder/cocaine base disparity.

 2          Especially given the district court’s familiarity with this case and the original sentencing

 3   proceedings, we are unable to discern, and Jones fails to identify, any indication in this record that

 4   the sentencing judge failed to “faithfully discharge[] [his] duty to consider the statutory factors,”

 5   Williams, 475 F.3d at 477 (second alteration in original) (quoting Fernandez, 443 F.3d at 30), in

 6   deciding not to resentence him. We hold that the decision was procedurally reasonable, and affirm.

 7   We have considered Jones’s remaining arguments and find them to be without merit.

 8   III. Conclusion

 9          For the foregoing reasons, the government’s motion for summary affirmance with respect to

10   Richardson and the Anders motion of his counsel are GRANTED, and the judgment of the district

11   court declining to resentence Jones is hereby AFFIRMED.

12
13                                                         FOR THE COURT:
14                                                         Catherine O’Hagan Wolfe, Clerk
15
16




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