15-3486-cr
United States v. Sica


                          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 24th day of January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                                   Appellee,

                        v.                                                   No. 15-3486-cr

DENNIS SICA,
                                     Defendant-Appellant,

ARTHUR DESIERVI,
                                      Defendant.
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APPEARING FOR APPELLEE:                           SCOTT A. HARTMAN, Assistant United States
                                                 Attorney (Karl Metzner, Assistant United States
                                                 Attorney, on the brief), for Preet Bharara, United
                                                 States Attorney for the Southern District of New
                                                 York, New York, New York.

APPEARING FOR APPELLANT:                         THEODORE S. GREEN, Green & Willstatter,
                                                 White Plains, New York.



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

District of New York (Cathy Seibel, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on October 26, 2015 is AFFIRMED.

       Defendant Dennis Sica was convicted after a guilty plea of conspiracy to traffic in

heroin and fentanyl, causing the deaths of three people, see 21 U.S.C. §§ 841(b)(1)(B),

846, and sentenced principally to 420 months’ imprisonment.              On appeal, Sica

challenges the factual basis for his guilty plea and the procedural and substantive

reasonableness of his sentence. We assume the parties’ familiarity with the facts and

record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.

1.     Factual Basis for the Guilty Plea

       Sica argues that his guilty plea was insufficient to establish that (a) his narcotics

sales caused the victims’ deaths and (b) such deaths were foreseeable. See Fed. R.

Crim. P. 11(b)(3).   We normally review a defendant’s challenge to his plea’s factual

basis for abuse of discretion, subject to harmless error, see United States v. Culbertson,

670 F.3d 183, 189, 192 (2d Cir. 2012), but we review only for plain error where, as here,

the defendant failed to challenge the validity of his plea in the district court, see United

States v. Rodriguez, 725 F.3d 271, 276 (2d Cir. 2013) (citing United States v. Vonn, 535

U.S. 55, 59 (2002)). Sica thus bears the burden of showing (1) an error (2) that is clear

and obvious, (3) affecting “substantial rights,” and (4) seriously impugning the “fairness,

integrity, or public reputation of judicial proceedings.” United States v. Wagner-Dano,

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679 F.3d 83, 94 (2d Cir. 2012) (internal quotation marks omitted). In the Rule 11

context, substantial rights are affected only if there is a “reasonable probability that, but

for the error, [the defendant] would not have entered the plea.”           United States v.

Rodriguez, 725 F.3d at 276. We identify no error here, plain or otherwise.

       a.     Causation

       As to causation, Sica asserts that his guilty plea established only that his drug

trafficking was a but-for cause of the victims’ deaths, not the sole cause. The argument

is defeated by Burrage v. United States, 134 S. Ct. 881 (2014), wherein the Supreme

Court clearly and repeatedly stated that the causation element for § 841(b) offenses

resulting in death requires only that the defendant’s conduct be “a but-for cause of the

death,” id. at 892 (emphasis added); see id. at 885, 888, 889, 891.1 In urging otherwise,

Sica relies on a decision by a district court outside this circuit that, in a Title VII case,

construed § 841(b)(1)(C) to require a showing of sole causation.            See Hendon v.

Kamtek, Inc., 117 F. Supp. 3d 1325, 1331–32 (N.D. Ala. 2015). We are not persuaded.

       In explaining the causation requirement, Burrage distinguished between instances

in which the defendant’s narcotics trafficking “merely played a nonessential contributing

role” in the death, which does not suffice to establish causation, and instances in which

the “incremental effect” of the drugs was the “straw that broke the camel’s back,” which

does suffice. Burrage v. United States, 134 S. Ct. at 888. The record fixes this case

1
  Burrage specifically addressed the causation requirement of the penalty enhancement
in 21 U.S.C. § 841(b)(1)(C), but neither Sica nor the government argues that the
causation requirement of § 841(b)(1)(B) differs from that applicable to § 841(b)(1)(C).
See generally Law v. Siegel, 134 S. Ct. 1188, 1195 (2014) (describing interpretive
principle that same words in statute presumptively have same meaning).

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firmly within the latter category, as toxicology reports and witness accounts provided a

sufficient basis to conclude that the narcotics sold by Sica were essential to the victims’

deaths, and therefore a but-for cause. Indeed, Sica’s counsel appears to have conceded

as much at the plea allocution:

       We believe that the government will adduce on its direct case legally
       sufficient evidence that a jury could conclude that the deaths of those
       persons was a but/for—the death would not have occurred but/for the use
       of the drugs that were distributed as part of the conspiracy.

App’x 168 (emphasis added).            Burrage supports the penalty enhancement for

§ 841(b)(1) crimes in such circumstances.

       We therefore identify no abuse of discretion—much less plain error—in the

district court’s conclusion that Sica’s guilty plea provided a sufficient factual basis for the

element of causation.

       b.     Foreseeability

       Sica further argues—but also did not challenge at his plea allocution—the absence

of a factual basis to conclude that the victims’ deaths were foreseeable to him. This

argument fails because he cites no controlling authority for a foreseeability requirement,

and an error is not “plain” when the urged rule is not “clearly established by the time of

the appeal.” United States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009). Indeed, Sica’s

foreseeability argument has been rejected by every court of appeals to have considered

the question. See United States v. Burkholder, 816 F.3d 607, 616 (10th Cir. 2016);

United States v. Webb, 655 F.3d 1238, 1257 (11th Cir. 2011); United States v. De La

Cruz, 514 F.3d 121, 137 (1st Cir. 2008); United States v. Hatfield, 591 F.3d 945, 948,


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949 (7th Cir. 2010); United States v. Houston, 406 F.3d 1121, 1124–25 (9th Cir. 2005);

United States v. Carbajal, 290 F.3d 277, 284 (5th Cir. 2002); United States v. McIntosh,

236 F.3d 968, 972 (8th Cir. 2001); United States v. Robinson, 167 F.3d 824, 832 (3d Cir.

1999); United States v. Patterson, 38 F.3d 139, 145 (4th Cir. 1994).

       We need not ourselves decide the need to establish foreseeability because, even if

we were to answer that question in favor of Sica, we would identify no error here, where

foreseeability was supported by facts in the record, specifically (1) Sica’s experience with

potent narcotics, particularly after his prior narcotics convictions; and (2) his continued

sale of those narcotics even after learning that they had caused a young woman’s illness

and, shortly thereafter, a young man’s death.

2.     Procedural Reasonableness

       Sica also argues that procedural error in the calculation of his Sentencing

Guidelines range rendered his sentence procedurally unreasonable. See United States v.

Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc); accord United States v. Broxmeyer,

699 F.3d 265, 278 (2d Cir. 2012). The deferential abuse-of-discretion standard we

apply to such a challenge, see United States v. Young, 811 F.3d 592, 598 (2d Cir. 2016),

“incorporates de novo review of questions of law (including interpretation of the

Guidelines) and clear-error review of questions of fact,” United States v. Legros, 529

F.3d 470, 474 (2d Cir. 2008).

       a.     Prior “Similar Offense” under § 2D1.1(a)(1)

       Sica first argues that U.S.S.G. § 2D1.1(a)(1)’s use of the phrase “conviction[] for a

similar offense” references not simply prior narcotics convictions—which Sica

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unquestionably had—but prior narcotics convictions that similarly resulted in

death—which he did not. In support, he cites a 1989 Guidelines amendment deleting an

application note that defined “similar drug offense” to mean any “prior conviction as

described in 21 U.S.C. § 841(b) or 962(b).” See U.S.S.G. App. C, amend. 123, at 59

(Nov. 1, 1989). Sica argues that removal of the note suggests that the phrase is intended

to apply more narrowly than to such narcotics convictions. Sica, however, provides no

affirmative support for such a conclusion, which he acknowledges has been rejected by

the two courts of appeals to have considered the question. See United States v. Johnson,

706 F.3d 728, 730–32 (6th Cir. 2013); see also United States v. Westry, 524 F.3d 1198,

1220 n.12 (11th Cir. 2008).

      In fact, Sica’s argument is defeated by the very amendment referenced. The

deleted note appeared at odds with the relevant statutory text, which imposed an

enhanced sentence not only when a defendant had a prior § 841(b) or § 962(b)

conviction, but also when he had any prior felony narcotics conviction under federal,

state, or foreign law, see 21 U.S.C. § 841(b)(1)(B) (1988). Accordingly, the Sentencing

Commission explained that its purpose in removing the note was to clarify that

§ 2D1.1(a)(1) applied “only in the case of a conviction under the circumstances specified

in the statutes cited [by the Guideline],” U.S.S.G. App. C, amend. 123, at 59, which were

then, as now, sections 841(b)(1)(A)–(C), see U.S.S.G. § 2D1.1(a)(1) (1989); U.S.S.G.

§ 2D1.1(a)(1) (2015).    Each statutory provision, in turn, provides for an enhanced

sentence when the defendant has a prior felony narcotics conviction under any state,

federal, or foreign law, see § 841(b) (1988), with the current provision differing only in

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exporting that list of qualifying convictions to an external provision, 21 U.S.C. § 802,

which is included by reference using the term “felony drug offense.”

       Sica’s suggestion that the phrase “prior . . . similar offense” in § 2D1.1(a)(1) must

refer solely to convictions for prior narcotics offenses resulting in death thus finds no

support in either the Guidelines amendment or the sentencing scheme provided by

§ 841(b), which has consistently defined the qualifying prior offense as any felony

narcotics conviction arising under state, federal, or foreign law. See, e.g., 21 U.S.C.

§§ 841(b) (1988), 841(b) (2016); § 802 (2016). There is no serious question that the

prior-conviction language in Guideline § 2D1.1(a) works in tandem with that in § 841(b).

See § 2D1.1 cmt. n.27 (2015) (stating that base offense levels in guideline are “either

provided directly by [statute] or are proportional to [] levels established” therein); see also

United States v. Johnson, 706 F.3d at 731 (stating that § 2D1.1 guideline and § 841(b)

statute designed to “mirror one another in several respects”); United States v. Greenough,

669 F.3d 567, 575 (5th Cir. 2012) (interpreting § 2D1.1 in light of § 841(b)).

       Accordingly, this argument that § 2D1.1(a)(1) does not apply in Sica’s case fails on

the merits.

       b.     Establishment of Prior Similar Offense

       Sica further argues that § 2D1.1(a)(1) requires that his “prior convictions for a

similar offense” be “establish[ed by]” the “offense of conviction,” which is not the case

here, as he did not plead to the substantive § 841(b)(1)(B) prior-felony death-results

crime, which would have mandated a life sentence. The government agrees that Sica

did not plead guilty to this aggravated offense, but it argues that § 2D1.1(a)(1)

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nonetheless applies because evidence of Sica’s prior convictions was adduced at

sentencing. The decisions of our sister circuits do not speak clearly as to whether the

Guidelines phrase “offense of conviction establishes” limits the application of

§ 2D1.1(a)(1) to cases in which a prior felony drug conviction and resulting death are

elements of the crime of conviction. Compare, e.g., United States v. Lawler, 818 F.3d

281, 283–84 & 284 n.3 (7th Cir. 2016) (stating that § 2D1.1(a)(2) looks only to what is

“establishe[d]” by “offense of conviction,” and that § 2D1.1(a)(1) contains the same

language); United States v. Greenough, 669 F.3d at 573–76 [5th Cir.] (holding

§ 2D1.1(a)(2) inapplicable if resulting-death conduct not charged, but affirming on plain

error grounds); United States v. Rebmann, 321 F.3d at 543–44 (6th Cir. 2003) (stating

that § 2D1.1(a)(2) requires charging death-results element); United States v. Pressler, 256

F.3d 144, 158 n.7 (3d Cir. 2001) (dictum to same effect), with United States v. Johnson,

706 F.3d at 729, 732 [6th Cir.] (holding § 2D1.1(a)(1) applicable even if government

does not charge defendant with prior felony narcotics conviction), and United States v.

Shah, 453 F.3d 520, 524 (D.C. Cir. 2006) (holding not plain error to apply § 2D.1.1(a)(2)

without charging death-results element when plea agreement and government proffer

stated that defendant “was accountable for the death”).

       We need not decide the issue here because Sica did not raise it below and fails to

demonstrate plain error on appeal. No controlling precedent by the Supreme Court or

this court clearly establishes § 2D1.1(a)(1)’s inapplicability to a defendant who is

allowed to plead to a narcotics offense without acknowledging the prior conviction that

would subject him to a life sentence, where, as here, such prior convictions are

                                            8
convincingly established at sentencing. See United States v. Irving, 554 F.3d at 78

(error not “plain” when applicable rule not clearly established by time of appeal). In the

absence of such authority, we cannot identify error so “egregious and obvious” as to

make the government and district court derelict in permitting it. See United States v.

Whab, 355 F.3d 155, 158 (2d Cir. 2004) (internal quotation marks omitted); United States

v. Marcus, 560 U.S. 258, 262 (2010) (stating plain error standard).

3.     Substantive Reasonableness

       Sica challenges the substantive reasonableness of his sentence, arguing that he was

only a street-level drug dealer selling narcotics largely to other addicts.   Further, he

maintains that statutory provisions and implementing Guidelines for narcotics offenses

resulting in death were enacted in a “hasty manner” and based on “media-led opinion[s]

of dubious validity.”     Appellant’s Br. 37.      We will “set 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.” United States v. Cavera,

550 F.3d at 189 (emphasis and internal quotation marks omitted); see also United States

v. Messina, 806 F.3d 55, 66 (2d Cir. 2015) (discussing “broad range of permissible

decisions available to the district court”). That is not this case.

       The district court recognized that Sica “[wa]s not a high-level drug dealer,” App’x

210, and “was an addict himself,” id. at 215. At the same time, it noted (1) Sica’s

continued eagerness to sell potent narcotics knowing they could—and had—caused

death, (2) his initial lack of remorse, and (3) the tragic consequences his conduct had

wreaked on the victims and their families. Such evidence aggravated relevant § 3553(a)

                                              9
factors, notably the defendant’s history and characteristics, the need for his sentence to

reflect the seriousness of the offense, and the need to afford adequate deterrence and to

protect the public. On this record, the district court did not exceed its discretion in

concluding that a 420-month term of imprisonment, which was below the Guidelines

range of life imprisonment calculated pursuant to § 2D1.1(a)(1), was within the range of

“permissible decisions” available. United States v. Cavera, 550 F.3d at 189.

      Indeed, even if the district court had committed procedural error in applying

§ 2D1.1(a)(1) rather than § 2D1.1(a)(2) to Sica’s Guidelines calculation, no different

conclusion as to reasonableness would obtain because the court clearly stated that it

“would have imposed the same sentence were the range 360 to life” under the latter

guideline. App’x 175, 218. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009);

accord United States v. Kent, 821 F.3d 362, 367–68 (2d Cir. 2016). We therefore

identify no merit in Sica’s procedural or substantive reasonableness challenges.

4.    Conclusion

      We have considered Sica’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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