     05-2828-cr
     USA v. Legros

1                       UNITED STATES COURT OF APPEALS

2                           FOR THE SECOND CIRCUIT

3                              August Term, 2007

4    (Submitted: February 22, 2008                 Decided: June 17, 2008)

5                            Docket No. 05-2828-cr

6                    -------------------------------------

7                          United States of America,

8                                  Appellee,

9                                    - v -

10                               Herby Legros,

11                           Defendant-Appellant.

12                   -------------------------------------

13   Before: JACOBS, Chief Judge, CALABRESI, and SACK, Circuit Judges.

14               Appeal by the defendant from a judgment of conviction

15   of the United States District Court for the Eastern District of

16   New York (Joanna Seybert, Judge) sentencing him principally to a

17   term of imprisonment of 120 months for being a felon in

18   possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

19   The district court's factual findings, as stated on the record,

20   are insufficient to support the sentencing enhancement imposed

21   under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in

22   connection with another felony offense.

23               Vacated and remanded for resentencing.

24                              Vivian Shevitz, South Salem, NY, for
25                              Appellant.
1                               Roslynn R. Mauskopf, United States
2                               Attorney for the Eastern District of New
3                               York, Peter A. Norling, Jo Ann M.
4                               Navickas, Assistant United States
5                               Attorneys, Brooklyn, NY, for Appellee.

6    SACK, Circuit Judge:

7                Defendant Herby Legros appeals from a judgment of

8    conviction of the United States District Court for the Eastern

9    District of New York (Joanna Seybert, Judge) sentencing him

10   principally to a term of imprisonment of 120 months for being a

11   felon in possession of a firearm in violation of 18 U.S.C.

12   § 922(g)(1).   Legros appeals his sentence only.   We conclude that

13   it is procedurally "unreasonable" because the district court's

14   findings of fact, as stated on the record, do not support a four-

15   level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a

16   firearm in connection with another felony offense.1      We therefore

17   vacate the judgment and remand for resentencing.    At

18   resentencing, the district court may either recalculate the

19   applicable Guidelines range without the enhancement or make

20   additional factual findings that sufficiently support the

21   enhancement.   The judgment below is in all other respects

22   affirmed.




          1
            Although the relevant enhancement was U.S.S.G.
     § 2K2.1(b)(5) at the time Legros was sentenced, subsection (b)(5)
     was subsequently renumbered (b)(6) without substantive change.
     See U.S.S.G. Supp. to App. C, amend. 691 (eff. Nov. 1, 2006).
     Throughout this opinion we cite to the enhancement as U.S.S.G.
     § 2K2.1(b)(6).

                                       2
1                                BACKGROUND

2               On November 1, 2003, police responded to a series of

3    "911" calls reporting multiple shots fired in the street of a

4    residential area of West Babylon, Suffolk County, New York.       Two

5    police officers arrived on the scene almost immediately, spotted

6    three men in the vicinity, and approached them.     One of them

7    (later identified as Legros) ran.     One of the officers pursued

8    him.   During the chase, Legros tossed a handgun to the ground.

9    He was arrested by the officer.   The gun he discarded was later

10   matched to spent shell casings and one expended bullet recovered

11   from the scene of the reported gunshots.

12              Legros was indicted on one count of being a felon in

13   possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

14   Following a jury trial, he was convicted of the offense.

15              Prior to sentencing the United States Probation Office

16   prepared a presentence investigation report ("PSR") calculating a

17   sentencing range under the United States Sentencing Guidelines of

18   110 to 137 months.   According to the PSR, the Probation Office

19   arrived at that range by assessing a base offense level of 20,

20   U.S.S.G. § 2K2.1(a)(4)(A); a two-level enhancement because the

21   firearm was stolen, id. § 2K2.1(b)(4)(A); a four-level

22   enhancement because the firearm was possessed in connection with

23   another felony offense, id. § 2K2.1(b)(6); and a criminal history

24   category of V.   The maximum sentence permitted by statute,

25   however, was 120 months, ten months above the bottom of the

26   applicable Guidelines range.   See 18 U.S.C. § 924(a)(2).

                                       3
1              The four-level enhancement under U.S.S.G. § 2K2.1(b)(6)

2    is central to this appeal.   Without the enhancement, the

3    applicable Guidelines range would have been 77 to 96 months.

4              According to the PSR, the enhancement was based on the

5    assertion that Legros had committed "aggravated assault" by

6    shooting at one Christopher Passius in retaliation for Passius's

7    testimony against two fellow gang members who had been convicted

8    in state court of manslaughter for beating to death a member of a

9    rival gang.   The government argued that the enhancement was

10   proper because Legros had "discharged the charged firearm at

11   Christopher Passius in retaliation for what [Legros] believed was

12   Passius's betrayal of fellow 'Bloods' members through Passius's

13   cooperation with Suffolk County law enforcement at trial."

14   Letter from Special Assistant U.S. Attorney Sondra M. Mendelson

15   to the district court dated Mar. 31, 2005, at 4.

16             Legros challenged the enhancement.    He argued that

17   there was no evidence that he was in a gang or that he had shot

18   at Passius or anyone else.

19             At the sentencing hearing, the government introduced

20   evidence intended to support the enhancement.    The police had

21   taken a statement of one Jermaine Bullock, who said he had seen

22   Legros fire a weapon.   Although Bullock himself did not testify,2

23   Detective Christopher Loeffler, who had taken Bullock's



          2
            Another police detective testified that after a diligent
     search, he was unable to locate Bullock to subpoena him for the
     sentencing hearing.

                                      4
1    statement, read Bullock's statement to the court.     The district

2    court found Bullock's hearsay statement reliable and admitted it.

3    In relevant part, Loeffler said that Bullock told him:

4              When I was looking up the street, I saw a guy
5              with a hood and I heard a few shots. At
6              first I took cover, but then I tried to
7              mediate the crisis between Chris and Herb.
8              Herb was firing in the air.

 9             Police told me they found a bullet hole in
10             Chris's car. I don't know how that got
11             there.
12
13   Sentencing Transcript, May 20, 2005 ("Sentencing Tr."), at 38

14   (emphasis added).

15             At the conclusion of the hearing, the court imposed a

16   term of imprisonment of 120 months, which was the maximum

17   permitted by statute and within the range of 110 to 137 months

18   recommended in the PSR based in part on the four-level

19   enhancement.   The court said that "there is proof adduced at

20   th[e] hearing that the defendant was the individual who fired the

21   gun in the air."    Id. at 73.   Noting also that the shooting

22   occurred in a residential neighborhood, the court found that such

23   conduct "amounts to reckless endangerment."     Id.   Alternatively,

24   the court found that the enhancement was applicable on the basis

25   relied upon in the PSR: that Legros had possessed the gun in the

26   course of committing an aggravated assault.

27             Legros appeals.




                                        5
1                                   DISCUSSION

2                I.    Standard of Review

 3               [T]he appellate court . . . must first ensure
 4               that the district court committed no
 5               significant procedural error, such as failing
 6               to calculate (or improperly calculating) the
 7               Guidelines range, treating the Guidelines as
 8               mandatory, failing to consider the [18
 9               U.S.C.] § 3553(a) factors, selecting a
10               sentence based on clearly erroneous facts, or
11               failing to adequately explain the chosen
12               sentence –- including an explanation for any
13               deviation from the Guidelines range.
14               Assuming that the district court's sentencing
15               decision is procedurally sound, the appellate
16               court should then consider the substantive
17               reasonableness of the sentence
18               imposed . . . .

19   Gall v. United States, 128 S. Ct. 586, 597 (2007).        We review

20   sentences for reasonableness under an abuse-of-discretion

21   standard.    United States v. Cutler, 520 F.3d 136, 156 (2d Cir.

22   2008).   The abuse-of-discretion standard incorporates de novo

23   review of questions of law (including interpretation of the

24   Guidelines) and clear-error review of questions of fact.        Cutler,

25   520 F.3d at 157; see also United States v. Richardson, 521 F.3d

26   149, 156 (2d Cir. 2008).

27               II.    Enhancement Under U.S.S.G. § 2K2.1(b)(6)

28               Legros argues that there is insufficient evidence to

29   support a four-level enhancement on the ground that he "used or

30   possessed any firearm . . . in connection with another felony

31   offense."    U.S.S.G. § 2K2.1(b)(6).       According to the applicable

32   Guidelines' commentary, this enhancement applies "if the

33   firearm . . . facilitated, or had the potential of facilitating,


                                            6
1    another felony offense."     U.S.S.G. § 2K2.1 application note

2    14(A).   The commentary defines "another felony offense" as "any

3    [f]ederal, state, or local offense," other than the offense of

4    conviction, "punishable by imprisonment for a term exceeding one

5    year, regardless of whether the criminal charge was brought, or a

6    conviction obtained."   Id., application note 14(C).

7               The government bears the burden of proving by a

8    preponderance of the evidence that the defendant committed

9    another felony offense.    United States v. Spurgeon, 117 F.3d 641,

10   643 (2d Cir. 1997) (per curiam).       Each element of the underlying

11   felony offense must be established.      See United States v. Betts,

12   509 F.3d 441, 445 (8th Cir. 2007).      Although we do not require

13   that the district court state each element on the record and

14   declare it proved by a preponderance of the evidence, like other

15   "facts disputed in connection with sentencing, the [district]

16   court is required to make findings sufficient to permit appellate

17   review."   United States v. Thompson, 76 F.3d 442, 456 (2d Cir.

18   1996).

19   A.   Reckless Endangerment

20              We begin with the district court's finding that

21   Legros's possession of the gun was in connection with his

22   commission of the crime of reckless endangerment.      In New York,

23   there are two degrees of reckless endangerment.      "A person is

24   guilty of reckless endangerment in the second degree," a

25   misdemeanor, "when he recklessly engages in conduct which creates

26   a substantial risk of serious physical injury to another person."

                                        7
1    N.Y. Penal Law § 120.20.   "A person is guilty of reckless

2    endangerment in the first degree," a felony, "when, under

3    circumstances evincing a depraved indifference to human life, he

4    recklessly engages in conduct which creates a grave risk of death

5    to another person."   Id. § 120.25.   Under New York law, depraved

6    indifference to human life is a "culpable mental state."     People

7    v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 695, 852 N.E.2d

8    1163, 1167 (2006).

 9             Reflecting wickedness, evil or inhumanity, as
10             manifested by brutal, heinous and despicable
11             acts, depraved indifference is embodied in
12             conduct that is so wanton, so deficient in a
13             moral sense of concern, so devoid of regard
14             of the life or lives of others, and so
15             blameworthy as to render the actor as
16             culpable as one whose conscious objective is
17             to kill. Quintessential examples are firing
18             into a crowd; driving an automobile along a
19             crowded sidewalk at high speed; opening the
20             lion's cage at the zoo; placing a time bomb
21             in a public place; poisoning a well from
22             which people are accustomed to draw water;
23             opening a drawbridge as a train is about to
24             pass over it and dropping stones from an
25             overpass onto a busy highway.

26   People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 276, 844

27   N.E.2d 721, 730 (2005) (per curiam) (internal quotation marks,

28   citations, and footnote omitted).

29             For a defendant to be subject to the four-level

30   enhancement under U.S.S.G. § 2K2.1(b)(6), he must have possessed

31   a firearm in connection with another felony offense.   In this

32   case, then, it would have been insufficient support for the

33   enhancement for the district court to find that Legros recklessly

34   engaged in conduct creating a substantial risk of serious

                                      8
1    physical injury to another person, because that would support

2    only second-degree reckless endangerment, a misdemeanor.     An

3    enhancement for reckless endangerment could be imposed only if

4    the district court properly found that his conduct created a

5    "grave risk of death" and that he acted with a mens rea of

6    "depraved indifference to human life."    See N.Y. Penal Law

7    § 120.25.

8                In explaining its decision to impose the four-level

9    enhancement, the district court made no mention of a "grave risk"

10   or "depraved indifference."    The court said:

11               [T]here is proof adduced at th[e] hearing
12               that the defendant was the individual who
13               fired the gun in the air. That amounts to
14               reckless endangerment. The court heard
15               testimony with respect to the fact that it
16               was a neighborhood. And the statement is
17               confirmed by the admission of Germaine [sic]
18               Bullock's statement into evidence.

19   Sentencing Tr. at 73.    There was sufficient evidence to support

20   the district court's finding that, in the course of the incident

21   in question, Legros fired the gun in the air, as described by

22   Bullock, and that he did so in a residential area.    But these

23   facts, standing alone, are not sufficient to support a finding of

24   felony reckless endangerment.    See People v. Davis, 72 N.Y.2d 32,

25   36-37, 530 N.Y.S.2d 529, 531, 526 N.E.2d 20, 22 (1988) (shooting

26   pistol into the air does not constitute reckless endangerment in

27   the first degree) (citing People v. Richardson, 97 A.D.2d 693,

28   694, 468 N.Y.S.2d 114, 115 (1st Dep't 1983)).    Shooting a gun

29   into the air in a residential area is of course risky.     But


                                       9
1    nothing in the record indicates that the district court found

2    such conduct created a "grave risk of death" and that Legros

3    acted with a mens rea of "depraved indifference to human life."

4    See N.Y. Penal Law § 120.25.

5               We need not decide whether there is evidence in the

6    record to support such findings.      Without a further explanation

7    from the district court, we cannot affirm its judgment in this

8    respect on this ground.   See United States v. Sindima, 488 F.3d

9    81, 88 (2d Cir. 2007); United States v. Dupre, 462 F.3d 131, 146

10   (2d Cir. 2006), cert. denied, 127 S. Ct. 1026 (2007).3

11   B.   Aggravated Assault

12              The district court's decision as to the propriety of

13   the enhancement was also based on the alternative theory that the

14   "[]other felony" in connection with which Legros possessed the

15   gun was an aggravated assault.   Although there is no crime of

16   "aggravated assault" in New York, Legros would be guilty of

17   attempted assault in the first degree, a felony, if, as alleged

18   by the government and in the PSR, Legros fired one or more shots

19   at Passius.4   "A person is guilty of assault in the first degree


           3
            The government argues that the plain-error standard of
     review applies because Legros did not object to the district
     court's reckless endangerment finding. See Fed. R. Crim. P.
     52(b). While Legros did not use the terms "grave risk" and
     "depraved indifference," we think that his argument to the
     district court challenging the propriety of imposing the
     enhancement based on the theory that the other felony was the
     crime of reckless endangerment was sufficient to raise the issue.

           4
            According to the PSR, no one was injured as a result of
     Legros's conduct.
                                      10
1    when . . . [w]ith intent to cause serious physical injury to

2    another person, he causes such injury to such person or to a

3    third person by means of a deadly weapon or a dangerous

4    instrument."   N.Y. Penal Law § 120.10(1).   "A person is guilty of

5    an attempt to commit a crime when, with intent to commit a crime,

6    he engages in conduct which tends to effect the commission of

7    such crime."   Id. § 110.00.

8              As was the case with respect to the court's treatment

9    of reckless endangerment, the court did not mention the essential

10   elements of the offense or identify facts in the record that

11   satisfied them.   The court said:

12             The last basis that the court finds the
13             enhancement is applicable is with respect to
14             the aggravated assault. The temporal
15             connection is strong in terms of the
16             defendant's apprehension and the events
17             preceding his arrest. There is sufficient
18             circumstantial evidence that the defendant
19             was wearing a black-hooded sweatshirt, and
20             that also is confirmed as the defendant being
21             the shooter when we have the statement of Mr.
22             Bullock which has been admitted and
23             thoroughly corroborates the circumstances
24             involved in this case.

25   Sentencing Tr. at 73.   Indeed, as was the case with the reckless

26   endangerment theory, the evidence was sufficient to support a

27   finding that Legros was "the shooter."   But the district court

28   identified no facts to support a finding that Legros intended to

29   cause serious injury or engaged in conduct which tends to effect

30   such injury.   Shooting a gun "in the air," as Legros's conduct

31   was described by the only eyewitness statement introduced at

32   sentencing, is insufficient to support a finding of attempted

                                     11
1    first-degree assault.   See People v. Leonardo, 89 A.D.2d 214,

2    215-16, 455 N.Y.S.2d 434, 435-36 (4th Dep't 1982) (finding

3    evidence insufficient to support intent to cause serious physical

4    injury where defendant aims gun at tree), aff'd, 60 N.Y.2d 683,

5    455 N.E.2d 1261, 468 N.Y.S.2d 466 (1983); see also United States

6    v. Pimentel, 346 F.3d 285, 298 (2d Cir. 2003) (stating that under

7    New York law of attempts, defendant must engage in conduct that

8    comes "dangerously near" commission of the completed crime, and

9    that "[i]n the context of attempted murder prosecutions . . . the

10   Government must establish that the defendant pointed a weapon at

11   a victim and was about to kill him with it" (emphasis added)),

12   cert. denied, 543 U.S. 955 (2004).   In enhancing Legros's

13   sentence on the basis of aggravated assault, the district court

14   did not explain what evidence it relied upon in finding, if it

15   did so find, that Legros aimed and shot at Passius.5

16             We cannot say that there is insufficient evidence to

17   support the enhancement on this basis.   The record on appeal does

18   not include a full transcript of Legros's trial, and the district

19   court is, of course, more familiar with the facts of and

20   proceedings in this case than are we.    But, as with the reckless

21   endangerment theory, we are unable to affirm a finding of felony

22   assault without a more detailed explanation by the district court


          5
            Although a police officer testified that an expended
     bullet matched to Legros's gun was found within a vehicle parked
     in the vicinity of the shooting, and Bullock said that the police
     told him they found a bullet hole in Passius's car, the record on
     appeal does not indicate whether Passius was in or near the car
     when the gun was discharged.
                                     12
1    identifying the facts in the record that would support such a

2    finding.    See United States v. Carter, 489 F.3d 528, 540 (2d Cir.

3    2007), cert. denied, 128 S. Ct. 1066 (2008).     We therefore vacate

4    the judgment and remand for resentencing.6

5                III.   Remaining Arguments

6                Legros makes several other arguments challenging his

7    sentence.    We find them to be without merit.

8                First, Legros argues that under the Fifth and Sixth

9    Amendments his sentence cannot be enhanced under U.S.S.G.

10   § 2K2.1(b)(6) based on his commission of a separate felony

11   offense unless the elements of that offense are proved to a jury

12   beyond a reasonable doubt.     We recently rejected that argument.

13   In United States v. Martinez, 525 F.3d 211, 214-15 (2d Cir. 2008)

14   (per curiam), we adopted the Third Circuit's holding in United


          6
            Upon review of the record, we find a possible third basis
     that the district court may have relied on for the section
     2K2.1(b)(6) enhancement: criminal possession of stolen property.
     See N.Y. Penal Law § 165.45(4). Neither the defendant nor the
     government raised an argument to challenge or defend the
     enhancement on that basis. The district court, however, made no
     finding that Legros knew the firearm was stolen, an essential
     element of felony possession of stolen property under New York
     law. See Krause v. Bennett, 887 F.2d 362, 370 (2d Cir. 1989).
     Because the PSR states that the weapon had been stolen nearly a
     decade before the offense of conviction, the district court could
     not, without more, infer Legros's knowledge from the fact of his
     unlawful possession. See People v. Davis, 163 A.D.2d 826, 827,
     558 N.Y.S.2d 358, 360 (4th Dep't) (mem.), appeal denied, 76
     N.Y.2d 939, 564 N.E.2d 678, 563 N.Y.S.2d 68 (1990); People v.
     Sturgis, 122 A.D.2d 535, 535, 504 N.Y.S.2d 899, 899 (4th Dep't
     1986) (mem.), aff'd, 69 N.Y.2d 816, 506 N.E.2d 532, 513 N.Y.S.2d
     961 (1987). As was the case with the other two possible grounds
     for a felony offense enhancement, we are unable to affirm a
     finding of felony possession of stolen property without a fuller
     explanation from the district court identifying the record
     evidence to support such a finding.
                                       13
1    States v. Grier, 475 F.3d 556 (3d Cir.) (en banc), cert. denied,

2    128 S. Ct. 106 (2007):   "Facts relevant to application of the

3    Guidelines -- whether or not they constitute a 'separate offense'

4    -- do not . . . constitute 'elements' of a 'crime' under the

5    rationale of [Apprendi v. New Jersey, 530 U.S. 466 (2000),] and

6    do not implicate the rights to a jury trial and proof beyond a

7    reasonable doubt."   Id. at 567-68.

8              Second, Legros argues that the district court was

9    "swayed" in its sentencing decision by evidence that he says was

10   improperly admitted: that he was a member of a gang.    Appellant's

11   Br. at 23.   We need not decide whether any such evidence was

12   improperly admitted because the district judge explicitly stated

13   in the course of the sentencing that she made no finding as to

14   whether Legros's conduct was gang-related.

15             Legros also argues that Bullock's statement, read into

16   the record by Detective Loeffler, is unreliable.   Although

17   Bullock did not personally testify, hearsay testimony is

18   permitted in sentencing hearings and the district court did not

19   abuse its discretion in finding the hearsay reliable.   See United

20   States v. Martinez, 413 F.3d 239, 242-44 (2d Cir. 2005), cert.

21   denied, 126 S. Ct. 1086 (2006).

22             Finally, Legros argues that the district court failed

23   to consider the sentencing factors enumerated in 18 U.S.C.

24   § 3553(a) and failed to treat the Guidelines as advisory.

25   Although the district judge asked for argument on where within

26   the Guidelines range she should sentence Legros, she also invited

                                       14
1    counsel to make any argument she should consider after reviewing

2    the Guidelines range.   In fact, the district judge specifically

3    discussed the section 3553(a) factors, stated that she had

4    considered them all, and stated that the sentence was not imposed

5    "as a result simply of the guidelines."    Sentencing Tr. at 80.

6    "[W]e presume, in the absence of record evidence suggesting

7    otherwise, that a sentencing judge has faithfully discharged her

8    duty to consider the statutory factors."    United States v.

9    Fernandez, 443 F.3d 19, 30 (2d Cir.), cert. denied, 127 S. Ct.

10   192 (2006).   Overall, the record in this case reflects that the

11   district court considered the section 3553(a) factors and did not

12   consider itself bound by the Guidelines range.    See United States

13   v. Brown, 514 F.3d 256, 270 (2d Cir. 2008).

14                               CONCLUSION

15             For the foregoing reasons, the judgment of the district

16   court is vacated and the case remanded to the district court for

17   further proceedings.




                                     15
