     09-3812-cr
     United States v. Torrance McCown


                                 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. W hen 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.



 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 6th day of October, two thousand ten.
 4
 5   PRESENT:
 6
 7                    DEBRA ANN LIVINGSTON,
 8                    GERARD E. LYNCH,
 9                                     Circuit Judges,
10                    WILLIAM K. SESSIONS III
11                                     District Judge.*
12
13
14
15   UNITED STATES OF AMERICA
16             Appellee,
17
18           -v.-                                                                No. 09-3812-cr
19
20   TORRANCE McCOWN,
21            Defendant-Appellant.
22
23
24                                      RICHARD S. CRAMER, Hartford, Connecticut, for Defendant-
25                                      Appellant.
26
27
28




             *
              The Honorable William K. Sessions III, Chief Judge of the United States District Court for
     the District of Vermont, sitting by designation.
 1                                  H.GORDON HALL, Assistant United States Attorney (Raymond F.
 2                                  Miller, Assistant United States Attorney, on the brief) for David B.
 3                                  Fein, United States Attorney for the District of Connecticut, New
 4                                  Haven, Connecticut, for Appellees.
 5
 6          Appeal from the United States District Court for the District of Connecticut (Janet C.

 7   Hall, Judge.)

 8          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

 9   that the judgment of conviction and sentence imposed on September 2, 2009 is AFFIRMED.

10          Defendant Torrance McCown appeals from a judgment of conviction entered on September

11   2, 2009 following a jury trial in the District of Connecticut convicting him of one count of

12   conspiracy to distribute 50 grams or more of cocaine base, see 21 U.S.C. §§ 846, 841(a)(1), and

13   846(b)(1)(A)(iii). The district court imposed the statutory mandatory minimum and sentenced

14   McCown to 120 months. See 21 U.S.C § 841(b). On appeal, McCown challenges the sufficiency

15   of the evidence to support his conviction. Alternatively, he contends that even if the conviction

16   stands, the sentence imposed was “substantively unreasonable” because the district court

17   erroneously believed that it was bound by the statutory mandatory minimum. We presume the

18   parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

19   I.     Sufficiency of the Evidence

20          McCown argues that there was insufficient evidence to convict him of conspiring to

21   distribute in excess of 50 grams of cocaine base. The claim was properly preserved below, and,

22   accordingly, we review it de novo. United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997).

23   A defendant challenging the sufficiency of the evidence to support his conviction “bears a heavy

24   burden,” United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2008) (internal quotations omitted),

25   because we affirm where viewed “in the light most favorable to the prosecution, any rational trier

                                                      2
 1   of fact could have found the essential elements.” United States v. Ionia Mgmt. S.A., 555 F.3d 303,

 2   309 (2d Cir. 2009) (per curiam) (internal quotations omitted); see generally Jackson v. Virginia, 443

 3   U.S. 307 (1979). In reviewing such a challenge, “we must credit every inference that could have

 4   been drawn in the government’s favor” and “defer to the jury’s determination of the weight of the

 5   evidence and the credibility of witnesses, and to the jury’s choice of the competing inferences that

 6   can be drawn from the evidence.” United States v. Reifler, 446 F.3d 65, 94 (2d Cir. 2006) (internal

 7   citation omitted) (internal citation and quotations omitted). “In cases of conspiracy, deference to

 8   the jury’s findings is especially important because a conspiracy by its very nature is a secretive

 9   operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the

10   precision of a surgeon’s scalpel.” United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006) (internal

11   quotations and citations omitted).

12          To establish the crime of conspiracy, the government needed to prove two elements at trial:

13   (1) that the conspiracy alleged in the indictment existed, and (2) that the defendant knowingly joined

14   or participated in it. Snow, 462 F.3d at 68. In this case, the government also needed to establish that

15   it was reasonably foreseeable to the defendant that the conspiracy involved 50 grams or more of

16   cocaine base, or crack cocaine.

17          The government’s evidence with respect to each element was overwhelming. At trial, the

18   government introduced McCown’s post-arrest statement in which he confessed to obtaining

19   significant quantities of cocaine base from a co-conspirator, Roshaun Hoggard, repackaging the

20   cocaine into “dime bags” for resale, and returning a portion of the proceeds to Hoggard. The

21   government also introduced intercepted cell phone conversations between McCown and Hoggard

22   in which the two discussed, among other things, McCown’s purchase of drugs from Hoggard and


                                                       3
 1   McCown’s delivery of drugs, at Hoggard’s behest, to other co-conspirators. Finally, the government

 2   offered the testimony of several government agents who testified to their surveillance of a man

 3   identified through wiretap evidence as McCown delivering drugs and otherwise participating in the

 4   conspiracy.

 5          McCown contends that his confession was “uncorroborated” by the other evidence at trial

 6   and, as such, was insufficient to support his conviction. Cf. United States v. Bryce, 208 F.3d 346,

 7   354 (2d Cir. 2000) (“It is a long-settled principle that an accused may not be convicted on his own

 8   uncorroborated confession.” (internal quotations omitted)). The argument is without merit. As

 9   detailed above, the government’s evidence of McCown’s knowing involvement in the conspiracy

10   was overwhelming, and McCown’s confession was directly supported by both intercepted phone

11   conversations and the testimony of government agents. Indeed even if the confession was entirely

12   disregarded, the government’s other evidence was more than sufficient to permit a reasonable trier

13   of fact to conclude that McCown knowingly joined the conspiracy. To the extent McCown raises

14   other arguments with respect to the sufficiency of the evidence, we have considered them and reject

15   them as meritless.

16   II.    Sentencing

17          Alternatively, McCown argues the district court erred in imposing the 120-month statutory

18   mandatory minimum. See 21 U.S.C. § 841(b). Specifically, McCown argues, for the first time on

19   appeal,1 that as a result of United States v. Booker, 543 U.S. 220 (2005), and its elimination of the



            1
              The government contends that the law of this Circuit does not squarely address the
     standard of review to be applied where a challenge to the substantive reasonableness of a
     sentence is not preserved below. It urges this Court to adopt the same “plain error” standard
     applied to unpreserved procedural reasonableness challenges. See United States v. Villafuerte,
     502 F.3d 204, 208-11 (2d Cir. 2007). Because McCown identifies no error, plain or otherwise,
     we need not and do not address the issue.

                                                      4
 1   mandatory guidelines, the mandatory minimum in section 841(b) must give way to the “parsimony

 2   clause” in 18 U.S.C. § 3553(a) which directs district courts to “impose a sentence sufficient, but not

 3   greater than necessary,” to advance the purposes of that section. In other words, McCown argues

 4   that the District Court was free to impose a sentence below 120 months if it found such a sentence

 5   “sufficient, but not greater than necessary” to further the goals of section 3553(a) and that it erred

 6   in believing itself bound by the mandatory minimum in section 841(b).

 7          This Court has previously considered and rejected this very argument in the context of a

 8   mandatory minimum sentence imposed pursuant to section 841(b). See United States v. Samas, 561

 9   F.3d 108, 110-11 (2d Cir. 2009). As we explained in Samas, the wording of section 3553(a) is not

10   “inconsistent with a [congressionally prescribed] sentencing floor.” Id. at 111; see also Kimbrough

11   v. United States, 552 U.S. 85, 107 (2007) (“[S]entencing courts,” although permitted by § 3553(a),

12   after Booker, to deviate from an advisory-Guidelines-recommended range of imprisonment based

13   on their policy disagreements with the Guidelines, “remain bound by the mandatory minimum

14   sentences prescribed in the [statutes].”). McCown provides no basis for disturbing that conclusion

15   and conceded at oral argument that Samas binds this Court and forecloses his argument. Moreover,

16   because he does not raise any other challenge to his sentence as imposed, we affirm the sentence as

17   reasonable.

18   III.   Conclusion

19          For the foregoing reasons, the judgment of the district court is AFFIRMED.

20
21                                                         FOR THE COURT:
22                                                         Catherine O’Hagan Wolfe, Clerk
23
24
25




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