         11-2154
         United States v. Washington

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 29th day of November, two thousand twelve.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                RICHARD C. WESLEY,
 8                PETER W. Hall,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                11-2154
18
19       RONNIE WASHINGTON, AKA GOTTI,
20
21
22                                     Defendant-Appellant,
23
24       Larry Devore, AKA L.D., Joseph Jackson, AKA M.I., AKA
25       Mighty, Jayquis Brock, AKA Pook, AKA Pooka, Mark
26       Baskerville, AKA Munson, Russell Battles, AKA Cuddy Russ,
27       Cuddy, Stephanie D'Agostino, Sherrod Daniels, AKA Hot Sauce,
28       Harry Diaz, AKA Hottie, AKA H., James Dickerson, Steven
29       Dicks, AKA God, Derron Dockery, AKA Day Day, Manokus Fields,
30       AKA Fresh, Devante Fortune, AKA Pooty, AKA Will, AKA Devante
31       Fortuna, Maurice Hill, AKA Mo Digs, Shamaine Hobby, Edmund
32       Jackson, Sr., AKA Eddie, James Jenkins, AKA Black, Torrence
33       Jones, Demetrius Little, AKA Hap, AKA Happy, Kristin
 1   Longobardi, Eric Lumpkin, Wendel McDuffie, AKA Win, Ryan
 2   Moore, Javon Moorning, AKA Lil Red, Gemini Napoleon, AKA
 3   Poe, AKA I.G., AKA Gemi, Charles Nichols, Raymond Rice,
 4   Chanel Sinclair, Roger Sullivan, AKA Manny O, Eleazar
 5   Thompson, AKA L., Tylan Thompson, AKA Finner, Brandon
 6   Tolson, AKA Black, Alvin Townsend, AKA Gurb, Tyrone
 7   Williams, Darren Winfrey, AKA D., Milton Johnson, AKA Tilt,
 8
 9                     Defendants.
10
11
12   FOR APPELLEE:     Robert M. Spector and Sandra S. Glover,
13                     Assistant United States Attorneys, for
14                     David B. Fein, United States Attorney for
15                     the District of Connecticut, New Haven,
16                     CT.
17
18   FOR APPELLANT:    Jodi Zils Gagne, Law Offices of Jodi Zils
19                     Gagne, LLC, Bristol, CT.
20
21        Appeal from the United States District Court for the
22   District of Connecticut(Burns, J.).
23
24       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

25   AND DECREED that the judgment of the United States District

26   Court for the District of Connecticut is AFFIRMED.

27       Defendant-Appellant Ronnie Washington, a/k/a Gotti

28   (“Washington”) appeals from the May 20, 2011 judgment of the

29   United States District Court for the District of Connecticut

30   (Burns, J.) sentencing him to 240 months of imprisonment and

31   96 months of supervised release for conspiracy to possess

32   with intent to distribute twenty-eight grams or more of

33   cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

34   (b)(1)(B), and 846.   Washington had pled guilty to that

                                     2
1    offense pursuant to an agreement under which he expected a

2    sentence half the length of the sentence he would ultimately

3    receive.     Because his sentence was double his expectation,

4    Washington challenges the procedural and substantive

5    reasonableness of his sentence.     The panel has reviewed the

6    briefs and the record in this appeal and agrees unanimously

7    that oral argument is unnecessary because “the facts and

8    legal arguments [have been] adequately presented in the

9    briefs and record, and the decisional process would not be

10   significantly aided by oral argument.”     Fed. R. App. P.

11   34(a)(2)(C).     We assume the parties’ familiarity with the

12   facts, the procedural history of the case, and the issues on

13   appeal.

14       A sentencing judge has wide latitude in crafting a

15   sentence for a particular offender for a particular crime.

16   United States v. Cavera, 550 F.3d 180, 188-89 (2d Cir. 2008)

17   (en banc).     We review that sentence under a “deferential

18   abuse-of-discretion standard.”      Id. at 189 (internal

19   quotation marks omitted).     The parties entered into a plea

20   agreement that stipulated that, in exchange for his plea,

21   Washington would receive a recommendation for a three-level

22   reduction in his base-offense level.     The parties entered


                                     3
1    into the agreement before a determination of Washington’s

2    career-offender status.     The agreement established that

3    “[a]ssuming a Criminal History Category VI, an adjusted

4    offense level of 25 . . . would result in an incarceration

5    range of 120-137 months of imprisonment . . . .”       JA 47.

6    The agreement also noted: “[T]he defendant may be a career

7    offender . . . based on his multiple prior felony

8    convictions for sale of narcotics.     If he is a career

9    offender, his adjusted offense level will increase to 34.

10   The defendant reserves his rights to challenge any

11   determination that he is a career offender.”     Id.

12       The PSR originally concluded that the defendant’s base

13   offense level was 28.     With the three-level stipulated

14   reduction, the PSR placed the defendant at an adjusted-

15   offense level of 25.    After receiving more information about

16   Washington’s prior convictions, a second addendum to the PSR

17   concluded that the defendant was a career offender.        That

18   status, as the plea agreement anticipated, moved

19   Washington’s adjusted-offense level up to 34.     With an

20   offense level of 34, Washington faced a guidelines range of

21   262-327 months.   Prior to and at sentencing, the government

22   pushed for a sentence above the 120-137 month range and


                                     4
1    deferred to the court on whether the 262-327 month range on

2    account of Washington’s career offender status was

3    appropriate. At sentencing, the court adopted the findings

4    set forth in the PSR and specifically found that the

5    defendant was a career offender who faced a guideline range

6    of incarceration of 262-327 months.   The court eventually

7    imposed a 240 month sentence.

8        A. Career-Offender Status

9        Washington first contends that the district court erred

10   in treating him as a career offender pursuant to U.S.S.G. §

11   4B1.1(a).   Police arrested Washington on September 25, 1998

12   in New Haven for a narcotics related offense.   Police then

13   arrested Washington again on October 14, 1998 for another

14   narcotics related offense.   On November 16, 1998, when he

15   was 17 years old, Washington pled guilty to these two

16   offenses.   Twelve days later, on November 28, 1998,

17   Washington turned 18.   Sentencing commenced on January 25,

18   1999, and the court sentenced Washington to six years,

19   suspended after three, with three years probation.

20       Washington argues that those offenses should not count

21   towards his career-offender status because, inter alia, he

22   was a minor when he committed and pled guilty to them.   That


                                     5
1    argument is without merit.     The comments to the Sentencing

2    Guidelines provide that a “conviction for an offense

3    committed prior to age eighteen is an adult conviction if it

4    is classified as an adult conviction under the laws of the

5    jurisdiction in which the defendant was convicted . . . .”

6    U.S.S.G. § 4B1.2, comt. n.1.     Here, it is undisputed that

7    the state proceeded against Washington as an adult in an

8    adult forum.   See Appellant’s Br. at 24-25.    We cannot say,

9    therefore, that the district court erred in treating these

10   two convictions as adult convictions.

11       Next, Washington asks us to consider these two offenses

12   as only one offense in the event we decide that the

13   convictions are adult convictions. Because he simultaneously

14   pled guilty to both offenses and was simultaneously

15   sentenced for both offenses, Washington suggests that the

16   two crimes were treated as one crime at both the plea and

17   sentencing stages.   He argues that we should do the same in

18   deciding his career-offender status.     We, however, remain

19   unpersuaded. “Prior sentences always are counted separately

20   if the sentences were imposed for offenses that were

21   separated by an intervening arrest (i.e., the defendant is

22   arrested for the first offense prior to committing the


                                     6
1    second offense).”    U.S.S.G. § 4A1.2(a)(2).   Here, police

2    arrested Washington for a drug offense and then, while he

3    was on pre-trial release, arrested Washington for another

4    drug offense.    The district court, therefore, did not err in

5    counting the offenses separately.

6        We have considered Washington’s remaining arguments

7    regarding his career-offender status and find them to be

8    without merit.    The district court did not abuse its

9    discretion in treating Washington as a career offender.       See

10   U.S.S.G. § 4B1.1(a).

11       B. Procedural and Substantive Reasonableness

12       Washington’s remaining three arguments are that (1) the

13   court punished him for his failure to cooperate in the

14   prosecution of his co-defendants;     (2) the court imposed a

15   sentence above the government’s recommendation; and (3) the

16   court failed to take into account the negotiations behind

17   the plea agreement, such as his information proffer.

18   Washington boils this argument down to not receiving the

19   benefit of his plea bargain.     It is unclear whether

20   Washington intends these arguments to cut against the

21   sentence’s procedural reasonableness, substantive

22   unreasonableness, or both.     The government contends that


                                     7
1    these arguments are subject to plain error review, because

2    they were raised for the first time on appeal.      No matter

3    what standard we use, however, the arguments are without

4    merit because the record simply does not support these

5    assertions.

6        The plea agreement that Washington signed specifically

7    anticipated that his base-offense level might rise depending

8    on his career-offender status.      The district court, based on

9    the PSR and after hearing argument, concluded that

10   Washington was a career-offender subject to a 262-327 month

11   sentence.     The plea agreement, therefore, contemplated this

12   result.     Moreover, Washington never objected to the PSR and

13   averred that he read and understood its contents after a

14   discussion with his lawyer.     Though it did not seek a

15   sentence within that range, the government deferred to the

16   court’s judgment on whether to sentence Washington within

17   that range.     The government did, however, seek a sentence

18   higher than the 120-137 months that would have been

19   applicable if Washington was not a career offender.

20       Considering that background, we cannot find evidence in

21   the record that the district court punished the defendant

22   for not cooperating, failed to consider the government’s



                                     8
1    position on sentencing, or inappropriately failed to

2    consider the alleged negotiations that led up to the

3    agreement when it imposed a 240 month sentence.     By the

4    terms of the agreement, Washington did receive the benefit

5    of his bargain.     We “presume, in the absence of record

6    evidence suggesting otherwise, that a sentencing judge has

7    faithfully discharged her duty to consider the statutory

8    factors.”     United States v. Fernandez, 443 F.3d 19, 30 (2d

9    Cir. 2006).     Here, Washington has failed to provide us with

10   record evidence that the sentencing judge failed to

11   discharge her sentencing duties.     The fact that Washington

12   ended up with a below-guidelines sentence reflects the

13   contrary.     To the extent that his arguments suggest

14   procedural unreasonableness, we find them to be without

15   merit.

16       Lastly, we “set aside a district court’s substantive

17   determination only in exceptional cases where the trial

18   court’s decision cannot be located within the range of

19   permissible decisions.”     Cavera, 550 F.3d at 189 (internal

20   quotation marks omitted).     The district court carefully

21   reviewed all the relevant material in imposing its below-

22   guidelines sentence.     We will not substitute our judgment


                                     9
1    for the judgment of the district court, and Washington has

2    not persuaded us that this is one of those exceptional

3    cases.   We hold, therefore, that the sentence was

4    substantively reasonable.

5        We have considered Appellant’s remaining arguments and,

6    after a thorough review of the record, find them to be

7    without merit.

8        For the foregoing reasons, the judgment of the district

9    court is hereby AFFIRMED.

10
11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




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