18-2187-cr
United States v. Covington

                                  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 TO 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 15th day of January, two thousand twenty.

PRESENT:
                    AMALYA L. KEARSE,
                    SUSAN L. CARNEY,
                    JOSEPH F. BIANCO,
                                 Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                    Appellee,

                             v.                                         No. 18-2187

TERRY COVINGTON,

           Defendant-Appellant.
_________________________________________

FOR APPELLEE:                                      GILLIAN GROSSMAN, Assistant United
                                                   States Attorney (Daniel B. Tehrani,
                                                   Assistant United States Attorney, on the
                                                   brief), for Geoffrey S. Berman, United
                                                   States Attorney for the Southern District
                                                   of New York, New York, NY.
FOR DEFENDANT-APPELLANT:                            DONNA R. NEWMAN, Law Offices of
                                                    Donna R. Newman, PA, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District
of New York (Briccetti, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on July 12, 2018, is
AFFIRMED.

       Defendant-Appellant Terry Covington (“Covington”) appeals from a judgment of
conviction entered in the United States District Court for the Southern District of New
York (Briccetti, J.), following a six-day jury trial. In January 2018, a jury convicted Covington
of conspiracy to distribute quantities of crack cocaine and of heroin, in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). On July 11, 2018, the District Court sentenced
Covington principally to 60 months’ imprisonment. On appeal, Covington argues that (i) the
District Court improperly allowed the government to present expert testimony at trial; and
(ii) his sentence is procedurally unreasonable. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal, to which we
refer only as necessary to explain our decision to affirm the District Court’s judgment.

       The following statement of facts is taken from the trial testimony and presented, as
we must consider it on appeal after conviction, in the light most favorable to the
government. In October 2015, Covington met Juan Montero (“Montero”) in Liberty, New
York. Montero, who had recently been released from prison, supported himself by drug-
dealing. During their meeting, Montero asked Covington to supply him with crack cocaine
and heroin for resale to Montero’s customers, and by late 2015, Covington began providing
Montero with crack cocaine.

       To avoid detection by law enforcement, Covington and Montero agreed to use coded
language when interacting by phone and by text messages. In particular, they agreed to refer
to crack cocaine using marijuana terminology, since crimes involving marijuana carry less
severe penalties than those involving crack cocaine. They agreed, for example, that they

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would refer to crack cocaine as “gorilla glue” and “animal cookies” (both, slang for
marijuana); for quantities, they would use “8th” or “8t” (shorthand references to an eighth of
an ounce of marijuana). App’x at 66-67. Covington also supplied Montero with heroin for
resale on two occasions in 2016 (one in January and one in February). They used coded
language in discussing the heroin transactions as well.

       At trial, the government relied primarily on Montero’s testimony (as a cooperating
witness), wiretap evidence, phone records, and the expert testimony of Investigator Timothy
Dymond (“Dymond”). In addition to conducting vigorous cross-examinations, Covington
introduced transcripts of communications intercepted on the wiretap of Montero’s phone
and argued that they showed that Montero lied about their agreement to use code words to
refer to crack cocaine and heroin, and claimed that he did not supply Montero with crack
cocaine or heroin for resale.

       On January 24, 2018, the jury found Covington guilty of conspiracy to distribute
quantities of crack cocaine and of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(C). The District Court sentenced Covington to 60 months’ imprisonment, to be
followed by three years of supervised release, and ordered him to pay a $100 mandatory
special assessment. This appeal followed.

       I.     Expert Testimony

       Covington challenges the District Court’s admission of Dymond’s expert testimony,
arguing that it did not address topics outside the ken of the average juror, focusing on the
admission of Dymond’s testimony about the use of spoken code for financial arrangements
in drug transactions (such as consignment agreements, the appearance, consumption and
methods of using illegal drugs, and the packaging, quantities and prices of those drugs).
Covington also argues that the bulk of Dymond’s testimony was impermissible bolstering
because it paralleled that of the government’s only fact witness, Montero. United States v.
Cruz, 981 F.2d 659, 664 (2d Cir. 1992) (expert testimony “cannot be used solely to bolster
the credibility of the government’s fact-witnesses by mirroring their version of events.”)



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       Because Covington did not raise these arguments below, we review the District
Court’s ruling only for plain error. See United States v. James, 712 F.3d 79, 96 (2d Cir. 2013).
An error is “plain” if “(1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which
in the ordinary case means it affected the outcome of the district court proceedings; and (4)
the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”
United States v. Vilar, 729 F.3d 62, 70 (2d Cir. 2013).

       Testimony as to uses of code and financial arrangements in drug transactions is often
admitted in the ordinary course of trials for drug distribution crimes. See, e.g., United States v.
Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir. 1994) (“Testimony about the weight, purity, dosages,
and prices of cocaine clearly relates to knowledge beyond the ken of the average juror.”);
United States v. Taylor, 18 F.3d 55, 60 (2d Cir. 1994) (The expert witness’s “testimony was
helpful because the amount of heroin for personal use is hopefully not something within the
ken of an average juror.”). Further, it is well established that expert testimony “may be used
on some occasions to explain even non-esoteric matters, when the defense seeks to discredit
the government’s version of events as improbable criminal behavior,” Tapia-Ortiz, 23 F. 3d
at 741 (internal quotation marks omitted). Here, the defense repeatedly argued that
Montero’s version of events was improbable. It was thus permissible for Dymond to give
testimony that indicated it was not unusual for drug traffickers to act in the manner testified
to by Montero. Accordingly, Covington’s challenge to the admission of Dymond’s expert
testimony fails, for we see no error, much less “plain error.”

       II.     Sentence

       This Court applies “a particularly deferential form of abuse-of-discretion review” on
appeals relating to sentencing. United States v. Cavera, 550 F.3d 180, 188 n.5 (2d Cir. 2008) (en
banc). A district court errs procedurally when it: (1) “fails to calculate the Guidelines range”;
(2) makes a mistake in its Guidelines calculation, or treats the guidelines as mandatory”; (3)
“does not consider the [18 U.S.C.] § 3553(a) factors”; (4) “rests its sentence on a clearly
erroneous finding of fact”; (5) “fails adequately to explain its chosen sentence”; or (6)
deviates from the Guidelines range without explanation. Id. at 190. Here, however, both
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parties acknowledge that Covington failed to properly challenge his sentence below, and thus
his appeal is subject to plain-error review. See United States v. Villafuerte, 502 F.3d 204, 205,
207 (2d Cir. 2007).

          At Covington’s sentencing, the District Court found by a preponderance of the
evidence that the amount of crack cocaine involved in the conspiracy was between 22.4 and
27 grams, and that the quantity of heroin involved in the conspiracy was 2.5 grams. The
District Court relied on the Drug Equivalency Table (“DET”) set forth in Application Note
8(D) of U.S.S.G. § 2D1.1 to convert the respective quantities of crack and heroin into their
equivalent quantities of marijuana. The District Court then combined these quantities to
calculate the amount that determined Covington’s base offense level. Judge Briccetti
explained that, according to the DET conversion rate, 22.4 grams of crack cocaine is
equivalent to 79.99 kilograms of marijuana.1 He remarked as follows on the opacity of the
rationale underlying this conversion:

                    I don’t really know where the Sentencing Commission got these
                   equivalency numbers. I really don’t. I’d like to know, because it
                   seems a little bizarre that they equate 1 gram of cocaine base to
                   3,571 grams of marijuana. Okay. That’s what the guideline says. I
                   just don’t know why that number was picked . . . . [a]nd certainly
                   members of the public who are here in the courtroom would
                   understandably be completely clueless about this, which I think
                   is a bad thing. I think the public ought to be able to understand
                   sentencing, and it’s really difficult to understand, I can’t really
                   explain it, but that is the number in the relevant guidelines
                   section, so it is what it is.
          App’x at 496-97. Covington points to United States v. Kimbrough, 552 U.S. 85 (2007), to
argue that, by making these comments, the District Court “articulated a clear policy
disagreement with the DET” and treated the DET-based Guidelines calculation as
mandatory. Appellant’s Br. at 47.

          In Kimbrough, the Supreme Court held that a district court may impose a below-
Guidelines sentence for crack cocaine offenses based on its policy disagreement with the


1
    Under the DET, 22.4 grams of powder cocaine is equivalent to 4,480 grams of marijuana or 4.48 kilograms.

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disparity between the Guidelines’ treatment of crack and powder cocaine. Kimbrough, 552
U.S. at 91.2 Consistent with Kimbrough, this Court has “allowed district courts to ‘impose a
lighter sentence’ if ‘the disparity between cocaine base and cocaine powder offenses in the
United States Sentencing Guidelines might result in a sentence greater than necessary.’”
United States v. Davis, 561 F. App’x 50, 55 (2d Cir. 2014) (citation omitted). While this Court
has required “that the record unambiguously demonstrate that the District Court was aware
of its discretion to consider the potentially undue disparity, we have not insisted that district
courts reduce sentences on that basis and have specifically disavowed imposing formulaic
requirements on or requiring robotic incantations of district courts in administering this
duty.” Id. (internal quotation marks and alterations omitted).

        We conclude that Covington’s claim with regard to the procedural reasonableness of
his sentence is without merit. Although the District Court lamented the opacity of the crack-
to-marijuana conversion table, at no point did it express any desire to diverge from the
Guidelines’ comparative treatment of crack and powder cocaine. Moreover, the District
Court indicated at sentencing that it did not feel obligated to follow the Guidelines. App’x at
515-16. There is “nothing in the record that suggests that the district court was unaware of
Kimbrough’s significance as it relates to cocaine base offenses.” United States v. Moody, 381 F.
App’x 113, 116 (2d Cir. 2010). The sentencing court “is presumed to know the state of
sentencing law,” and “a district court’s silence on the issue of the cocaine powder/crack
cocaine disparity is not indicative of its approach to sentencing.” Id.

        We see no suggestion in the record that Covington made any Kimbrough or policy-
dispute arguments to the District Court. We also note that, when the District Court
announced the sentence and asked if either side knew “any legal reason why the sentence
should not be imposed as stated,” the parties said “no.” App’x at 516-17. Accordingly, we
reject Covington’s challenge to his sentence.

                                                   * * *


2
 As the government’s brief points out, it is not obvious that the District Court, in discussing the DET
numbers, was even expressing a policy disagreement with the crack/powder cocaine disparity in the
Guidelines.

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      We have considered Covington’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




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