     13-3227(L)
     United States v. Mongo, Logan

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of October, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, Jr.,
 8                              Circuit Judges.*
 9
10       - - - - - - - - - - - - - - - - - - - -X
11       UNITED STATES OF AMERICA,
12                Appellee,
13
14                    -v.-                                               13-3227(L)
15                                                                       13-3260(CON)
16       EQUAN MONGO, CLYDE C. LOGAN
17                Defendants-Appellants.**
18       - - - - - - - - - - - - - - - - - - - -X

                *
              Judge Christopher F. Droney, originally assigned to
         this panel, recused himself. The remaining two members of
         the panel, who are in agreement, decide this appeal in
         accordance with Internal Operating Procedure E(b) of the
         Rules of the United States Court of Appeals for the Second
         Circuit. See 28 U.S.C. § 46(d); cf. United States v.
         Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
                **
               The Clerk of Court is directed to amend the caption as
         above.
                                                  1
 1
 2   FOR APPELLANTS:            SAMUEL CONROY BRESLIN, Hinckley
 3                              Allen & Snyder LLP, Albany, New
 4                              York.
 5
 6                              JAMES EDWARD GROSS, Albany, New
 7                              York.
 8
 9   FOR APPELLEE:              JOHN M. PELLETTIERI, for Leslie
10                              R. Caldwell, David A. O’Neil,
11                              United States Department of
12                              Justice, Washington, District of
13                              Columbia.
14
15                              Daniel Hanlon, for Richard S.
16                              Hartunian, United States
17                              Attorney for the Northern
18                              District of New York, Syracuse,
19                              New York.
20
21        Appeal from judgments of the United States District
22   Court for the Northern District of New York (McAvoy, J.).
23
24        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
25   AND DECREED that the judgments of the district court be
26   AFFIRMED.
27
28        Equan Mongo and Clyde C. Logan appeal from respective
29   judgments of the United States District Court for the
30   Northern District of New York (McAvoy, J.), sentencing Mongo
31   after a jury trial to 120 months imprisonment and sentencing
32   Logan after a guilty plea to 135 months imprisonment, each
33   for conspiracy to distribute and possess with intent to
34   distribute cocaine base (crack). On appeal, Mongo argues
35   that: (1) the district court erred in admitting in evidence
36   more than 200 grams of powder cocaine and the accompanying
37   testimony of a Drug Enforcement Administration (“DEA”)
38   chemist; and (2) the evidence at trial was insufficient to
39   support his conviction. Logan argues that he should be re-
40   sentenced because his decision to plead guilty was based on
41   the mistaken belief that the district court would not
42   consider him a career offender as defined by the U.S.
43   Sentencing Guidelines (“USSG”). We assume the parties’
44   familiarity with the underlying facts, the procedural
45   history, and the issues presented for review.
46


                                  2
 1   I.   Mongo’s Appeal
 2
 3        The jury found Mongo guilty of one count of conspiring
 4   to distribute and possess with intent to distribute more
 5   than 28 grams of cocaine base. Government witness Anton
 6   Boone testified that he had sold crack cocaine to Mongo in
 7   amounts of up to 50 grams in approximately seven
 8   transactions; government witness Davell Lee testified that
 9   he had made four or five crack cocaine sales to Mongo, with
10   each sale involving 7 to 50 grams. In an audio of phone
11   calls between Mongo and Boone, intercepted pursuant to a
12   Title III wiretap, the two negotiated sales of narcotics.
13   In the last intercept, recorded on November 13, 2011, Mongo
14   confirms: “that sounds like a plan man.” The government
15   further introduced in evidence more than 200 grams of powder
16   cocaine, which had been seized from Boone during his arrest
17   two days after that conversation; Boone testified he had
18   intended to “cook” this powder into crack cocaine. (A DEA
19   chemist described the properties of the seized powder
20   cocaine.)
21
22        Mongo contends that the district court erred by
23   admitting the powder cocaine and the DEA chemist’s
24   testimony, which he insists were irrelevant and unduly
25   prejudicial. We review a district court’s evidentiary
26   rulings “only for an abuse of discretion,” United States v.
27   Khalil, 214 F.3d 111, 122 (2d Cir. 2000), and even such an
28   abuse of discretion “does not warrant reversal if it is
29   harmless,” United States v. Rea, 958 F.2d 1206, 1220 (2d
30   Cir. 1922). The district court ruled, over Mongo’s
31   objections, that the powder cocaine and the DEA chemist’s
32   analysis of it were relevant and not unduly prejudicial
33   because: other evidence already admitted had demonstrated a
34   pattern in which Boone would buy powder cocaine in New York
35   City, bring it to the Schenectady area, cook it into crack
36   cocaine, and sell it to Mongo; and the jury could infer that
37   some of the cocaine seized from Boone’s car two days after
38   the November 13 phone call was intended for Mongo. The
39   district court did not abuse its discretion in reaching this
40   conclusion.
41
42        Mongo argues that the verdict was unsupported by
43   sufficient evidence of an agreement or an intent to
44   distribute. In considering such an argument, “the relevant
45   question is whether, after viewing the evidence in the light
46   most favorable to the prosecution, any rational trier of
47   fact could have found the essential elements of the crime

                                  3
 1   beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
 2   307, 319 (1979). The jury heard Boone and Lee testify to a
 3   pattern of crack cocaine sales to Mongo, with up to 50 grams
 4   of cocaine base sold each time. The jury also heard Mongo
 5   negotiating crack cocaine prices in intercepted phone calls,
 6   in one of which Mongo confirmed, “that sounds like a plan
 7   man.” Moreover, Boone and Lee testified that they never saw
 8   Mongo under the influence of crack cocaine himself, and Lee
 9   testified that in his experience purchasers of narcotics in
10   this quantity and frequency resold the drugs. The trial
11   evidence amply supports Mongo’s conviction.
12
13   II.   Logan’s Appeal
14
15        Pursuant to an agreement, Logan pled to one count of
16   conspiring to distribute and possess with intent to
17   distribute more than 28 grams of cocaine base. At the time
18   of the agreement, the government estimated that Logan’s
19   offense level would be 26 and his criminal history category
20   would be 4, corresponding to a Guidelines range under the
21   Sentencing Guidelines of 92 to 115 months imprisonment.
22   This estimate took into account Logan’s 2007 state court
23   felony conviction for possession of crack cocaine. The
24   Probation Office later discovered a second prior felony
25   conviction for possession of crack cocaine, from 2006. In
26   light of the two prior felony narcotics convictions, the
27   Presentence Investigation Report (“PSR”) found that Logan
28   was a career offender under USSG § 4B1.1, resulting in an
29   offense level of 34 and a criminal history category of 6.
30   Logan objected to the PSR’s finding that the two prior
31   felony convictions conferred on him career offender status.
32
33        At sentencing, the district court found that the PSR
34   had correctly calculated Logan’s career offender status,
35   offense level, and criminal history category. The district
36   court found that the advisory range was 262 to 327 months
37   imprisonment. It sentenced Logan to 135 months imprisonment
38   and eight years supervised release. On appeal, Logan
39   contends that he pled guilty on the mistaken belief that he
40   was not a career offender and that we should therefore
41   direct the district court to re-sentence him on remand as if
42   he were not a career offender.
43
44        We review sentences for reasonableness, United States
45   v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),
46   which “amounts to review for abuse of discretion,” United
47   States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en

                                  4
 1   banc). This concept applies both to “the sentence itself
 2   and to the procedures employed in arriving at the sentence.”
 3   United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.
 4   2008) (internal citation and quotation marks omitted).
 5   Underlying findings of fact are reviewed for clear error,
 6   see United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir.
 7   2012), and this standard applies to a district court’s
 8   determination that prior convictions are unrelated for
 9   purposes of career offender status, see United States v.
10   Brothers, 316 F.3d 120, 122-23 (2d Cir. 2003).
11
12        The thrust of Logan’s argument is that his plea
13   agreement was unfair because the government did not alert
14   him to his career offender status. This Court “interpret[s]
15   plea agreements according to principles of contract law
16   . . . look[ing] to the reasonable understanding of the
17   parties.” United States v. Rodgers, 101 F.3d 247, 253 (2d
18   Cir. 1996). Without suggesting that the government actually
19   knew the full extent of his criminal history at the time of
20   the plea agreement, Logan maintains that he was justified in
21   relying on the government’s estimate of his offense level
22   and criminal history category. The agreement in this case
23   is replete with disclaimers that the government’s estimate
24   of the offense level and criminal history category was not
25   binding and that it might change depending on the Probation
26   Office’s investigation. Logan’s reliance on the
27   government’s estimate was therefore not objectively
28   reasonable.1
29
30        Logan further challenges his career offender status by
31   contending that his prior felony convictions are not
32   separate from each other or from the instant conviction.
33   Prior convictions are separate from each other if the
34   offenses “were separated by an intervening arrest (i.e., the
35   defendant is arrested for the first offense prior to
36   committing the second offense),” or else are separate from
37   each other if they arose from different charging instruments
38   and resulted in two sentences imposed on different days.


         1
            We need not consider here whether the same
     conclusion would obtain if Logan lacked effective assistance
     of counsel.
                                  5
 1   USSG § 4A1.2(a)(2);   see id. § 4B1.2(c). A prior conviction
 2   is unrelated to the   instant conviction if the two were “not
 3   [] part of the same   course of conduct or common scheme or
 4   plan.” Id. § 1B1.3    cmt. 8.
 5
 6        Logan’s 2006 and 2007 felony convictions were separated
 7   by an intervening arrest, arose from different charging
 8   instruments, and resulted in different sentences imposed on
 9   different days. Moreover, neither was part of the same
10   course of conduct as Logan’s offense in the instant case, a
11   conspiracy which began in mid-2011 according to the
12   indictment. Cf. USSG § 1B1.3 cmt. 8 ex. 1 (describing
13   successive cocaine sales “to the same person, using the same
14   accomplices and modus operandi,” but separated by an
15   intervening arrest and prison sentence, as unrelated for
16   purposes of career offender status).
17
18        Finally, Logan relies on a disparity between his 135-
19   month sentence and the lesser sentences imposed on co-
20   defendants. However, “a disparity between non-similarly
21   situated co-defendants is not a valid basis for a claim of
22   error.” United States v. Fernandez, 443 F.3d 19, 28 (2d
23   Cir. 2006), abrogated on other grounds by Rita v. United
24   States, 551 U.S. 338 (2007). Logan does not argue that his
25   co-defendants are similarly situated to him in terms of
26   their criminal history, so he has shown no error in the
27   disparity between them.
28
29        For the foregoing reasons, and finding no merit in
30   Mongo and Logan’s other arguments, we hereby AFFIRM the
31   judgments of the district court.
32
33                                FOR THE COURT:
34                                CATHERINE O’HAGAN WOLFE, CLERK
35




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