09-0487-cr(L), 09-0538-cr(CON)
United States v. Benjamin

                                   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.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 7th day of September, two thousand and ten.

PRESENT:

          JON O. NEWMAN ,
          JOSÉ A. CABRANES,
          DENNY CHIN ,
                 Circuit Judges.

-------------------------------------------x

UNITED STATES OF AMERICA ,

                              Appellee,

          v.                                                                               Nos. 09-0487-cr(L),
                                                                                           09-0538-cr(CON)
NEAL BENJAMIN , DONALD BENJAMIN , also known as
Ducky,

                              Defendants-Appellants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR APPELLANTS:                                    JOHN J. LAVIN , Buffalo, New York, for Appellant Neal
                                                   Benjamin; VINCENT E. DOYLE III, Connors & Vilardo, LLP,
                                                   Buffalo, New York, for Appellant Donald Benjamin.

FOR APPELLEE:                                      STEPHAN J. BACZYNSKI, Assistant United States Attorney
                                                   (William J. Hochul, Jr., United States Attorney, on the brief),

                                                                 1
                                       Office of the United States Attorney, Western District of
                                       New York, Buffalo, New York.

        Appeals from a February 3, 2009 amended judgment of conviction (Donald Benjamin) and
a January 23, 2009 amended judgment of conviction (Neal Benjamin) of the United States District
Court for the Western District of New York (Richard J. Arcara, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of conviction be AFFIRMED.

        Following a jury trial, defendants-appellants Donald Benjamin and Neal Benjamin (together,
“defendants”) were convicted of several drug crimes. Donald Benjamin was convicted of one
count of conspiracy to distribute a controlled substance, see 21 U.S.C. §§ 841(a), 846, five counts of
possessing with intent to distribute cocaine base, see id. § 841(a)(1), and one count of using a person
under eighteen years of age to violate 21 U.S.C. § 841(a) and § 846, see id. § 861(a)(1). Neal
Benjamin was convicted of one count of conspiracy to distribute a controlled substance, see 21
U.S.C. §§ 841(a), 846, and one count of distributing cocaine base, see id. § 841(a)(1).

         Defendants were initially sentenced by the late Judge John T. Elfvin. He imposed an
aggregate term of thirty years’ imprisonment for Donald Benjamin and ten years’ imprisonment for
Neal Benjamin. Defendants brought appeals challenging their convictions and sentences, and the
government brought cross-appeals challenging the sentences. We affirmed defendants’ convictions
but vacated the sentences and remanded for resentencing on the ground that the District Court had
failed to give the government adequate notice of its intention to vary from the United States
Sentencing Guidelines. United States v. Evans, 352 F.3d 65, 72-73 (2d. Cir. 2003). In a summary
order filed that same day, we denied each of defendants’ challenges to their sentences, “find[ing] no
violation of Apprendi v. New Jersey, 530 U.S. 446 (2000), and no erroneous sentencing calculation
except to the extent discussed in our accompanying opinion.” United States v. Evans, 82 Fed. App’x
726, 728 (2d Cir. 2003)

          On remand, Judge Elfvin imposed the same sentences he had imposed in the initial
sentencing proceedings. The government appealed, and we again vacated the sentences. United
States v. Hirliman, 503 F.3d 212, 217 (2d Cir. 2007). We remanded the case “with instructions that it
be assigned to a new judge for resentencing.” Id.

       On the second remand, the case was reassigned to Judge Richard J. Arcara. Judge Arcara
sentenced Donald Benjamin principally to an aggregate term of imprisonment of forty years. He
sentenced Neal Benjamin principally to thirty years’ imprisonment.

         Defendants then brought these appeals asserting various challenges only to the sentences
imposed by Judge Arcara. We assume the parties’ familiarity with the underlying facts and the
issues raised on appeal.
                                                   2
I.      Purported Lack of a Sufficient Jury Finding as to Drug Type on Count One

        Defendants both argue (each in somewhat different terms) that their sentences on Count
One of the indictment (conspiracy to distribute cocaine, cocaine base, and marijuana) should be
vacated on the ground that the jury made an insufficient finding as to the type of drugs involved in
the conspiracy. Defendants claim that because of the insufficiency of the jury’s finding, the Court’s
imposition of sentences under 21 U.S.C. § 841(b)(1)(C)1 violated Apprendi v. New Jersey, 530 U.S. 466
(2000). Although defendants’ briefs are far from clear on this point, it appears that defendants
contend that the Court should have sentenced them not under § 841(b)(1)(C) but under
§ 841(b)(1)(D), which provides a lower statutory maximum “[i]n the case of” a conspiracy involving
“less than 50 kilgrams of marihuana.”2

       We denied that claim in our previous order. See Evans, 82 Fed. App’x at 728 (remanding for
resentencing but concluding that there had been “no violation of Apprendi . . . and no erroneous
sentencing calculation”). In any event, the claim is meritless.3

        1
          Neal Benjamin was sentenced to 20 years’ imprisonment on Count One. See Neal
Benjamin App. 63 (Amended Judgment 2). That sentence was imposed under a part of 21 U.S.C.
§ 841(b)(1)(C) that provides a maximum term of imprisonment of 20 years where, as with Neal
Benjamin, the defendant lacks a “prior conviction for a felony drug offense” and no “serious bodily
injury result[ed] from the use” of the drugs in question. 21 U.S.C. § 841(b)(1)(C); see Neal Benjamin
Presentence Report 16.

        Donald Benjamin was sentenced to 30 years’ imprisonment on Count One. See Donald
Benjamin App. 263 (Amended Judgment 2). That sentence was imposed under a part of 21 U.S.C.
§ 841(b)(1)(C) that provides a maximum term of imprisonment of 30 years where, as with Donald
Benjamin, a defendant does have a “prior conviction for a felony drug offense” and no “serious
bodily injury result[ed] from the use” of the drugs in question. 21 U.S.C. § 841(b)(1)(C); see Donald
Benjamin Presentence Report 22. (As discussed in detail below, Donald Benjamin argues that the
District Court erred in finding that he had a prior felony drug conviction.)
        2
          Both defendants were sentenced on Count One under 21 U.S.C. § 841(b)(1)(C). See Neal
Benjamin Presentence Report 16; Donald Benjamin Presentence Report 22. That subsection is a
“default” provision that applies where a defendant commits a drug crime as defined in § 841(a) and
the crime in question involved “a controlled substance in schedule I or II.” If a defendant commits
a drug crime that involves one among certain specified large quantities of drugs, the default
sentencing range in § 841(b)(1)(C) is preempted by subsections (A) and (B), which provide higher
sentencing ranges. If a defendant commits a drug crime that involves a certain small quantity of
marijuana—specifically, “less than 50 kilograms of marijuana”—the default sentencing range in
§ 841(b)(1)(C) is preempted by subsection (D), which provides lower sentencing ranges. See generally
id. § 841(b)(1)(C) (applying “[i]n the case of a controlled substance in schedule I or II . . . except as
provided in subparagraphs (A), (B), and (D)”).
        3
          In its brief, the government responds to defendants’ Apprendi claims solely on the ground
that the claims had already been denied in this Court’s previous order. It would have been far
                                                  3
        This is not a case like United States v. Zillgitt, where, “in light of . . . ambiguity resulting from
[a] general verdict,” we were required to “assume that the conviction [was] for conspiracy to
possess the controlled substance that carries the most lenient statutorily prescribed sentence.” 286
F.3d 128, 135-36 (2d Cir. 2002). Rather, the jury in this case returned a special verdict with respect
to Count One, indicating on a verdict sheet that it found each defendant “[g]uilty” on Count One
and that, for each defendant, its “verdict [was] based” on all of the three drugs alleged: “cocaine
(powder),” “cocaine base (crack),” and “marijuana.” Donald Benjamin App. 115 (Verdict Sheet 1).

        The verdict sheet, therefore, unambiguously shows that the jury found defendants guilty of
a drug conspiracy involving not just marijuana, but also cocaine powder and “crack” cocaine.
Accordingly, defendants should not have been punished under 21 U.S.C. § 841(b)(1)(D), for that
statute applies only “[i]n the case of less than 50 kilgrams of marihuana” (emphasis added). Rather,
defendants should have been punished—as they were in fact punished—under 21 U.S.C.
§ 841(b)(1)(C), the “default” statute for a drug conspiracy involving “a controlled substance in
schedule I or II.” See note 2, ante.

        Donald Benjamin argues that the jury’s finding on the verdict sheet should be rejected
because the District Court “was obliged to charge the jury that the type of drug was an element of
the offense that had to be proven beyond a reasonable doubt.” We agree that the type of drug was
an element that had to be proven beyond a reasonable doubt, but we reject Donald Benjamin’s
contention that the jury was misinformed about that standard of proof.

       On several occasions the District Court instructed the jury that it was permitted to convict a
defendant only if found that each element of a crime had been proved beyond a reasonable doubt.
The Court stated generally:

            A defendant never has the burden to prove his or her lack of guilt, and in
            order to sustain its burden the prosecution must produce proof which is
            sufficiently strong to convince each of you of a particular defendant’s guilt
            beyond a reasonable doubt. The requirement that the prosecution prove
            guilt beyond a reasonable doubt extends to every essential element of each
            crime . . . .

Donald Benjamin App. 63 (Trial Tr. 5169). In explaining the elements of Count One, the drug
conspiracy charge, the Court then repeatedly emphasized the beyond-a-reasonable-doubt standard.
For example, the Court told the jury that, in order for it to reach a guilty verdict on Count One,
“[a] defendant must be shown beyond a reasonable doubt to have participated [in the conspiracy]


preferable for the government to have argued, in the alternative, the merits of the defendants’
claims—that is, that the Apprendi claims were properly denied in this Court’s previous order.
                                                  4
with knowledge of at least some of the purposes or objectives of the conspiracy, and with the
intention of aiding in the accomplishment of those or some of the unlawful acts.” Id. at 83 (Trial
Tr. 5189).

        Therefore, the jury understood that, in order to convict Neal Benjamin on Count One, it
had to find, beyond a reasonable doubt, that the government had proved each element of a drug
conspiracy involving either marijuana, cocaine powder, or “crack” cocaine. Once the jury found
Donald Benjamin guilty on Count One, the drug type question on the verdict sheet merely asked
the jury to specify which drug the jury had found, beyond a reasonable doubt, that Donald Benjamin
had conspired to posses or distribute.

        The jury made a sufficient finding as to drug type, therefore, and the District Court did not
violate Apprendi when it sentenced defendants for Count One under 21 U.S.C. § 841(b)(1)(C). Any
doubt on this issue is eliminated by the jury’s verdict of guilty on the substantive counts involving
cocaine base, as to which no issue is raised on appeal.

II.     Donald Benjamin’s Sentence on Count 24

        Donald Benjamin was convicted on Count 24 of violating of 21 U.S.C. § 861. That section
makes it a crime, among other things, to “use” a “person under eighteen years of age to violate any
provision of” Title 21 of the United States Code. 21 U.S.C. § 861(a)(1). Donald Benjamin was
punished under subsection (b) of section 861,4 which permits a sentence of “twice the maximum
punishment otherwise authorized,” id. § 861(b). The District Court imposed on Donald Benjamin a
sentence of forty years’ imprisonment on Count 24.

       Donald Benjamin argues on appeal that his sentence on Count 24 violated his Sixth
Amendment rights as articulated by United States v. Booker, 543 U.S. 220 (2005). He claims that it
was impossible for the District Court, without violating the Sixth Amendment, to have determined
what punishment was “otherwise authorized” within the meaning of § 861(b), because “the specific
underlying violation here was not pled in the indictment, nor found specifically by the jury.”

       We appear to have rejected that claim in our previous order. See Evans, 82 Fed. App’x at
728. In any event, the claim is meritless.5 Count 24 of the indictment alleges that Donald
Benjamin, among other things, “use[d]” a minor in order to engage in a drug conspiracy in violation


        4
         The amended judgment incorrectly identifies the conviction on count 24 as a violation of
21 U.S.C. § 861(c), and should be corrected to reflect a violation of 21 U.S.C. § 861(b).
        5
         It is not clear that the government briefed this claim at all. Insofar as the government
intended to rely solely on our previous order (and not, in the alternative, to brief the merits of the
claim), we once again express our frustration. See note 3, ante.
                                                   5
of 21 U.S.C. § 841(a) and § 846. The jury found Donald Benjamin guilty of participating in that
drug conspiracy, and as discussed in above, see Part I, ante, Donald Benjamin’s sentencing range for
the conspiracy count (Count One) was properly calculated as zero to thirty years’ imprisonment.
That, therefore, was the sentencing range “otherwise authorized” within the meaning of 21 U.S.C.
§ 861(b).

        As a result, under § 861(b), Donald Benjamin’s sentencing range was one year6 to sixty
years’ imprisonment. His sentence of forty years’ imprisonment fell within that range and thus did
not violate Booker.

III.   Other B o o ke r Claims

       Both defendants makes various other claims that the District Court violated Booker in
applying certain sentencing enhancements in calculating defendants’ advisory sentencing range
under the United States Sentencing Guidelines. Each of defendants’ claims is meritless; the District
Court did not violate Booker.

IV.    The Revisiting of the Issue of Donald Benjamin’s Prior Drug Felony

       At Donald Benjamin’s initial sentencing proceedings, Judge Elfvin declined to sentence
Donald Benjamin as a convicted drug felon under 21 U.S.C. § 851. After we vacated the initial
sentences and remanded for resentencing, Judge Arcara revisited that issue and sentenced Donald
Benjamin as a prior drug felon.

         On appeal, Donald Benjamin argues that Judge Arcara was prohibited from revisiting the
prior-drug-felony issue. We disagree. After we vacated Donald Benjamin’s sentence for a second
time, we remanded the case “with instructions that it be assigned to a new judge for resentencing.”
Hirliman, 503 F.3d at 217. Our remand was not limited to a specific purpose, as it was, for example,
in United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002). Rather, our remand was for
“resentencing” simpliciter. Thus Judge Arcara was entitled to conduct a complete re-sentencing,
revisiting any issue on which we had not already ruled, including the prior-drug-felony issue. Nor
was he barred from reconsidering the prior-drug-felony issue by the law of the case doctrine, as
Donald Benjamin claims.




       6
        See 21 U.S.C. § 861(b) (“Except to the extent a greater minimum sentence is otherwise
provided, a term of imprisonment under this subsection shall not be less than one year.”).
                                                6
V.      Purported Disparity

         Neal Benjamin challenges his sentence on the ground that there was an unwarranted
disparity between the sentence he received and the sentence Donald Benjamin received. We reject
that claim; there was no unwarranted disparity.

VI.     Consideration of the Section 3553(a) Factors

         Neal Benjamin asserts that the District Court failed to consider each of the factors set forth
in 18 U.S.C. § 3553(a). There is a “strong presumption that the District Court faithfully performed
its statutory obligation to consider the § 3553(a) factors.” United States v. Fernandez, 443 F.3d 19, 33
(2d Cir. 2006); see also United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (“As long as the judge
is aware of both the statutory requirements and the sentencing range or ranges that are arguably
applicable, and nothing in the record indicates misunderstanding about such materials or
misperception about their relevance, we will accept that the requisite consideration has occurred.”).
Having reviewed the record, we conclude that the District Court did, in fact, consider the required
statutory factors.

VII.    Substantive Reasonableness

       Both defendants argue that their sentences were substantively unreasonable. Neither
sentence, however, is “manifestly unjust,” “shockingly high,” or “otherwise unsupportable as a
matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). We therefore conclude that
each sentence is substantively reasonable.

                                           CONCLUSION

        We have considered each of defendants’ arguments and have determined that they are
meritless. The judgments of conviction are therefore AFFIRMED.


                                                FOR THE COURT,

                                                Catherine O’Hagan Wolfe, Clerk of Court




                                                    7
