    14-4746-cr
    United States v. Hester


                         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 ASUMMARY 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 9th day of November, two thousand sixteen.

    PRESENT:
                    JOHN M. WALKER, JR.,
                    PETER W. HALL,
                    DENNY CHIN,
                               Circuit Judges.

    _____________________________________

    UNITED STATES OF AMERICA,

                          Appellee,

                    v.                                                         No. 14-4746-cr

    ERNEST HESTER, AKA SEALED DEFENDANT #9,
    AKA EB,


                          Defendant-Appellant.*1

    _____________________________________

    For Appellee:                                        PAUL D. SILVER, Assistant United States
                                                         Attorney (Carla Freedman, Assistant United

    * The Clerk of Court is requested to amend the official caption in this case to conform to the
    listing of the parties above.
                                                     States Attorney, Of Counsel) for Richard S.
                                                     Hartunian, United States Attorney for the
                                                     Northern District of New York, Albany,
                                                     New York.

For Defendant-Appellant:                             ALBERT J. MILLUS, JR., Hinman, Howard &
                                                     Kattell, LLP, Binghamton, New York.

          Appeal from a judgment of the United States District Court for the Northern District of

New York (Mordue, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Defendant-Appellant Ernest Hester pleaded guilty to conspiring to participate in the

affairs of a racketeering enterprise, in violation of 18 U.S.C. § 1962(d). He was sentenced

principally to 135 months’ imprisonment. On appeal, Hester argues that the district court (1)

clearly erred in applying a Sentencing Guidelines enhancement based on its finding that Hester

stabbed a rival gang member; (2) failed to consider the sentencing disparity between his sentence

and those of his codefendants; and (3) erred in assigning three criminal history points to a New

York state conviction for which Hester served only eight months of an eighteen-month sentence.

We assume the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

          A. Guidelines Enhancement

          “Facts in support of a sentencing calculation need only be proven by a preponderance of

the evidence, and the district court’s findings will not be disturbed unless clearly erroneous.”

United States v. Halloran, 821 F.3d 321, 341 (2d Cir. 2016) (quoting United States v. Beverly, 5

F.3d 633, 642 (2d Cir. 1993)). “When reviewing for clear error, we may reverse only if we are

‘left with the definite and firm conviction that a mistake has been committed.’” United States v.
Bershchansky, 788 F.3d 102, 110 (2d Cir. 2015) (quoting United States v. Andino, 768 F.3d 94,

98 (2d Cir. 2014)). “Where there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” Id. (quoting United States v. Murphy, 703

F.3d 182, 188 (2d Cir. 2012)).

       Based on Hester’s involvement in the stabbing of a rival gang member, the district court

applied U.S.S.G. § 2A2.2(b)(2)(B), which provides a four-level enhancement for committing an

aggravated assault with a dangerous weapon. This was not error. As the district observed, the

surveillance videos and testimony allowed for differing views on whether Hester stabbed Jimmie

Hudson, a rival gang member. For example, a police detective was firm in his belief that the

surveillance videos showed that Hester was holding a knife during the altercation, while Hester

and his expert witness claimed that it was a cell phone. The district court acknowledged that it

was not clear from the surveillance videos whether Hester was holding a knife or a cell phone.

The court, however, observed that “the video show[ed] [Hester] using his right hand, in which he

held the object at issue, to strike or shove Hudson’s left arm and lower back, two of the areas

where he was stabbed,” and that Hester “pulled Hudson to the back of the restaurant where he

forcibly held Hudson back with his left arm, and using a quick stabbing motion with his right

arm, struck Hudson on the left arm.” A. 173. The court reasonably deduced from this evidence

that Hester stabbed Mr. Hudson. See Bershchansky, 788 F.3d at 110. While a fellow gang

member and Hester’s mother offered testimony that suggested Hester did not stab Hudson, the

district court was free to weigh the credibility of these witnesses, and we “pay special deference

to the district court’s factual determinations going to witness credibility.” Id. at 108 (citation and

internal quotation marks omitted). The court did not err in applying the four-level enhancement

for aggravated assault with a dangerous weapon set forth in U.S.S.G. § 2A2.2(b)(2)(B).
       B. Sentencing Disparities

       A district court’s sentencing decisions are reviewed for both substantive and procedural

reasonableness. United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007). “Reasonableness

review is similar to review for abuse of discretion and may require reversal when the district

court’s decision ‘cannot be located within the range of permissible decisions’ or is based on a

legal error or clearly erroneous factual finding.” Villafuerte, 502 F.3d at 206 (quoting United

States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007)).

       “18 U.S.C. § 3553(a)(6) requires that a sentencing court consider ‘the need to avoid

unwarranted sentence disparities among defendants with similar records who have been found

guilty of similar conduct,’ not that it consider the disparities between co-defendants.” United

States v. Stevenson, 834 F.3d 80, 84 (2d Cir. 2016) (emphasis added) (quoting 18 U.S.C.

§ 3553(a)(6)); see United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008) (“We have held that

section 3553(a)(6) requires a district court to consider nationwide sentence disparities, but does

not require a district court to consider disparities between co-defendants.”).2

       Hester observes that his codefendants all received between 57 and 97 months’

imprisonment, while he received 135 months’ imprisonment. From this Hester concludes that

“[t]he only reason to sentence [him] to a greater sentence than the highest received by [his

codefendants] would be to punish him for challenging” his enhancement for aggravated assault

with a dangerous weapon. As explained above, the court was permitted, but not required, to

consider the sentencing disparities between Hester and his codefendants. Second, although the

district court did not state on the record that it had considered those sentencing disparities, Hester



2
  We do not, however, as a general matter, take issue with a district court’s “consideration of
similarities and differences among co-defendants when imposing a sentence.” Frias, 521 F.3d at
236 n.8 (citation and internal quotation marks omitted).
invited the court both in his sentencing memoranda and at sentencing, to consider his

codefendants’ prison terms.     The district court stated, moreover, that it had reviewed “the

submissions by counsel.” A. 199. Nothing in the record suggests that the district court failed to

consider this argument or that the court in any way endeavored to punish Hester for litigating his

sentencing enhancement. See United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008)

(“[T]he law in this circuit is well established that, in the absence of record evidence suggesting

otherwise, we presume that a sentencing judge has faithfully discharged her duty to consider the

statutory factors.” (citation and internal quotation marks omitted)); cf. United States v. Schwartz,

535 F.2d 160, 165 (2d Cir. 1976) (“Adverse rulings, standing alone, do not establish judicial bias

or prejudice . . . nor create a reasonable question of judicial impartiality.” (internal citation

omitted)). We thus identify no procedural or substantive error with respect to the court’s

application of 18 U.S.C. § 3553(a)(6).

       C. Criminal History Points

       “We review the district court’s interpretation of the Guidelines de novo and its factual

findings for clear error.” United States v. McCrimon, 788 F.3d 75, 78 (2d Cir. 2015) (citation

and internal quotation marks omitted).         “[W]aiver is the intentional relinquishment or

abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (internal

quotation marks omitted). While a true waiver precludes appellate review, see id., where a

“party’s failure to [object] is simply a matter of oversight,” this Court reviews for plain error,

United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995).

       Hester argues that the district court erred in assigning three criminal history points to his

New York conviction for Criminal Possession of a Controlled Substance in the Third Degree.

Hester raised this argument in his sentencing memorandum but arguably waived or forfeited it by
agreeing at sentencing that his criminal history category had been correctly, but harshly, set at

level IV. However, we need not resolve whether Hester waived or forfeited this claim because

there was no error of any kind in the district court’s assignment of three criminal history points

to this conviction.

       In 2007, Hester was sentenced to 18 months’ imprisonment for his conviction in New

York for Criminal Possession of a Controlled Substance in the Third Degree. Hester was

released approximately eight months later after successful completion of a “shock incarceration

program” in New York, which allowed him “to be conditionally released.” N.Y. Corr. Law

§ 867(4) (emphasis added). Although Hester describes this early release as a “suspended portion

of the sentence” that “should not be counted” toward the computation of his criminal history

points, the Presentence Report (“PSR”) stated that the relevant New York certificate of

conviction documented that Hester was sentenced to 18 months’ imprisonment but made “no

mention of any portion of the sentence being suspended.” PSR Addendum 34. Hester does not

dispute this characterization, and he points to nothing in the record to show that his sentence was

suspended in whole or in part. Hester’s early release from the shock program therefore did not

affect the calculation of his criminal history category because “[i]n scoring a criminal history

category, ‘criminal history points are based on the sentence pronounced, not the length of time

actually served.’” United States v. Conca, 635 F.3d 55, 65 (2d Cir. 2011) (quoting U.S.S.G.

§ 4A1.2, Application Note 2).

       We have considered all of Hester’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk
