     17-4159-cr
     USA v. Estevez




 1                        UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                            ------

 4                                   August Term, 2018

 5                     (Argued: May 2, 2019        Decided: June 5, 2020)

 6                                  Docket No. 17-4159-cr

 7   ____________________________________________________

 8   UNITED STATES OF AMERICA,

 9                                            Appellee,

10                                   - v. -

11   RANDY ESTEVEZ,

12                                    Defendant-Appellant.*
13   ____________________________________________________

14   Before: KEARSE, WESLEY, and CHIN, Circuit Judges.

15



     *    The Clerk of Court is directed to amend the official caption to conform with
          the above.
 1               Appeal from a judgment of the United States District Court for the

 2   Southern District of New York, Colleen McMahon, Chief Judge, convicting defendant,

 3   a previously convicted felon, of being in possession of a firearm from on or about

 4   February 21, 2016, through on or about February 26, 2016, in violation of 18 U.S.C.

 5   § 922(g)(1), and sentencing him principally to 100 months' imprisonment. On appeal,

 6   defendant contends principally that the district court erred in giving the jury a

 7   general unanimity charge rather than, as he requested, instructing the jury that it

 8   must unanimously agree on the particular date or dates on which he possessed the

 9   firearm within the period alleged. He also asserts substantive and procedural

10   challenges to his sentence. Finding no basis for reversal, we affirm.

11               Affirmed.

12                      AMANDA KRAMER, Assistant United States Attorney,
13                      New York, New York (Geoffrey S. Berman, United States
14                      Attorney for the Southern District of New York, Kiersten A.
15                      Fletcher, Sarah K. Eddy, Assistant United States Attorneys,
16                      New York, New York, on the brief), for Appellee.

17                      BRUCE R. BRYAN, Syracuse, New York, for Defendant-
18                      Appellant.




                                               2
 1   KEARSE, Circuit Judge:

 2               Defendant Randy Estevez, who had been convicted of a felony in 2015,

 3   appeals from a judgment entered in the United States District Court for the Southern

 4   District of New York convicting him, following a jury trial before Colleen McMahon,

 5   Chief Judge, of being in possession of a firearm from on or about February 21, 2016,

 6   through on or about February 26, 2016, in violation of 18 U.S.C. § 922(g)(1), and

 7   sentencing him principally to 100 months' imprisonment, to be followed by a three-

 8   year term of supervised release. On appeal, Estevez principally challenges his

 9   conviction, contending that the district court erred in giving the jury a general

10   instruction that its verdict must be unanimous, rather than, as he requested,

11   instructing that the jury must agree unanimously on a particular date or dates on

12   which he possessed the firearm in the six-day period of possession alleged in the

13   indictment. He also challenges his sentence, contending that there was insufficient

14   evidence to warrant an enhancement for possessing the firearm in connection with

15   another felony offense, and that his 100-month prison term is substantively

16   unreasonable. Finding no merit in Estevez's contentions, we affirm.




                                              3
 1                                     I. BACKGROUND




 2                The single-count indictment against Estevez alleged, in pertinent part,

 3   that in violation of 18 U.S.C. § 922(g)(1),

 4                      [f]rom at least on or about February 21, 2016 through on or about
 5                February 26, 2016, . . . RANDY ESTEVEZ, the defendant, after
 6                having been convicted in a court of a crime punishable by
 7                imprisonment for a term exceeding one year, knowingly did
 8                possess . . . a firearm . . . , to wit, a loaded 9 millimeter Stallard
 9                Arms semiautomatic pistol . . . .

10   (Superseding Indictment ("Indictment") ¶ 1 (emphasis added).) The case grew out of

11   shootings in the Bronx, New York, on those two dates.




12   A. The Evidence at Trial

13                The government's evidence at trial as to the events of February 2016 was

14   presented principally through the testimony of law enforcement personnel and

15   cooperating witness Brandon Curley, together with security camera videos, DNA and

16   ballistics evidence, cellphone records, and cell-site data. The record, taken in the light

17   most favorable to the government, shows the following.




                                                   4
 1          1. The February 21 Shooting

 2                 In the early evening of February 21, New York City Police Department

 3   ("NYPD") officers responded to reports of shots fired in the vicinity of an IHOP

 4   restaurant located at 232nd Street and Broadway (the "IHOP"). They found no one

 5   injured, but they recovered a bullet fragment and two shell casings outside the

 6   restaurant. Security camera footage of the IHOP parking lot shortly before 6:00 p.m.

 7   showed a "muzzle flash" of gunfire and showed the suspected shooter running from

 8   the scene. (Trial Transcript ("Tr.") at 68.) However, as the shooter's face was not

 9   shown clearly, NYPD was unable to identify him using facial recognition software.

10   (See id. at 72-73.)




11          2. The February 26 Shooting

12                 a. The Testimony of Curley

13                 Brandon Curley testified that Estevez was a friend he had known for

14   nearly a decade (see Tr. 231, 234), with whom he would hang out and "[s]moke weed,"

15   i.e., marijuana (id. at 236; see id. at 243). In January of 2016, Estevez had suggested to

16   Curley that they rob a drug dealer known as "AB"; the plan had been that Estevez

17   would call AB and arrange a meeting to purchase marijuana, and that Curley--with

                                                 5
 1   a gun provided by Estevez--would interrupt the sale and rob AB, but "make it look

 2   like" he was also robbing Estevez. (Id. at 243-45.) However, Curley and Estevez

 3   abandoned the plan when one of Curley's friends, a seller for AB, learned of the

 4   scheme and persuaded them not to interfere with his source of income. (See id.

 5   at 244-45.)

 6                 Curley testified that on February 26 at approximately 1:00 a.m., while he

 7   was with a group of friends outside a building at 3340 Bailey Avenue (the "3340

 8   Building" or "Building"), he received a call from Estevez, who proposed that the two

 9   of them rob a neighborhood marijuana dealer called "Sharkey." (Id. at 262-64.) Curley

10   purported to agree, saying that Estevez should "hurry up and come now" to meet him

11   in front of the Building, and that Estevez did not need to bring a gun because they

12   could just beat Sharkey up. (Id. at 262-64.)

13                 Despite that conversation, Curley, having been told that Estevez "always

14   has a gun on him," expected that Estevez would bring a gun. (Tr. 263-64.) Curley also

15   testified, however, that he never actually intended to help Estevez rob Sharkey;

16   instead, he planned to take Estevez's gun if one was brought, and then Curley and a

17   friend would beat up and rob Estevez. (See id. at 266.)




                                                6
 1                 Estevez arrived minutes later, and Curley, learning that Estevez was in

 2   fact armed, asked to see the "grip"--local slang for "gun" (id. at 269; see id. at 345).

 3   Estevez passed the gun to Curley and then reached over and undid the safety device

 4   that would prevent the gun from firing. (See, e.g., id. at 272.) Seizing the opportunity,

 5   Curley pointed the gun at Estevez and demanded that he take off his coat; Estevez

 6   instead lunged at Curley and the two began grappling over the gun. (See id.

 7   at 272-73.) In the ensuing struggle, two shots were fired, one of them striking Estevez

 8   near the hip. Estevez eventually gained control of the gun, and Curley fled.




 9          b. Other Evidence About February 26 and February 21

10                 The scuffle between Curley and Estevez prompted a 911 call reporting

11   that shooting had occurred near the 3340 Building. NYPD officers quickly arrived;

12   they sought information from the wounded Estevez, who responded to a few of their

13   questions but not others. Estevez was taken to a hospital and questioned further; his

14   outer clothing was taken by the police as evidence. Meanwhile, back at the 3340

15   Building, officers found a black firearm--a Stallard Arms nine-millimeter

16   semiautomatic pistol (the "Firearm")--under a white van parked near the Building.

17   (See Tr. 62, 97-98, 103.)

                                                7
 1                Later that morning, an NYPD detective, being informed of the 911 call

 2   and the gun found under the van, went to the 3340 Building to view its security

 3   camera videos for the period shortly before the recorded time of the 911 call. On the

 4   Building videos, he saw, inter alia, two people engaging in a struggle; thereafter he

 5   saw a person (whom he later identified as Estevez) holding a gun in his hands, and

 6   then saw him walk toward the white van, crouch, and appear to throw an object

 7   under the van. (See id. at 127-28, 134-36, 149.)

 8                The detective proceeded to view video from security cameras at a nearby

 9   deli or bodega. One video showed the man who had just crouched by the white van,

10   walk in front of the deli. A few minutes later, the detective saw an NYPD anticrime

11   unit arriving at the Building, and he saw the man who had thrown the object under

12   the white van approach the crime squad officers. (See id. at 137-38.)

13                After viewing the deli's videos, the detective returned to the precinct and

14   performed some computer checks. (See Tr. 153.) As a result of his investigation, the

15   detective, who had not known or ever seen Estevez, learned what Estevez looked like.

16   (See id. at 162.) He "conclude[d]" that it was "Randy Estevez" who had "approached

17   the white van and put what appeared to be an object underneath that white van." (Id.

18   at 150.)

                                                8
 1                Estevez was arrested later that day on New York State charges of

 2   criminal possession of a gun. He was subsequently indicted on the present federal

 3   felon-in-possession charge.

 4                Forensic testing revealed the presence of Estevez's DNA on the Firearm's

 5   trigger guard. Ballistics analysis determined that the two discharged shell casings

 6   recovered from the scene of the February 21 shooting at the IHOP had been fired from

 7   the Firearm. The government also introduced evidence, based on cellphone records

 8   and cell-site location data, that at the times of the February 21 and 26 shootings,

 9   Estevez's cellphone had been near the locations of those shootings.




10         3. Estevez Telephone Conversations During Pretrial Detention

11                The government also introduced in evidence audio recordings of

12   telephone calls made by Estevez from jail in the days after his arrest, and it provided

13   transcriptions as aids (see, e.g., Government Exhibit ("GX") 70-T, with "RE" referring

14   to Randy Estevez, "UM" referring to an unidentified male speaker, and bracketed

15   material denoting the transcriber's notes). During a recorded conversation on

16   February 28, Estevez said he believed he would avoid being charged--that it was




                                               9
 1   "looking like a piece of cake, like, they don't got nothing on me" (GX 70-T at 3)--but

 2   discussed the incident in part as follows:

 3                       RE: . . . I had the grip, then he was like "let me see that,
 4                nigga." And tried to snatch shit, that's how we started tussling with
 5                the shit . . . .

 6                       UM: What, what, what I'm saying, you don't think they gon'
 7                run a ballistic, check on that thing?

 8                        RE: Aw, now the police?

 9                        UM: Yeah.

10                        RE: I'm saying this shit, look like I'm beating this shit, bro.

11                        UM: Well, they got ya handprints on it.

12   (Id. at 2 (emphases added); see, e.g., Tr. 269, 345 (in that neighborhood, "grip" was

13   slang for "gun").)

14                In a March 1 call, there was more discussion of the gun. Estevez said:

15                        RE: They could've found the gun . . . they could've found the
16                shit under the van and just put two and two together and said I put it
17                there . . . .

18                        ....

19                       UM: . . . what else, what else. . . . did they mention anything
20                about that Broadway shit too?

21                        [Voice says: you have one minute left]

                                                 10
 1                       RE: No, no, no.

 2                       UM: That's good.

 3   (GX 72-T at 3 (emphases added).) The government argued in summation that "that

 4   Broadway shit" was a reference to the February 21 shooting at the IHOP on

 5   Broadway, and that the conversations evinced both concern that Estevez had been

 6   linked to that shooting and relief that there had been no ballistics comparison (see

 7   Tr. 579; see also id. at 593 (reminding the jury of the ballistics evidence that the shots

 8   on February 21 at the IHOP and those on February 26 near the 3340 Building were

 9   fired from the same gun).




10         4. The Defense

11                Estevez did not testify or present any evidence, although he argued as

12   an affirmative defense that his possession of the Firearm on February 26 had been

13   fleeting and necessary, as a response to an attack launched on him by Curley.




14   B. Verdict and Sentence

15                The jury, given a general instruction that it must be unanimous in its

16   verdict (see Part II.A. below), found Estevez guilty on the sole count alleged in the

                                                11
 1   Indictment. As discussed in Part II.B. below, he was sentenced principally to 100

 2   months' imprisonment, to be followed by three years of supervised release.




 3                                       II. DISCUSSION




 4                On appeal, Estevez contends principally that the district court erred in

 5   denying his request for a particularized, rather than a general, unanimity instruction,

 6   and he challenges his sentence as procedurally and substantively unreasonable. We

 7   find no merit in his contentions.




 8   A. The Unanimity Instruction

 9                Estevez asked the trial court to instruct the jury that in order to find him

10   guilty, it must agree unanimously that he possessed the Firearm on a particular date.

11   Insisting that all jurors needed to agree either that he possessed the Firearm on

12   February 21 or that he possessed it on February 26 (or that he possessed it on both

13   dates), Estevez proposed a charge that included the following language:

14                       The sole count in this indictment charges that the defendant
15                committed the crime he is charged with on two different dates, February
16                21, 2016 and February 26, 2016, and at two different locations.


                                                12
 1                      To find the defendant guilty, you must agree unanimously on
 2                which particular date and location the defendant possessed the
 3                firearm as a previously convicted felon.

 4                      If some of you were to find that the government has proved
 5                beyond a reasonable doubt that the defendant possessed the
 6                firearm as described on February 21, 2016, and the rest of you
 7                were to find that the government has proved beyond a reasonable
 8                doubt that the defendant possessed the firearm as previously
 9                described on February 26, 2016, then there would be no
10                unanimous agreement on whether the defendant is guilty of the
11                one count in the indictment.

12   (Letter from Richard W. Barton, Esq., to Judge McMahon dated February 24, 2017, at 3

13   (emphases added).) Estevez proposed that the jury be given a verdict sheet on which

14   it would be required to specify which date or dates, and which location or locations,

15   the jurors had agreed on unanimously.

16                The court denied this request and gave the jury the following general

17   unanimity instruction:

18                       The verdict must represent the considered judgment of each
19                of the twelve of you. In order to return a verdict, all twelve of you
20                have to agree. You have to be unanimous. We do not have nine-
21                to-three verdicts in criminal cases. It's twelve to nothing.

22   (Tr. 668.)

23                Estevez contends that he is entitled to a new trial on the ground that the

24   Indictment charged him with two crimes in its single count and hence was


                                               13
 1   duplicitous, see generally United States v. Sturdivant, 244 F.3d 71, 75 & n.3 (2d Cir. 2001)

 2   (a "duplicitous" complaint, i.e., one alleging two or more separate crimes in a single

 3   count, potentially prejudices the defendant by creating uncertainty as to which of the

 4   charged crimes the jury unanimously found proven). Estevez contends that the court

 5   erred in declining to instruct the jury that it was "required to make special findings"

 6   "unanimous[ly] on the date and location of the alleged possession by Estevez of a

 7   firearm." (Estevez brief on appeal at 19, 18.) We disagree.




 8          1. Appellate Review of Jury Instructions

 9                 "The propriety of a jury instruction is a question of law that we review

10   de novo. . . . A jury instruction is erroneous if it misleads the jury as to the correct legal

11   standard or does not adequately inform the jury on the law." United States v.

12   Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) ("Wilkerson") (internal quotation marks

13   omitted); see, e.g., United States v. Ferguson, 676 F.3d 260, 275 (2d Cir. 2011)

14   ("Ferguson"); United States v. Applins, 637 F.3d 59, 72 (2d Cir. 2011) ("Applins").

15                 Similarly, "[t]he propriety of the district court's refusal to provide

16   requested jury instructions is a question of law that we review de novo." United States

17   v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) ("Gonzalez"); see United States v. McCarthy,

                                                  14
 1   271 F.3d 387, 396 (2d Cir. 2001). A defendant who requested an instruction the court

 2   declined to give "bears the burden of showing that the requested instruction

 3   accurately represented the law in every respect and that, viewing as a whole the

 4   charge actually given, he was prejudiced." Applins, 637 F.3d at 72 (internal quotation

 5   marks omitted); see, e.g., Wilkerson, 361 F.3d at 732; Gonzalez, 407 F.3d at 122; United

 6   States v. Dove, 916 F.2d 41, 45 (2d Cir. 1990).




 7         2. Instructions as to the Requirement of Jury Unanimity

 8                "Federal crimes are made up of factual elements, which are ordinarily

 9   listed in the statute that defines the crime," and a jury "cannot convict unless it

10   unanimously finds that the Government has proved each element." Richardson v.

11   United States, 526 U.S. 813, 817 (1999); see, e.g., Fed. R. Crim. P. 31(a); see generally

12   Ramos v. Louisiana, 140 S. Ct. 1390, 1396-97 (2020). However, the "jury need not always

13   decide unanimously which of several possible sets of underlying brute facts make up

14   a particular element." Richardson, 526 U.S. at 817.

15                As to how the jury should be instructed in this respect, "[w]e have, time

16   and again, held that a general charge regarding unanimity is ordinarily sufficient to

17   protect the defendant's right to a unanimous verdict." United States v. Trupin, 117 F.3d

                                                15
 1   678, 687 (2d Cir. 1997); see, e.g., United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975)

 2   (district court sufficiently informed the jurors "that they must be unanimous on

 3   whatever specifications they find to be the predicate of the guilty verdict"); United

 4   States v. Chandler, 98 F.3d 711, 717 (2d Cir. 1996) (district court, refusing a request to

 5   require the jurors to "agree on a particular theory of how the defendant violated the

 6   law," sufficiently "instruct[ed] the jury that it must return a unanimous verdict");

 7   United States v. Harris, 8 F.3d 943, 945 & n.2 (2d Cir. 1993) (district court sufficiently

 8   instructed that "'as always, your verdict must be unanimous. . . . [Y]our verdict must

 9   be unanimous on each count.'"); Ferguson, 676 F.3d at 280 (district court sufficiently

10   instructed that "'it is necessary that each juror agrees to [the verdict]'" (brackets in

11   Ferguson)). "'A general instruction on unanimity is sufficient to insure that such a

12   unanimous verdict is reached, except in cases where the complexity of the evidence

13   or other factors create a genuine danger of jury confusion.'" Id. (quoting United v.

14   Schiff, 801 F.2d 108, 114-15 (2d Cir. 1986)); see, e.g., United States v. Jackson, 479 F.3d 485,

15   491 (7th Cir. 2007) ("Johnny Jackson") ("a general unanimity instruction is sufficient in

16   the absence of a complex set of facts or a broad and ambiguous indictment that could

17   easily confuse a jury as to the need for unanimity").




                                                   16
 1         3. Elements of the Offense of Possession Under 922(g)(1)

 2                Section 922(g)(1) provides, in pertinent part, that it is "unlawful for any

 3   person . . . who has been convicted in any court of[] a crime punishable by

 4   imprisonment for a term exceeding one year"--i.e., a felony--to "possess in or affecting

 5   [interstate or foreign] commerce, any firearm." 18 U.S.C. § 922(g)(1). A sentence of

 6   up to 10 years' imprisonment is prescribed for any person who "knowingly violates"

 7   that section. Id. § 924(a)(2). The elements of the offense with which Estevez was

 8   charged are thus (1) his knowing prior conviction of a felony, (2) his knowing

 9   subsequent possession of a firearm, and (3) the firearm's nexus with commerce. As

10   Estevez and the government stipulated that he had been convicted of a felony in July

11   2015 and that the Firearm had traveled in or affected interstate or foreign commerce,

12   the disputed issue was possession.

13                The Indictment alleged that Estevez possessed the Firearm "from at least

14   on or about February 21, 2016 through on or about February 26, 2016." Estevez

15   contends that "[t]he crime of possession [i]s complete in a single moment," and that the

16   Indictment in its single count thus alleged that he committed "separate crimes" on

17   those two dates. (Estevez brief on appeal at 18, 31 (emphasis added).) Estevez's use

18   of the word "complete" is correct in the sense that from the very moment a previously


                                               17
 1   convicted felon begins his knowing possession of a firearm (one having a nexus with

 2   commerce), he is subject to prosecution under § 922(g)(1). Cf. Ball v. United States, 470

 3   U.S. 856, 862 (1985) (upon "recei[pt], a firearm is necessarily possessed" (internal

 4   quotation marks omitted)). But in suggesting that "complete" in that single moment

 5   means finished or ended, Estevez misconceives the nature of possession and of

 6   prohibitions against possession.

 7                Possession may or may not be brief, but it is not the kind of

 8   instantaneous event that typically is concluded the moment it occurs; rather

 9   possession is conduct that normally spans some period of time. "The offense

10   proscribed by section 922(g)(1) is not the felon's 'acquisition' of a firearm" but rather

11   "is the felon's possession of a firearm." United States v. Dillard, 214 F.3d 88, 94 n.5 (2d

12   Cir. 2000) ("Dillard"). "Indeed, it seems undeniable that in the case of many convicted

13   felons, the reason why they possess guns illegally is to be able to use them in future

14   acts or threats of violence." Id. at 100 n.12. Thus, "possession" of a firearm "is a

15   continuing offense." United States v. Waters, 23 F.3d 29, 36 (2d Cir. 1994); accord Johnny

16   Jackson, 479 F.3d at 491 ("[p]ossession of a firearm is a continuing offense which ceases

17   only when the possession stops" (internal quotation marks omitted)). "The offense




                                                 18
 1   continues to be committed as long as the felon continues to be in possession." Dillard,

 2   214 F.3d at 94 n.5.

 3                As possession is a continuing offense, "[t]he continuous possession of the

 4   same gun does not amount to a series of crimes, but rather constitutes a single

 5   offense." United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989). Indeed, in order to

 6   convict a defendant "on two separate counts of being a felon in possession, the

 7   government would have . . . to prove that he lost possession of the gun at some point

 8   between the two charged dates." Johnny Jackson, 479 F.3d at 491 (emphasis in

 9   original); cf. United States v. Praddy, 725 F.3d 147, 157-58 (2d Cir. 2013) (government

10   is not entitled to claim that a defendant continuously possessed a firearm after it had

11   been seized from him upon his arrest).

12                In considering an allegation that a single offense of possession was

13   committed during a specified time period, the jury may properly return a verdict of

14   guilty if it finds unanimously that the defendant possessed the firearm at any point

15   during that period. See generally Richardson, 526 U.S. at 817 (the "jury need not always

16   decide unanimously which of several possible . . . underlying brute facts make up a

17   particular element"); see, e.g., Johnny Jackson, 479 F.3d at 487, 491 (where the indictment

18   charged the defendant with "possessing a firearm '[o]n or about July 12, 2004, through

                                                 19
 1   July 15, 2004,'" it "charged not multiple offenses under one count of being a felon in

 2   possession, but a single course of illegal conduct that spanned three days. . . . If half of the

 3   jurors found that Jackson possessed the gun on July 12 and half found that he

 4   possessed it on July 15, the jury would still be unanimous that he possessed a gun

 5   between July 12 and July 15--which is exactly what the indictment charged." (last

 6   emphasis in Johnny Jackson; other emphases added)).




 7          4. The Present Case

 8                 The case against Estevez was not complex. It was commenced with a

 9   simple one-count, one-paragraph indictment that charged him with being a felon in

10   possession of the specified Firearm in the six-day period from February 21, 2016

11   through February 26. There was no indication in either the Indictment or the trial

12   evidence that Estevez lost possession of the gun between those two dates. The

13   government's evidence created a strong and uncomplicated record, including first-

14   hand testimony by Curley, video evidence from security cameras, and Estevez's own

15   postarrest recorded telephone statement, that Estevez possessed the Firearm on

16   February 26; ballistics evidence that the Firearm had been fired at the Broadway

17   IHOP on February 21; cell phone records and cell-site data indicating that Estevez

                                                   20
 1   was in the vicinity of those February 21 and 26 shootings; and scientific tests revealing

 2   that the Firearm bore Estevez's DNA.

 3                We conclude that the indictment properly charged, and the government

 4   proved, the single offense of Estevez's possession of the Firearm during the period

 5   alleged. The instruction requested by Estevez would have incorrectly charged the

 6   jury that the Indictment charged him with two offenses rather than one. As

 7   possession is a continuing offense, the jury was not required unanimously to pinpoint

 8   a precise time at which Estevez possessed the Firearm within the period alleged. The

 9   general unanimity charge delivered by the district court was correct and adequate.

10   And if there were error, we would conclude, given the overwhelming evidence that

11   Estevez possessed the Firearm on February 26, that the error was beyond a reasonable

12   doubt harmless. We see no basis for overturning the jury's verdict.




13   B. Sentencing Contentions

14                Estevez contends that the imprisonment component of his sentence, 100

15   months, is both (a) procedurally unreasonable, arguing that there was error in district

16   court's calculation of the range recommended by the Sentencing Guidelines

17   ("Guidelines"); and (b) substantively unreasonable, arguing principally that the court


                                                21
 1   failed to take into account his youth, disadvantaged background, and abusive

 2   treatment he experienced while held in youth detention facilities. Both sets of

 3   contentions are to be reviewed under the abuse-of-discretion standard. See, e.g., Gall

 4   v. United States, 552 U.S. 38, 41 (2007); United States v. Cavera, 550 F.3d 180, 187 (2d Cir.

 5   2008) (en banc) ("Cavera"); United States v. McGinn, 787 F.3d 116, 129 (2d Cir. 2015)

 6   ("McGinn"); United States v. Rigas, 583 F.3d 108, 114 (2d Cir. 2009) ("Rigas"). Abuse of

 7   discretion may be found where the court has made either an error of law or a clearly

 8   erroneous finding of fact, or where its ruling "cannot be located within the range of

 9   permissible decisions." E.g., United States v. Flores, 945 F.3d 687, 704 (2d Cir. 2019)

10   (internal quotation marks omitted); McGinn, 787 F.3d at 129 (internal quotation marks

11   omitted); Rigas, 583 F.3d at 114 (internal quotation marks omitted).




12          1. The Guidelines Calculation

13                 To the extent pertinent to this appeal, the district court's calculations,

14   under the 2016 version of the Guidelines, ultimately set Estevez's offense level at 22

15   and his criminal history category at VI; the Guidelines-recommended range of

16   imprisonment was thus 84-105 months (see Sentencing Transcript, December 20, 2017

17   ("S.Tr."), at 34). The offense-level calculation included a four-step enhancement on

                                                  22
 1   the basis that Estevez possessed the Firearm in connection with another felony

 2   offense. Estevez contends that there was insufficient evidence to support this

 3   enhancement. We disagree.

 4                The guideline in question calls for a four-step increase in offense level if

 5   the defendant either

 6                possessed any firearm . . . in connection with another felony
 7                offense; or possessed . . . any firearm . . . with knowledge, intent,
 8                or reason to believe that it would be used or possessed in
 9                connection with another felony.

10   Guidelines § 2K2.1(b)(6)(B). "In General," this provision "appl[ies] if the firearm . . .

11   had the potential of facilitating[] another felony offense."         Guidelines § 2K2.1

12   Application Note 14(A). "'Another felony offense'" is defined in pertinent part to

13   "mean[] any federal[ or] state . . . offense, other than the . . . firearms possession . . .

14   offense, punishable by imprisonment for a term exceeding one year, regardless of

15   whether a criminal charge was brought, or a conviction obtained." Id. Application

16   Note 14(C). In imposing an enhancement under § 2K2.1(b)(6)(B), the sentencing court

17   need not recite each element of the "[]other felony offense," so long as it makes

18   findings sufficient to permit meaningful appellate review. See United States v. Legros,

19   529 F.3d 470, 474 (2d Cir. 2008).



                                                 23
 1                 Estevez's trial counsel opposed application of this guideline, arguing that

 2   Curley's testimony should not be believed, and that the record showed only that

 3   Estevez hoped to commit a robbery "at some nebulous time in the future" (S.Tr. 16).

 4   His appellate counsel argues that "Estevez had agreed" with Curley that "they would

 5   not use a gun to commit the robbery" of Sharkey, and that "the robbery never

 6   occurred" (Estevez brief on appeal at 20). Their arguments are meritless.

 7                 First, the trial court--"the relevant trier of fact" with respect to sentencing

 8   (S.Tr. 34)--credited Curley's trial testimony (see, e.g., id. at 12), and the record squarely

 9   contradicts counsel's suggestion that Estevez's aspirations for robbing Sharkey

10   focused on some nebulous time in the future. Estevez called Curley at 1 a.m. on

11   February 26 to suggest robbing Sharkey; Curley, purporting to agree, "told [Estevez]

12   to hurry up and come now" (Tr. 264). Estevez arrived within minutes. (See, e.g., GX

13   70-T at 2 (after arriving, Estevez "tussl[ed]" with Curley over the gun); Tr. 134, 144-45

14   (in the Building security camera video, the NYPD detective saw two people tussling,

15   and thereafter recognized Estevez at 1:13:08).) That Estevez had intended to rob

16   Sharkey immediately was clear, not clouded.

17                 Second, the fact that the robbery of Sharkey never actually occurred is

18   irrelevant. Under New York State law, attempt to commit robbery is a felony,


                                                  24
 1   punishable by a prison term exceeding one year. See N.Y. Penal Law §§ 10.00, 110.05,

 2   160.05, 160.10, 160.15. Estevez acknowledges that, with respect to § 2K2.1(b)(6)(B), the

 3   district court found that "'the firearm was possessed by the defendant in connection

 4   with another felony offense'" on February 26, "'specifically, an attempt to commit a

 5   robbery.'" (Estevez brief on appeal at 15, 21 (quoting S.Tr. 31-32, and noting that the

 6   court instructed that Estevez's presentence report ("PSR") be amended to so state)

 7   (emphasis ours).)

 8                Estevez's only apparent effort to suggest that the evidence was

 9   insufficient to support the court's finding that he possessed the Firearm in connection

10   with attempted robbery is his argument that in his call to Curley suggesting that they

11   rob Sharkey, Curley said that Estevez did not need to bring a gun and "Estevez

12   replied 'all right.'" (E.g., Estevez brief on appeal at 36 (quoting Tr. 264).) However,

13   it is undisputed that when Estevez went to meet his presumed accomplice Curley on

14   February 26 he "brought a loaded nine-millimeter semiautomatic pistol" (Estevez brief

15   on appeal at 6). The court found that "the reason why" Estevez had brought the

16   Firearm with him was that "the gun was going to come in handy that night . . .

17   because they were going to commit a robbery" (S.Tr. 34); "he was in the process of

18   committing a crime of attempted robbery" (id. at 12 (emphasis added)). The district

                                               25
 1   court committed no error in inferring that Estevez brought the Firearm in order to

 2   have it with him for the planned robbery of Sharkey. Estevez's possession of the

 3   loaded Firearm plainly had the "potential of facilitating" an attempted robbery.

 4                Estevez does not argue that his conduct was otherwise insufficient to

 5   constitute the crime of attempted robbery, nor would we agree with such an

 6   argument. Under New York law, "[a] person is guilty of an attempt to commit a

 7   crime when, with intent to commit a crime, he engages in conduct which tends to

 8   effect the commission of such crime." N.Y. Penal Law § 110.00. "In order to constitute

 9   an attempt, the defendant's conduct must have passed the stage of mere intent or

10   mere preparation to commit a crime . . . . In other words, the defendant must have

11   engaged in conduct that came dangerously near commission of the completed crime

12   . . . ." People v. Naradzay, 11 N.Y.3d 460, 466 (2008) (internal quotation marks omitted).

13   In Naradzay, the defendant, who planned to shoot a woman who had spurned him,

14   bought a shotgun, borrowed a car, drove to her street, and exited the car armed with

15   the loaded shotgun. (See id. at 463-64.) But he was unsure of the exact location of her

16   house. (See id. at 464.) While walking up the street, he was observed by someone

17   who called 911; he was arrested after a responding officer saw him standing on the

18   shoulder of the road, near the woman's driveway, the shotgun having been placed

                                                26
 1   next to a snowbank. (See id. at 464-65.) His convictions for both attempted murder

 2   and attempted burglary were affirmed. The Court rejected the defendant's contention

 3   that his actions "did not come 'dangerously near' commission of burglary and

 4   murder," id. at 466, despite the fact that "he had not yet picked up the shotgun [which

 5   he had, of course, brought with him, or] walked onto [the woman's] property[,] or

 6   tried to enter her home," id. at 467.

 7                In the present case, the district court could likewise find that Estevez had

 8   committed the crime of attempting to rob Sharkey. Estevez plainly intended to rob

 9   Sharkey; he had called Curley precisely to enlist Curley's assistance in that robbery.

10   Although the record does not indicate that Estevez knew Sharkey's exact

11   whereabouts, Sharkey was a known drug dealer in the neighborhood; and when

12   Estevez called Curley at 1 a.m. on February 26 to suggest that they rob Sharkey,

13   Curley's purportedly enthusiastic response--"come now" and "hurry up"--plainly

14   implied that Sharkey could be robbed in or near the 3340 Building. It was clearly

15   permissible for the district court to infer that Estevez so understood that implication

16   and that he did hurry, arriving minutes later, carrying his loaded Firearm, expecting

17   to see or find Sharkey shortly and to rob him. The court did not err in inferring that




                                                27
 1   Estevez had gone sufficiently beyond mere intent or mere preparation to be

 2   dangerously near commission of his planned robbery.

 3                In sum, we see no error in the district court's finding that Estevez

 4   possessed the Firearm on February 26 "because they were going to commit a robbery"

 5   "that night," or with the court's conclusion that Estevez had brought the Firearm

 6   because it would "come in handy" for the attempted robbery. We see no error of law

 7   or abuse of discretion in the court's application of the § 2K2.1(b)(6)(B) enhancement.




 8         2. Substantive Reasonableness

 9                Estevez asserts that his 100-month prison term is substantively

10   unreasonable (see Estevez brief on appeal at 41-53), principally pointing to the facts

11   that he was only 19 years of age at the time of his present crime, too young to be

12   expected to have the maturity and judgment of an adult; that he had a disadvantaged

13   youth, in that he was "frequently assaulted" when he was "held in custody in juvenile

14   detention facilities for an extended period of his teenage years" (id. at 45-46); and that

15   in light of his youth at the time of most of his prior convictions, his Guidelines

16   criminal history "overstated the seriousness of his prior criminal conduct" (id. at 49).




                                                28
 1                We will "'set aside a district court's substantive determination' as to an

 2   appropriate sentence 'only in exceptional cases where the trial court's decision cannot

 3   be located within the range of permissible decisions.'" United States v. McIntosh, 753

 4   F.3d 388, 394 (2d Cir. 2014) (quoting Cavera, 550 F.3d at 189 (emphasis in Cavera)). The

 5   "substantive unreasonableness standard[] in appellate review" is "deferential to

 6   district courts and provide[s] relief only in the proverbial 'rare case'" in which the

 7   sentence, "although procedurally correct, . . . was [so] shockingly high, shockingly

 8   low, or otherwise unsupportable as a matter of law" as to "damage the administration

 9   of justice." Rigas, 583 F.3d at 123. This is not such a case.

10                Estevez's sentencing contentions were argued at length, at and prior to

11   sentencing; and the record indicates that the court considered his contentions and

12   addressed the pertinent sentencing factors it was required to consider under 18 U.S.C.

13   § 3553(a), in determining an appropriate sentence that would be sufficient, but not

14   greater than necessary, to comply with the statutory purposes of sentencing. The PSR

15   prepared on Estevez had calculated that his offense level was 28 and concluded that

16   the Guidelines-recommended range of imprisonment was 140-175 months, but

17   capped at 120 months by the 10-year statutory maximum for the offense. The district

18   court's acceptance of some of Estevez's arguments reduced his offense level to 22,

                                                29
 1   thereby lowering the range to 84-105 months. The court also recalculated Estevez's

 2   criminal history points, although without similar effect. The PSR had calculated that

 3   Estevez had 18 criminal history points, which placed him in criminal history category

 4   VI--the highest Guidelines category. The court, over the government's objection,

 5   declined to include in the calculation Estevez's first conviction for robbery, which

 6   reduced his number of criminal history points to 15; however, his criminal history

 7   was so extensive that he remained in category VI.

 8                  The court observed that Estevez had earned an extraordinarily "high

 9   criminal history category" for one so young--i.e., by the age of 19 (S.Tr. 34). It noted

10   that whenever he got out of prison--"out on supervision" or "out under the thumb of

11   law enforcement"--he "went right back to doing what [he] had been doing before."

12   (Id. at 22.)

13                  Although Estevez argues that because of his youth at the time of most of

14   his prior convictions, the PSR overstated the "seriousness of his prior criminal

15   conduct" (Estevez brief on appeal at 49), the court appropriately declined to conflate

16   Estevez's personal characteristics with the nature of his crimes. It noted that "so far

17   you spent your entire life doing nothing but violent things." (S.Tr. 21.) Indeed, of

18   Estevez's nine prior convictions, one was for gun possession, and six were for robbery


                                                30
 1   or assault. The court stated, "I accept that terrible things happened to you in your

 2   life," and "I agree that the teenage brain is not completely formed." (Id.) And it stated,

 3   "at one level I can sympathize"; "[b]ut I feel a responsibility to society to protect the

 4   members of society from someone who is behaving the way that you have behaved."

 5   (Id. at 22.)

 6                         Mr. Estevez has led a very, very violent young life. He has
 7                  demonstrated repeatedly his contempt for authority, his inability
 8                  or his unwillingness to follow the rules, including the rules on
 9                  multiple occasions when he was on parole. This does not leave
10                  the Court feeling sanguine that he is a particularly good candidate
11                  now, or anytime in the near future, for being in the community
12                  under supervision.

13   (S.Tr. 33.) Noting that its revised Guidelines calculations resulted in a recommended

14   imprisonment range of 84 to 105 months, the court sentenced Estevez to 100 months,

15   stating,

16                  I conclude that a sentence toward the high end of the guidelines
17                  is appropriate but not greater than necessary, given the history
18                  and characteristics of the defendant, the nature of the crime, the
19                  need to impress upon the defendant the seriousness of his
20                  behavior, and as I have said several times, the need to protect
21                  society.

22   (Id. at 34.)




                                                 31
1                In sum, the record shows that the district court considered the § 3553(a)

2   factors, considered Estevez's sentencing contentions, and, after weighing the relevant

3   factors, imposed a sentence that was well within the bounds of its discretion. We see

4   no unreasonableness in his sentence.




5                                     CONCLUSION




6                We have considered all of Estevez's arguments on this appeal and have

7   found them to be without merit. The judgment is affirmed.




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