         10-5061-cr
         United States v. Carter

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 28th day of June, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                J. GARVAN MURTHA,
10                              District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      -v.-                                                10-5061-cr
19
20       EDWIN CANDELARIO, VINCE REEDER,
21
22                                     Defendants,
23
24       ELEXIUS CARTER,
25
26                                     Defendant-Appellant.
27
28
29       FOR APPELLANT:                STEPHEN LANCE CIMINO, Office of Stephen
30                                     Lance Cimino, Syracuse, NY.

                *
                The Honorable J. Garvan Murtha, of the United States District Court for
         the District of Vermont, sitting by designation.
 1   FOR APPELLEE:      RAJIT S. DOSANJH, Assistant United States
 2                      Attorney (John M. Katko, Assistant United
 3                      States Attorney, on the brief) for
 4                      Richard S. Hartunian, United States
 5                      Attorney for the Northern District of New
 6                      York, Syracuse, NY.
 7
 8        Appeal from the United States District Court for the
 9   Northern District of New York (Scullin, J.).
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the Appellant’s conviction be AFFIRMED.

13   However, we VACATE and REMAND for resentencing proceedings

14   consistent with this order.

15       Appellant Elexius Carter appeals from a judgment of the

16   United States District Court for the Northern District of

17   New York (Scullin, J.).    Carter was convicted after a jury

18   trial of one count of possession with intent to distribute

19   fifty or more grams of a substance containing cocaine base,

20   in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).       The

21   district court sentenced Carter to 175 months’

22   incarceration.   We assume the parties’ familiarity with the

23   underlying facts, the procedural history, and the issues

24   presented for review.

25       Between his counseled and pro se briefs, Carter raises

26   no fewer than nine issues for review.    We address only those

27   that merit discussion.    First, Carter contends that the


                                    2
1    police had no reasonable basis to initiate an investigatory

2    stop of Carter and that they had no probable cause to arrest

3    Carter.   Therefore, in Carter’s view, the evidence flowing

4    from his stop and arrest should have been suppressed.            It is

5    well established that “a police officer may briefly detain

6    an individual for questioning if the officer has a

7    reasonable suspicion that the individual is, has been, or is

8    about to be engaged in criminal activity.”    United States v.

9    Padilla, 548 F.3d 179, 186 (2d Cir. 2008) (internal

10   quotation marks omitted).    Courts look to the totality of

11   the circumstances to determine whether police had a

12   “particularized and objective basis to suspect criminal

13   activity.”    Id. (internal quotation marks omitted).       In

14   other words, the officer “must be able to point to specific

15   and articulable facts which, taken together with rational

16   inferences from those facts, reasonably warrant [the]

17   intrusion.”    Terry v. Ohio, 392 U.S. 1, 21 (1968).    A

18   showing of reasonable suspicion requires “considerably less”

19   than a showing of probable cause.    United States v. McCargo,

20   464 F.3d 192, 197 (2d Cir. 2006).    “Probable cause to arrest

21   a person exists if the law enforcement official, on the

22   basis of the totality of the circumstances, has sufficient


                                    3
1    knowledge or reasonably trustworthy information to justify a

2    person of reasonable caution in believing that an offense

3    has been or is being committed by the person to be

4    arrested.”    United States v. Patrick, 899 F.2d 169, 171 (2d

5    Cir. 1990).

6        After a thorough review of the record, we are satisfied

7    that the police had a particularized and objective basis to

8    suspect that Carter was engaged in criminal activity when

9    they stopped him.   This reasonable suspicion turned into

10   probable cause to arrest Carter as police obtained more

11   information during the course of their inquiry.       Carter’s

12   claim that the evidence flowing from his stop and arrest

13   should be suppressed is without merit.

14       Carter also argues that evidence obtained from the

15   search of 116 Beecher Street pursuant to a judicially issued

16   warrant should be suppressed.       Specifically, Carter contends

17   that (1) the information used to obtain the warrant was the

18   product of his challenged stop and arrest, which Carter

19   believes were unlawful, and (2) “[t]he warrant was the

20   product of speculation, surmise, and suspicion, and not

21   probable cause.”    See Carter Br. 20.     We reject the first

22   argument because both Carter’s stop and arrest were lawful.


                                     4
1    As to the argument that the warrant was not supported by

2    probable cause, we deem the issue waived.    “It is a settled

3    appellate rule that issues adverted to in a perfunctory

4    manner, unaccompanied by some effort at developed

5    argumentation, are deemed waived.”     Tolbert v. Queens

6    College, 242 F.3d 58, 75 (2d Cir. 2001) (emphasis added)

7    (internal quotation marks omitted); see Frank v. United

8    States, 78 F.3d 815, 833 (2d Cir. 1996), vacated on other

9    grounds by, 521 U.S. 1114 (1997).    In any event, the

10   argument is without merit.

11       In his pro se brief, Carter argues that the district

12   court erred in calculating his criminal history category

13   because it improperly assessed two “recency” points under a

14   provision of the Guidelines that had been repealed prior to

15   sentencing.   See U.S.S.G. § 4A1.1(e) (2008 ed.); U.S.S.G.

16   App. C., amend. 742 (effective Nov. 1, 2010).    Although

17   Carter did not object at the time of sentencing, we may

18   correct such an error if the appellant demonstrates that the

19   error was plain, affected his substantial rights, and

20   “seriously affects the fairness, integrity or public

21   reputation of judicial proceedings.”     See United States v.

22   Marcus, 130 S. Ct. 2159, 2164 (2010) (internal quotation


                                   5
1    marks and alteration omitted).     Because the error here

2    resulted in Carter being placed in a higher criminal history

3    category, thus resulting in a higher Guidelines range, we

4    remand for resentencing.   Significantly, the government

5    concedes that the district court committed plain error and

6    that remand is appropriate.

7        We have reviewed all of Carter’s remaining arguments

8    and after a thorough review of the record and relevant law

9    find them to be without merit.

10       For the foregoing reasons, Carter’s conviction is

11   hereby AFFIRMED.   We VACATE and REMAND for resentencing

12   proceedings consistent with this order.

13
14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




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