11-2390 (L), 11-4456, 11-5204
United States v. Hammett, et al.

                               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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
20th day of February, two thousand fourteen.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                            -v-                                  11-2390-cr(L), 11-4456, 11-5204

GAVIN HAMMETT, AKA G, AKA SILK,
CHARLES HANDY, AKA PACO, AKA CHUMLEY,

                        Defendants-Appellants.
_____________________________________________________

Appearing for Appellants:          Deirdre A. Murray, Assistant Federal Public Defender (Terence S.
                                   Ward, Federal Defender for the District of Connecticut, Ronald B.
                                   Resetarits, former Assistant Federal Public Defender, on the brief)
                                   Hartford, CT, for Gavin Hammett.

                                   Sebastian O. DeSantis, New London, CT, for Charles Handy.

Appearing for Appellee:            Robert M. Spector, Assistant United States Attorney, New Haven
                                   CT (David B. Fein, United States Attorney for the District of
                                   Connecticut, Harold H. Chen, Bridgeport, CT, and Sandra S.
                                   Glover, New Haven, CT, Assistant United States Attorneys, on the
                                   brief).
       Appeal from the United States District Court for the District of Connecticut (Chatigny,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of said District Court be and they hereby are AFFIRMED.

        Defendant-Appellant Charles Handy was convicted of conspiracy to distribute and to
possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 846 (Count 2), and
two counts of possession with intent to distribute crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C) (Counts 3 and 5). Handy now appeals from the
April 5, 2011 decision of the district court denying his motion to suppress evidence. He also
argues that there was insufficient evidence to support his conviction. In addition, he originally
appealed from the district court’s denial of his ex parte motions for funds under the Criminal
Justice Act, 18 U.S.C. § 3006A(e), but withdrew that portion of his appeal at oral argument.

        Defendant-Appellant Gavin Hammett pleaded guilty to one count of conspiracy to
possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B). He was sentenced principally to 240 months of imprisonment. On
appeal, Hammett asserts that his sentence is substantively unreasonable.

        We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

I. Handy

         The district court properly denied Handy’s motion to suppress evidence based on the
plain view exception to the Fourth Amendment’s warrant requirement. “‘On an appeal from a
district court’s ruling on a motion to suppress evidence, we review the court’s factual findings
for clear error, viewing the evidence in the light most favorable to the government. The district
court’s legal conclusions are reviewed de novo.’” United States v. Edelman, 726 F.3d 305, 308
(2d Cir. 2013) (quoting United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009)). Under the plain
view doctrine, “if police are lawfully in a position from which they view an object, if its
incriminating character is immediately apparent, and if the officers have a lawful right of access
to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375
(1993); see also United States v. Gamble, 388 F.3d 74, 76 (2d Cir. 2004). The plain view
doctrine requires that officers have probable cause to seize the item that is in plain view. See
Arizona v. Hicks, 480 U.S. 321, 326, 328 (1987).

        The district court did not clearly err in crediting Officer Richard Gasparino’s testimony
that when he observed the red bag at issue in this case it was located next to Handy on the bed
and was open with a digital scale exposed. Based on all of the facts that were available to the
officers at the time that they entered the bedroom where Handy was arrested, there was probable
cause to seize the digital scale as evidence of a drug crime. Once the scale was lawfully seized,
the other items in the red bag came into plain view and there was also probable cause to seize
them as possible evidence of a crime.

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         Next, based on the evidence in this case, Handy’s conviction on all three counts does not
constitute plain error or manifest injustice. Given that Handy filed a motion for acquittal
pursuant to Rule 29 of the Federal Rules of Criminal Procedure at the close of the government’s
case, but failed to renew that motion after the close of all evidence, we review Handy’s challenge
to the sufficiency of the evidence for plain error or manifest injustice. See United States v.
Finley, 245 F.3d 199, 202 (2d Cir. 2001) (stating that the standard of review where a defendant
fails to renew his motion for acquittal is “plain error or manifest injustice”).

        Handy argues that under the “buyer-seller” rule, he merely bought drugs from Hammett
for his own use and that there was insufficient evidence that he was a co-conspirator in the drug
distribution operation. “Under this rule, notwithstanding that a seller and a buyer agree together
that they will cooperate to accomplish an illegal transfer of drugs, the objective to transfer the
drugs from the seller to the buyer cannot serve as the basis for a charge of conspiracy to transfer
drugs.” United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009); see also United States v.
Hawkins, 547 F.3d 66, 71–72 (2d Cir. 2008). However, “the rule does not protect either the seller
or buyer from a charge they conspired together to transfer drugs if the evidence supports a
finding that they shared a conspiratorial purpose to advance other transfers, whether by the seller
or by the buyer.” Parker, 554 F.3d at 235. In this case, Handy and Hammett were in frequent
communication and participated in standardized weekly transactions of large quantities of drugs,
which involved a fair degree of trust. Based on the evidence concerning the drug-dealing
relationship between Handy and Hammett, the jury could rationally infer that Handy had a stake
in promoting the illegal distribution of crack cocaine, in violation of 21 U.S.C. § 846 (Count 2),
and it was not plain error for the district court not to set aside the verdict.

         Nor was it irrational for the jury to find Handy guilty of possession with intent to
distribute crack cocaine on or around May 10, 2010 (Count 3) and June 17, 2010 (Count 5), in
violation of 21 U.S.C. § 841(a)(1). On May 10, 2010, the day of the traffic stop, Handy had just
purchased 28 grams of crack from Hammett’s operation, which the jury could have found was an
amount that would be used for resale and not personal use. On June 17, 2010, the day of Handy’s
arrest, he was found counting a substantial amount of cash and with a quantity of drugs
consistent with drug dealing. He was also found with a digital scale and two cell phones, which
are tools that drug dealers often possess.

II. Hammett

         Hammett’s sentence is not substantively unreasonable. At the sentencing hearing, the
district court recognized Hammett’s personal history and the characteristics which Hammett
believes the district court should have afforded more weight in calculating his sentence. The
district court determined, appropriately, that Hammett’s distribution of substantial amounts of
powder cocaine and crack cocaine was a very serious offense, warranting a severe sentence. The
court also acted within its discretion by basing the length of Hammett’s sentence on the fact that
his prior federal sentence of 105 months of incarceration had not sufficiently deterred him. The
district court agreed with Hammett that the 1:1 crack/powder cocaine ratio should apply in this
case and that Hammett should not be subject to the career offender provision of the Sentencing

                                                3
Guidelines. Those determinations resulted in a substantially decreased Guideline range, and the
district court then sentenced Hammett to the middle of that decreased range. As the district court
recognized, 240 months of incarceration is a harsh sentence, however that sentence is not
“unsupportable as a matter of law,” United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010)
(internal quotation marks omitted).

       We have considered the remainder of Handy and Hammett’s arguments and find them to
be without merit. Accordingly, the judgments of the district court hereby are AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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