     14-809-cr
     United States v. Robinson


 1                            UNITED STATES COURT OF APPEALS

 2                                FOR THE SECOND CIRCUIT

 3                                  August Term, 2014

 4   (Argued: March 25, 2015                            Decided: August 26, 2015)

 5                                Docket No.       14-809-cr

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 7   UNITED STATES OF AMERICA,
 8
 9                Appellee,
10
11                       v.
12
13   SHARIF ROBINSON,
14
15                Defendant-Appellant,
16
17   MARCUS HUTCHINSON,
18
19                Defendant.
20
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22
23   B e f o r e:        WINTER, LIVINGSTON, and CHIN, Circuit Judges.

24         Appeal from a conviction after a guilty plea, in the United

25   States District Court for the Eastern District of New York
26   (Joanna Seybert, Judge), to aiding and abetting carjacking and
27   the brandishing of a firearm during a crime of violence.            On

28   appeal, appellant challenges the sufficiency of the evidence

29   underlying his plea in light of Rosemond v. United States, 134

30   S.Ct. 1240 (2014), and the failure of the district court to

31   depart downwardly from the Sentencing Guidelines.            We affirm.


                                               1
 1                                  MITCHELL A. GOLUB, Golub & Golub,
 2                                  LLP, New York, New York, for
 3                                  Defendant-Appellant.
 4
 5                                  MICHAEL P. CANTY, Assistant United
 6                                  States Attorney, for Kelly T.
 7                                  Currie, Acting United States
 8                                  Attorney, Eastern District of New
 9                                  York, Brooklyn, New York, for
10                                  Appellee.
11
12   WINTER, Circuit Judge:

13        Sharif Robinson appeals from his conviction and sentence

14   after pleading guilty before Judge Seybert to aiding and

15   abetting, 18 U.S.C. § 2:   (i) carjacking, in violation of 18

16   U.S.C. § 2119; and (ii) the brandishing of a firearm during a

17   crime of violence, i.e., the carjacking, in violation of 18

18   U.S.C. § 924(c).   Appellant challenges the sufficiency of the

19   evidence supporting his plea in light of Rosemond v. United

20   States, 134 S. Ct. 1240 (2014), and asks us to vacate the plea

21   and conviction.

22        We hold that his conviction for aiding and abetting a

23   violation of Section 924(c) was supported by his admission that

24   he knew that a firearm was being used during the carjacking and

25   thereafter aided and abetted the carjacking.   Alternatively,

26   appellant attacks the procedural reasonableness of his sentence.

27   We hold that the district court did not err in failing to depart

28   downwardly from the Sentencing Guidelines because of appellant’s

29   confinement in decrepit and unsafe conditions of confinement at

30   the Nassau County Correctional Center.   Accordingly, we affirm.


                                      2
 1                                 BACKGROUND

 2        Based on the colloquy accompanying the guilty plea, the

 3   following facts were the basis for appellant’s conviction.

 4        On August 26, 2012, appellant was "hanging out" with Marcus

 5   Hutchinson and two other men on Albemarle Avenue in Hempstead,

 6   New York, when they observed a Cadillac turning the corner to

 7   Nostrand Place.     Hutchinson, recognizing the male driver, left

 8   the group, telling the others that he was going to rob the

 9   driver.   No mention was made of the use of a gun.

10        Hutchinson followed the car and disappeared around the

11   corner, but the driver retreated to a nearby house.        Hutchinson

12   then decided to steal the Cadillac, in which a female passenger

13   remained.     As this confrontation was happening, appellant

14   "decided to go around the corner to make sure everything was all

15   right."   J. App. at 36.    After rounding the corner, appellant saw

16   Hutchinson pointing a gun at the Cadillac's female passenger, who

17   “was getting out of the car.”    J. App. at 41.   Appellant told

18   Hutchinson to "put the gun away."      J. App. at 41-42.   Hutchinson

19   did so; the female passenger fled; and appellant and Hutchinson

20   then drove off in the vehicle.     They were soon apprehended.

21        Appellant was indicted for aiding and abetting, under 18

22   U.S.C. § 2:    (i) carjacking, in violation of 18 U.S.C. § 2119;

23   and (ii) brandishing a firearm during a crime of violence, i.e.,

24   the carjacking, in violation of 18 U.S.C. § 924(c).



                                        3
 1        During his plea colloquy, appellant stated that he had been

 2   initially unaware that Hutchinson was planning to use a gun

 3   during the robbery.   Appellant admitted that, at all pertinent

 4   times, he knew that a robbery was intended and that the female

 5   passenger was involuntarily surrendering the Cadillac.   He also

 6   acknowledged that he learned that the gun was being used to take

 7   the vehicle, although he did tell Hutchinson to put the gun away

 8   when he saw it.

 9        During the colloquy, the prosecutor noted that appellant did

10   not "turn[] and run[] the other way" after realizing that a gun

11   was being used.   J. App. at 40.   Instead, he continued to join in

12   as a reinforcement in the stealing of the vehicle.    The district

13   judge asked appellant if he agreed with the version of events as

14   stated by the prosecutor, and appellant replied "yes."   After

15   appropriate warnings to appellant of the consequences of pleading

16   guilty, the district judge accepted the plea.

17        On February 28, 2014, the district court sentenced appellant

18   to 28 months of imprisonment on the aiding and abetting a

19   carjacking count and 84 months of imprisonment on the aiding and

20   abetting the brandishing of a firearm during a crime of violence

21   count.   At sentencing, appellant's counsel requested that the

22   district court downwardly depart from the applicable Sentencing

23   Guidelines based on the conditions of confinement at Nassau

24   County Correctional Center ("NCCC").   Counsel alleged, inter

25   alia, that food preparation takes place under unsanitary

                                        4
 1   conditions; access to the law library is restricted to only 45

 2   minutes a day; heating systems are non-existent; inmate housing

 3   is substandard with water leaks and roach infestations; and

 4   unaffiliated inmates are not segregated from violent gang

 5   members.   The district court denied the request, noting that it

 6   had past experience with cases out of NCCC.   The court also

 7   suggested that counsel had not provided enough evidence to

 8   warrant a downward departure.    The sentence described above was

 9   then imposed.
10        On March 5, 2014, the Supreme Court decided Rosemond v.
11   United States, 134 S. Ct. 1240 (2014), clarifying the

12   relationship of the aiding and abetting statute, 18 U.S.C. § 2,

13   and 18 U.S.C. § 924(c)'s prohibition against using a firearm

14   during a crime of violence.    On appeal, appellant argues that his

15   plea lacked a sufficient factual basis under Rosemond because he

16   was unaware that Hutchinson planned to use a gun in the

17   carjacking until he turned the corner and saw the weapon.

18   Alternatively, appellant attacks the procedural reasonableness of

19   his sentence given the district court’s failure to depart from

20   the Sentencing Guidelines.

21                                 DISCUSSION

22   a) Sufficiency of the Evidence in Light of Rosemond

23        Under Fed. R. Crim. P. 11, the district court may accept a

24   guilty plea only if the plea has a "factual basis."   Fed. R.

25   Crim. P. 11(b)(3).   The court is not required “to weigh evidence

                                       5
 1   to assess whether it is even more likely than not that the

 2   defendant is guilty."         United States v. Maher, 108 F.3d 1513,

 3   1524 (2d Cir. 1997).         Instead, the district court must simply

 4   satisfy itself that "the conduct to which the defendant admits is

 5   in fact an offense under the statutory provision under which he

 6   is pleading guilty."         Id.; see also Fed. R. Crim. P. 11(f).

 7         In making this inquiry, the district court can accept a

 8   defendant's own admissions as true.              Maher, 108 F.3d at 1521.

 9   The court can rely on the defendant’s admissions and any other

10   evidence placed on the record at the time of the plea, including

11   evidence obtained by inquiry of either the defendant or the
12   prosecutor.      Irizarry v. United States, 508 F.2d 960, 967 (2d
13   Cir. 1974); see also United States v. Adams, 448 F.3d 492, 499

14   (2d Cir. 2006).       But, any plea colloquy must involve more than

15   simply "a reading of the indictment to the defendant coupled with

16   his admission of the acts described in it."                United States v.

17   McFadden, 238 F.3d 198, 201 (2d Cir. 2001) (internal quotation

18   marks omitted).
19         We review objections to the sufficiency of a guilty plea,

20   where -- as here -- the defendant raised no objection below, for
21   plain error.      United States v. Vonn, 535 U.S. 55, 62-63 (2002);
22   see also United States v. Vaval, 404 F.3d 144, 151 (2d Cir.

23   2005).    We find no error here, much less plain error.1

            1
              As noted in United States v. Needham, we have “applied a modified plain error
     analysis in cases where, as here, the source of plain error is a supervening
     decision,” whereby “the government, not the defendant, bears the burden to demonstrate

                                               6
 1         Under Section 924(c), it is a crime to brandish a firearm

 2   "during and in relation to any crime of violence."                   18 U.S.C. §

 3   924(c)(1)(A).      For its part, the federal aiding and abetting

 4   statute punishes, as a principal, an individual that "aids,

 5   abets, counsels, commands, induces or procures" the commission of

 6   an underlying federal offense.            18 U.S.C. § 2.       In Rosemond, the

 7   Supreme Court explained “what it takes to aid and abet a § 924(c)

 8   offense."     134 S. Ct. at 1245.

 9         The Court noted that the aiding and abetting statute

10   requires both an affirmative act furthering the underlying

11   offense and an intent to facilitate that offense's commission.
12   Id.   The Supreme Court emphasized that the affirmative act

13   requirement is met when the defendant facilitates any element of

14   the underlying offense.          Id. at 1247.       Therefore, a defendant’s

15   conduct can satisfy the affirmative act requirement of aiding and

16   abetting the Section 924(c) offense, even if the act did not

17   specifically facilitate the use of the firearm.                  Id. at 1248.

18         The intent requirement is stricter than the facilitation
19   requirement in that "the intent must go to the specific and

20   entire crime charged -- so here, to the full scope (predicate
21   crime plus gun use) of § 924(c)."             Id.    It is true that the


     that the error . . . was harmless.” 604 F.3d 673, 678 (2d Cir. 2010) (internal
     quotation marks and citations omitted). This standard may be incorrect in light of
     Johnson v. United States, where the Supreme Court applied plain error review when the
     error stemmed from a change in Supreme Court law decided after the defendant’s
     conviction. See 520 U.S. 461, 466 (1997). We “need not resolve this open question
     [here] because, whether plain error or some modified approach is applied, our
     conclusions would be the same.” Needham, 604 F.3d at 678.

                                               7
 1   requisite intent to use a gun is shown only when a defendant has

 2   prior knowledge that a firearm will be used.    However, the

 3   requisite prior knowledge "means knowledge at a time the

 4   accomplice can do something with it -- most notably, opt to walk

 5   away."   Id. at 1249-50.    In other words, "[a] defendant manifests

 6   that greater intent, and incurs the greater liability of

 7   § 924(c), when he chooses to participate in a [violent crime]

 8   knowing it will involve a firearm; but he makes no such choice

 9   when that knowledge comes too late for him to be reasonably able
10   to act upon it."    Id. at 1251.   And, a defendant can reasonably

11   walk away upon learning of a gun's use or planned use, so long as

12   withdrawing would not "increase the risk of gun violence."      See

13   id.

14         At the time of appellant’s plea, there was a sufficient

15   factual basis on the record for the district court to accept

16   appellant's plea.   The affirmative act requirement is easily met

17   because appellant joined Hutchinson in taking the car.    The

18   intent requirement is also satisfied because, upon learning that
19   a gun was being brandished, appellant, as he conceded in his plea

20   colloquy, had a chance to "turn[] and run[] the other way" but
21   did not.   J. App. at 40.   See id. at 1250 n.9 (noting that
22   advance knowledge can be inferred "if a defendant continues to

23   participate in a crime after a gun was displayed or used by a

24   confederate").   Robinson saw the gun as he rounded the corner,

25   and joined the carjacking while Hutchinson was still

                                        8
 1   “brandishing” the gun within the meaning of § 924(c)(4).    Instead

 2   of leaving then and there, he continued to participate.    Thus,

 3   there was a sufficient “temporal and relational conjunction,” id.

 4   at 1248, between the predicate crime and the use of the firearm

 5   to support a § 924(c)(1)(A)(ii) conviction under an aiding and

 6   abetting theory of liability.   Finally, there is no reason on

 7   this record to believe that appellant’s withdrawing would

 8   increase the risk of gun violence, although Robinson could

 9   certainly have argued so had he gone to trial.

10        In sum, appellant could have reasonably retreated -- but did
11   not -- and the requirement described in Rosemond was met.     We

12   accordingly conclude that the district court properly accepted

13   appellant's plea.

14   b) The Sentence’s Procedural Reasonableness

15        Appellant attacks the procedural reasonableness of his

16   sentence –- arguing that the district court erred by not

17   downwardly departing from the Sentencing Guidelines given the

18   conditions of confinement at NCCC.   Appellant also contends that
19   the court erred by not adequately explaining its reasons for

20   refusing to depart.   We review sentences for procedural

21   reasonableness under a deferential abuse-of-discretion standard.
22   United States v. Adams, 768 F.3d 219, 224 (2d Cir. 2014).     A

23   district court commits procedural error when, inter alia, it

24   "treat[s] the Guidelines as mandatory" or fails "to adequately

25   explain the chosen sentence."   Gall v. United States, 552 U.S.

                                      9
 1   38, 51 (2007); see also United States v. Preacely, 628 F.3d 72,

 2   79 (2d Cir. 2010).    The district court committed neither of these

 3   errors.

 4        While it is true that "pre-sentence confinement conditions

 5   may in appropriate cases be a permissible basis for downward

 6   departures," United States v. Carty, 264 F.3d 191, 196 (2d Cir.

 7   2001), appellant provides insufficient reason to overturn the

 8   district court's failure to depart from the Guidelines.

 9        First, a district court's decision not to depart from the

10   Guidelines is generally unreviewable, unless it misunderstood its
11   authority to do so.   Adams, 768 F.3d at 224; see also United
12   States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005) ("[A] refusal

13   to downwardly depart is generally not appealable" unless "a

14   sentencing court misapprehended the scope of its authority to

15   depart or the sentence was otherwise illegal.").   And, "[i]n the

16   absence of clear evidence of a substantial risk that the judge

17   misapprehended the scope of his departure authority, we presume

18   that a sentenc[ing] judge understood the scope of his authority."
19   United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per
20   curiam) (internal quotation marks omitted).   There is nothing in

21   the record suggesting that the district court misunderstood its

22   ability to depart from the Guidelines.   After implying that a

23   departure would be possible, albeit a "special consideration,"

24   the court listened to arguments on the merits of a downward

25   departure.

                                      10
 1        Second, while the court must explain how it arrived at a

 2   given sentence, it need not engage in a prolonged discussion of

 3   its reasoning, especially if the matter is conceptually simple.

 4   See Rita v. United States, 551 U.S. 338, 356-59 (2007).     This is

 5   because “we entertain a strong presumption that the sentencing

 6   judge has considered all arguments properly presented to her,

 7   unless the record clearly suggests otherwise.”   United States v.

 8   Fernandez, 443 F.3d 19, 29 (2d Cir. 2006).

 9        In the present case, the district court adequately explained

10   its reasoning, noting its past experience with other NCCC

11   inmates.   The court further suggested that the evidence provided

12   by appellant’s counsel was insufficient to justify a departure.

13   In any event, a district court is under no obligation to engage

14   in an express discussion of every argument made by a defendant at
15   sentencing.   See United States v. Bonilla, 618 F.3d 102, 111 (2d
16   Cir. 2010).   Therefore, the district court committed no

17   procedural error in its sentencing.

18                               CONCLUSION
19        For the foregoing reasons, we affirm.

20




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