08-5557-cr (L), 09-0435-cr (con)
USA v. Byrd (Valentine)

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 28th day
of May, two thousand ten.

Present:
            PIERRE N. LEVAL,
            ROBERT A. KATZMANN,
            BARRINGTON D. PARKER,
                        Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

               Appellee,

                      v.                                  Nos. 08-5557-cr (L), 09-0435-cr (con)

DARIUS BYRD, EDWIN KLINE, DANIEL HESTER, JERMAIL MANUEL, DASHEEM
SIMMONS, JOHN SCOTT, EPHRAIM MONROE, JOSE PEREZ, DESURAY COLE,
SHERRY FAULK,

               Defendants,

ANTHONY VALENTINE, CHAZ GLYNN,

            Defendants-Appellants.
________________________________________________

For Defendant-Appellant
Chaz Glynn:                    MICHAEL A. YOUNG , New York, NY
For Defendant-Appellant
Anthony Valentine:             MICHELE HAUSER, New York, NY

For Appellee:                  TODD W. BLANCHE , Assistant United States Attorney (Katherine
                               Polk Failla, Assistant United States Attorney, on the brief), for
                               Preet Bharara, United States Attorney for the Southern District of
                               New York, New York, NY


       Appeal from the United States District Court for the Southern District of New York
(Rakoff, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant Chaz Glynn appeals from a judgment of conviction entered January 29, 2009

(Rakoff, J.), following a jury trial, convicting him of murder in aid of racketeering, murder in

furtherance of a drug trafficking offense, and use of a firearm in furtherance of a crime of

violence, for the murder of Frederick Fowler. Glynn was sentenced to life imprisonment.

Defendant Anthony Valentine appeals from a judgment of conviction entered November 4, 2008

(Rakoff, J.), following his guilty plea, convicting him of murder in furtherance of a drug

trafficking offense for the murder of Fowler and possession of a firearm in furtherance of a drug-

trafficking conspiracy. Valentine was sentenced to 330 months’ imprisonment. We assume the

parties’ familiarity with the facts and procedural history of this case.

       On appeal, Glynn argues that the district court (1) improperly admitted extensive

evidence regarding his gang and his gang activities unrelated to the Fowler murder, (2)

improperly excluded evidence of a gun clip found in the car in which Fowler was murdered, (3)

violated his Confrontation Clause rights by allowing a witness who had not conducted the

autopsy of Fowler to testify to the results of that autopsy, and (4) sentenced him to a mandatory


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minimum sentence in violation of the Constitution. All of Glynn’s arguments fail.

       First, the admitted evidence regarding Glynn’s gang and his gang activities was relevant

to the charged crimes, which required the government to show that Glynn ordered the murder of

Fowler, and that others followed his order, to maintain or increase their position in the gang. See

18 U.S.C. § 1959(a)(1). Nor was the probative value of this evidence substantially outweighed

by its danger of unfair prejudice. See Fed. R. Evid. 403.1 Second, the district court correctly

excluded the gun clip evidence because any relevance it had was outweighed by the highly

speculative nature of the inference defendant sought to draw and the danger of confusing the

jurors. See id. We need not reach Glynn’s third argument, regarding his Confrontation Clause

rights because we conclude that, even if there were error, it would be harmless. See United

States v. Reifler, 446 F.3d 65, 87 (2d Cir. 2006). In this case, there was no dispute that Fowler

died because he was shot by Freddie Robinson and Eddie Kline, and the results of the autopsy

report were cumulative of Robinson and Kline’s testimony.

       Finally, Glynn’s fourth argument, that his mandatory minimum sentence is

unconstitutional, is without merit. “Congress has the power to define criminal punishments

without giving the courts any sentencing discretion,” Chapman v. United States, 500 U.S. 453,



       1
           We recognize that the racketeering element of Glynn’s murder charge significantly
expanded the types of evidence deemed relevant under Federal Rules of Evidence 401 and 402,
by authorizing the introduction of a great deal of gang-related conduct attributable to Glynn. By
charging Glynn with racketeering, the government was able to introduce certain evidence as
direct evidence of the charged offense that, absent the racketeering charge, would have been
excluded as evidence of a prior bad act. We emphasize that even in these circumstances, a
district court’s duties under Federal Rule of Evidence 403 remain in full force, and the district
court must scrutinize the probative value of the proposed evidence relative to any unfair
prejudice, mindful that the government is not permitted to prove its case on the basis of emotion,
fear, or propensity evidence.

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467 (1991), and Glynn’s sentence was neither based on an arbitrary distinction, nor grossly

disproportionate to his crime, see id. at 465 (“[T]he court may impose[] whatever punishment is

authorized by statute . . . so long as that penalty is not cruel and unusual, and so long as the

penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the

Fifth Amendment.”) (internal citations omitted); see also Ewing v. California, 538 U.S.11, 22-23

(2003) (explaining that to violate the Eighth Amendment a sentence must be “grossly

disproportionate” to the crime).

       On appeal, Valentine argues that his consecutive sentence for his firearm conviction must

be remanded in light of our decision in United States v. Williams, 558 F.3d 166 (2d Cir. 2009).

Valentine, however, waived his right to appeal his below-Guidelines sentence. See United States

v. Fisher, 232 F.3d 301, 304 (2d Cir. 2000) (“[A]n otherwise enforceable wavier of appellate

rights is not rendered ineffective by a district judge’s post-sentencing advice suggesting, or even

stating, that the defendant may appeal.”).

       We have reviewed defendants’ remaining arguments and conclude that they lack merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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