10-1527-cr (L)
United States v. Massey

                   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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 14th day of March, two thousand twelve.

PRESENT:    DENNY CHIN,
            SUSAN L. CARNEY,
                           Circuit Judges.
            STEFAN R. UNDERHILL,
                           District Judge.*

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UNITED STATES OF AMERICA,
          Appellee,
                                                      10-1527-cr (L)
            -v.-                                      10-4682-cr (CON)

MICHAEL MASSEY and DEVON PATTERSON,
          Defendants-Appellants.
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FOR DEFENDANT-APPELLANT             RANDA D. MAHER, Great Neck,
MICHAEL MASSEY:                     New York.

FOR DEFENDANT-APPELLANT             LAWRENCE GERZOG, New York,
DEVON PATTERSON:                    New York.




      *
          The Honorable Stefan R. Underhill, of the United States
District Court for the District of Connecticut, sitting by
designation.
FOR APPELLEE:                  ERIC J. GLOVER, Assistant United
                               States Attorney (Robert M. Spector,
                               Assistant United States Attorney,
                               on the brief), for David B. Fein,
                               United States Attorney for the
                               District of Connecticut, Hartford,
                               Connecticut.

            Appeal from the United States District Court for the

District of Connecticut (Chatigny, J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of the district court are

AFFIRMED.

            Defendants-appellants Devon Patterson and Michael

Massey appeal from their judgments of conviction for bank robbery

in violation of 18 U.S.C. § 2113(a) and (d), and bank robbery and

possession of a firearm in furtherance of a crime of violence in

violation of 18 U.S.C. §§ 2113(a), (d), and 924(c)(1)(A),

respectively.    We assume the parties' familiarity with the

largely undisputed facts and procedural history of this case,

which we reference only as necessary to explain our decision.

            On September 22, 2008, two men committed an armed

robbery of the Naugatuck Valley Savings and Loan in Naugatuck,

Connecticut.    While one robber guarded the lobby, brandishing his

firearm, the other filled a bag with approximately $24,100.     The

robbers then fled the scene.

            Minutes later, a patrol officer saw two men matching

the robbers' description driving in the near vicinity of the

crime.   These two men were later identified as defendants

Patterson and Massey.    The officer attempted to pull defendants

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over, and a high-speed car chase ensued.    The chase ended when

defendants crashed into a telephone pole.    Defendants were

arrested, and police recovered the following evidence from the

car:   a handgun; $24,307 in cash; money bands from the bank;

"bait money" -- bills directly traceable to the bank through

their pre-recorded serial numbers; and various items of clothing

defendants wore during the robbery.

           On February 16, 2009, Massey moved to suppress his

post-arrest statements to the police, alleging they were obtained

after he invoked his Fifth Amendment right to counsel.     After two

evidentiary hearings and oral arguments, the district court

denied Massey's motion to suppress, concluding that the

government satisfied its burden of proving that Massey did not

invoke his right to remain silent or his right to counsel before

his confession.   On December 11, 2009, after reopening the issue

and offering both sides the opportunity for additional argument,

the district court again denied Massey's motion.

           On December 14, 2009, the first day of trial, Patterson

pled guilty.   At his sentencing, Patterson argued for a Criminal

History Category ("CHC") of III, claiming that a CHC of IV

overstated the seriousness of his past criminal conduct.       He also

argued for a reduced sentence to account for his emotional and

mental conditions.   The district court concluded, inter alia,
that a CHC of IV did not substantially overrepresent the

seriousness of Patterson's criminal history, and that Patterson's

mental and emotional conditions did not warrant a lesser

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sentence.    On November 8, 2010, Patterson was sentenced

principally to a term of 135 months' imprisonment.

            On December 16, 2009, a jury convicted Massey of bank

robbery and possession of a firearm in furtherance of a crime of

violence.    On April 15, 2010, Massey was sentenced principally to

a term of 152 months' imprisonment.

            Defendants filed timely appeals.
I.   Patterson

            On appeal, Patterson argues that his sentence was

procedurally and substantively unreasonable because the district

court failed to consider, resolve, and make factual findings with

respect to Patterson's claims that a CHC of IV overstated his

past criminal conduct and that his emotional and mental

conditions warranted a reduced sentence.

            A district court's sentencing determination is reviewed

under a "deferential" abuse of discretion standard.      Gall v.

United States, 552 U.S. 38, 41, 51 (2007); United States v.

Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc), cert. denied,
129 S. Ct. 2735 (2009).     A sentence must be procedurally and

substantively reasonable.    Gall, 552 U.S. at 51.    A sentence is

procedurally unreasonable if a district court committed a

"significant procedural error," such as improperly calculating

the guidelines range, failing to consider the factors set forth

in 18 U.S.C. § 3553(a), or selecting a sentence based on clearly

erroneous facts.   Id.    A sentence is substantively unreasonable

only in "exceptional cases," where the district court's decision

is beyond "the range of permissible decisions."      Cavera, 550 F.3d

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at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d

Cir. 2007)).

           Here, the district court had no obligation to expressly

address every argument raised by Patterson at sentencing.   See
United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010), cert.

denied, 131 S. Ct. 1698 (2011).    Even so, the district court did

address Patterson's two claims.    Based on our review of the

record, we conclude that Patterson's sentence was not

procedurally or substantively unreasonable.    Indeed, as the

district court explained, Patterson committed a violent bank

robbery, his partner brandished a firearm, and the two were

involved in a high-speed car chase that ended in a crash.

Patterson's sentence of 135 months' imprisonment was well within

the range of permissible sentences.    Accordingly, Patterson's

claims fail.
II.   Massey

           On appeal, Massey principally argues that the district

court committed reversible error in concluding that he had not
yet invoked his right to counsel when he made incriminating post-

arrest statements to the police.

           This Court reviews factual determinations in connection

with a motion to suppress for clear error, viewing the evidence

in the light most favorable to the government.   United States v.

Whitten, 610 F.3d 168, 193 (2d Cir. 2010).    A factual finding is

clearly erroneous when "the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed."   United States v. Iodice, 525 F.3d

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179, 185 (2d Cir. 2008) (internal quotations omitted).    A

district court's credibility determination is given particularly

strong deference, and there is no clear error when there are two

permissible views of the evidence.   See id.   Furthermore, even if

a district court erroneously admits evidence obtained in

violation of the Constitution, reversal by our Court is

unwarranted when that error was harmless beyond a reasonable

doubt.   United States v. Newton, 369 F.3d 659, 679 (2d Cir.

2004).

           Here, the district court diligently held two

evidentiary hearings and two oral arguments, and then reopened

the suppression hearing for additional argument.   There was no

clear error because, after carefully reviewing the record of

evidence, the district court made a permissible credibility

determination, crediting the consistent testimony of four police

officers as to the timing of Massey's confession and finding that

the government satisfied its burden.   Further, even assuming

there was error, it was harmless beyond a reasonable doubt

because, even without Massey's statements, there was overwhelming

evidence to convict him, including the physical evidence found in

the car.   Indeed, as the district court found, Massey and

Patterson were caught red-handed with the money from the bank

robbery, including the "bait money."   Accordingly, Massey's claim

fails.




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                           CONCLUSION

          We have considered Massey and Patterson's other

arguments and conclude they are without merit.   Accordingly, the

judgments of the district court are AFFIRMED.

                              FOR THE COURT:
                              CATHERINE O'HAGAN WOLFE, CLERK




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