13-54-cr(L)
United States v. Gilliam

                                    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 31st
day of October, two thousand fourteen.

PRESENT:             RALPH K. WINTER,
                     JOHN M. WALKER, JR.,
                     JOSÉ A. CABRANES,
                                  Circuit Judges.


UNITED STATES OF AMERICA,

                     Appellee,

                               v.                                                      No. 13-54-cr(L)
                                                                                       No. 13-875-cr(CON)
ANTHONY GILLIAM, AKA FLAC, JOSEPH REYES,                                               No. 13-948-cr(CON)
AKA FAT JOE, AKA RJ, RICHARD DANIELS, AKA WAP,                                         No. 13-1093-cr(CON)
AKA PO, STEFAN WINSTON, AKA CUDA, AKA POOH,

                     Defendants-Appellants,

LAKESHA BOWLES, RALPH CORA, AKA PETEY,
AKA PITO, RAQIESHA DAVIS, AKA BROOKLYN,
SAMANTHA FOGLE, PETER JOHNSON, JUAN NIEVES,
ALEXIS RAMOS, AKA SNAKE RATTLE, ERNEST
WILLIAMSON, AKA TWIN, AKA HARLEM, JONATHAN
WILLIAMSON, AKA RUE, ANGEL MILLAN, AKA STONEY,

                     Defendants.*


          *   The Clerk of Court is directed to amend the official caption in this case to conform with the caption above.
FOR ANTHONY GILLIAM:                                             Dan E. LaBelle, Halloran & Sage, LLP,
                                                                 Westport, CT.

FOR JOSEPH REYES:                                                ROBERT J. SULLIVAN, JR., Westport, CT.

FOR RICHARD DANIELS:                                             ROBERT F. KAPPES (John Thomas Walkley,
                                                                 Milford, CT, on the brief), Silvester & Kappes,
                                                                 New London, CT.

FOR STEFAN WINSTON:                                              JAMES E. SWAINE, Hamden, CT.

FOR UNITED STATES OF AMERICA:                                    TRACY L. DAYTON (Douglas P. Morabito,
                                                                 Sandra S. Glover, on the brief), Assistant United
                                                                 States Attorneys, for Deirdre M. Daly, United
                                                                 States Attorney for the District of
                                                                 Connecticut, Bridgeport, CT.

      Appeal from judgments of conviction of the United States District Court for the District of
Connecticut (Janet Bond Arterton, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the District Court are AFFIRMED.

         Defendants Joseph Reyes and Richard Daniels appeal from the District Court’s March 6,
2013 judgments of conviction, after a jury trial, for conspiracy to possess with intent to distribute
one kilogram or more of heroin and 280 grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846, and conspiracy to maintain a drug-involved premises within
1,000 feet of a public housing facility, in violation of 21 U.S.C. §§ 846 and 860, and sentencing them
principally to 300 months’ imprisonment and 228 months’ imprisonment, respectively.1 Defendant
Stefan Winston appeals from the District Court’s February 20, 2013 judgment of conviction, after a
guilty plea, for conspiracy to possess with intent to distribute one kilogram or more of heroin and 28
grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and
sentencing him principally to 165 months’ imprisonment. Counsel for defendant Anthony Gilliam
moves to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and the
Government moves to dismiss Gilliam’s appeal. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

                                                 I. Anders Motion

        On March 29, 2012, Gilliam entered a written plea agreement pursuant to which he agreed
“not to appeal or collaterally attack in any proceeding . . . the conviction or sentence imposed by the


         1 Reyes was also convicted of one count of possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922 (g)(1) and 924(a)(2), but does not contest that count on appeal.

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Court if that sentence does not exceed 96 months, a one-year term of supervised release, and
$100,000 fine.” We agree with Gilliam’s counsel and the Government that there is no non-frivolous
argument why this waiver should not be enforced, and Gilliam has not sought new counsel or filed a
pro se response. Accordingly, we grant the Anders motion of Gilliam’s counsel and the Government’s
motion to dismiss Gilliam’s appeal.

                                    II. Sufficiency of the Evidence

          “We review de novo a challenge to the sufficiency of the evidence.” United States v. Yannotti,
541 F.3d 112, 120 (2d Cir. 2008). “A defendant challenging his conviction on sufficiency grounds
faces a ‘heavy burden.’” United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000) (quoting United States v.
Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). This is because the court must “review the evidence in
the light most favorable to the government, drawing all reasonable inferences in its favor.” United
States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004). We reverse “only if no rational factfinder could
have found the crimes charged proved beyond a reasonable doubt.” Id. at 459–60; see generally Jackson
v. Virginia, 443 U.S. 307, 319 (1979).

          Upon review of the record and relevant law, we conclude that the evidence was more than
sufficient to support the convictions of Reyes and Daniels. At trial, six witnesses, including co-
conspirators, drug suppliers, and drug buyers, testified to the existence of a vast narcotics
distribution conspiracy operated and led by Reyes and Daniels. Furthermore, evidence from DEA
agents, chemists, and cooperating witnesses supported the jury’s finding that Reyes and Daniels
knew, or reasonably foresaw, that the conspiracy, which spanned hundreds of transactions over
several months, involved at least one kilogram of heroin and 280 grams of cocaine base. See United
States v. Pressley, 469 F.3d 63, 65 (2d Cir. 2006) (“Within the context of a conspiracy to distribute
large amounts of narcotics, these subsidiary crimes may take the form of a series of smaller drug
sales.”). Accordingly, in viewing the evidence “in its totality and in the light most favorable to the
government,” a rational jury could have found the essential elements of the charged conspiracy
beyond a reasonable doubt. United States v. Mandell, 752 F.3d 544, 549 (2d Cir. 2014).

                                         III. Jury Instructions

        Where, as here, a defendant does not object to a jury instruction at trial, we review only for
plain error. See Fed. R. Crim. P. 30(d), 52(b). Under plain error review, “an appellate court may, in its
discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is
an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error
‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome
of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Marcus, 560 U.S. 258, 262 (2010).




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        Upon plain error review, we conclude that the District Court’s jury instructions as to
quantity were not in “error,” much less “clear or obvious” error. Id. The jury instructions expressly
stated that the Government had the burden of establishing the type and amount of drugs “beyond a
reasonable doubt.” The instructions made clear that the jury was to consider quantity only after “the
first two elements have been established,” and that “[a]s with any element of the charged
conspiracy” the jury should not engage in guesswork or speculation. On this record, we cannot say
that the instructions inadequately informed the jury that quantity was an element of the offense.

                                IV. Defendants’ Motion for a Mistrial

          We review a district court’s denial of a motion for a mistrial for abuse of discretion. United
States v. Rodriguez, 587 F.3d 573, 583 (2d Cir. 2009). “The decision to declare a mistrial is left to the
‘sound discretion’ of the judge, but ‘the power ought to be used with the greatest caution, under
urgent circumstances, and for very plain and obvious causes.’” Renico v. Lett, 559 U.S. 766, 774
(2010).

        We conclude that the District Court was well within its discretion in denying defendants’
motion for a mistrial. The District Court quickly issued a curative instruction to the jury after the
Government unintentionally elicited testimony regarding an incident in which Reyes discharged a
handgun at a co-conspirator. The testimony was ordered stricken from the record, and, in view of
the overwhelming evidence against defendants, there is no showing of prejudice. Accordingly, the
District Court’s denial of defendants’ motion for a mistrial was not an abuse of discretion.

                                             V. Sentencing

         We review criminal sentences for “reasonableness” under a deferential abuse-of-discretion
standard. United States v. Cavera, 550 F.3d 180, 189–90 (2d Cir. 2008) (en banc). A sentence is
procedurally unreasonable if the district court “fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain
the chosen sentence.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks
omitted). “Determining drug quantity is a task for the sentencing court, and in performing that task
it is not bound by jury findings or evidence presented at trial, but may consider any reliable proof.”
United States v. Shonubi, 998 F.2d 84, 89 (2d Cir. 1993) (internal citations omitted).

        As stated above, ample evidence supported the jury’s finding that Reyes and Daniels each
knew, or reasonably foresaw, that the conspiracy involved one kilogram or more of heroin and 280
grams or more of cocaine base. Accordingly, the District Court properly calculated the quantity
attributable each to Reyes and Daniels at sentencing.




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        The District Court also properly considered the factors set forth in 18 U.S.C. § 3553(a) in
imposing Winston’s below-guidelines sentence of 165 months’ imprisonment. At sentencing, the
District Court explicitly considered and rejected Winston’s criminal history and sentencing parity
arguments, emphasizing the nature of the offense and Winston’s violent criminal history. The
District Court was not required to “utter robotic incantations repeating each factor that motivates a
sentence.” United States v. Park, 758 F.3d 193, 197 (2d Cir. 2014) (internal quotation marks omitted).

                                          CONCLUSION

        We have considered all of the arguments raised by defendants on appeal and find them to be
without merit. For the reasons stated above, we GRANT the Anders motion of Gilliam’s counsel to
be relieved as counsel and the Government’s motion to dismiss Gilliam’s appeal, and AFFIRM the
District Court’s February 20, 2013 and March 6, 2013 judgments as to Reyes, Daniels, and Winston.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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