08-6223-cr
United States v. Liggins


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NO T 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 SUM M ARY ORDER IN A
DO CUM ENT FILED W ITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH 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 11th day of January, two thousand ten.

PRESENT:         PIERRE N. LEVAL,
                 PETER W. HALL,
                 DEBRA A. LIVINGSTON,
                                  Circuit Judges.

_______________________________________________________

United States of America,
                                               Appellee,

                           v.                                               No. 08-6223-cr

Durrell Liggins, a/k/a/ Nature Boy, a/k/a/ CEO,

                                    Defendant-Appellant.
________________________________________________________

For Appellant:                   LAURIE S. HERSHEY , Manhasset, New York.

For Appellee:                    ANDREW T. BAXTER, United States Attorney, John M. Katko and
                                 Elizabeth S. Riker, Assistant United States Attorneys, Northern
                                 District of New York.
          Appeal from a judgment of the United States District Court for the Northern District of

New York (Hurd, J.), following the defendant’s guilty plea. UPON DUE CONSIDERATION,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district

court is AFFIRMED.

          Defendant-appellant Durrell Liggins appeals from a judgment of the United States

District Court for the Northern District of New York (Hurd, J.), following his guilty plea. The

District Court sentenced Liggins principally to 180 months imprisonment. We assume the

parties’ familiarity with the factual and procedural history of the case, as well as the issues on

appeal.

          Liggins first challenges the district court’s application of a four-level role enhancement to

the calculation of his offense level under the United States Sentencing Guidelines. U.S.S.G. §

3B1.1(a) provides for a four-level enhancement if a defendant “was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. §

3B1.1(a). “Before imposing a role adjustment, the sentencing court must make specific findings

as to why a particular subsection of § 3B1.1 adjustment applies.” United States v. Ware, 577

F.3d 442, 451 (2d Cir. 2009); see also United States v. Espinoza, 514 F.3d 209, 212 (2d Cir.

2008), cert. denied, --- U.S. ---, 128 S.Ct. 2458 (2008); United States v. Molina, 356 F.3d 269,

275 (2d Cir. 2004); United States v. Patasnik, 89 F.3d 63, 68 (2d Cir. 1996) (“A court must . . .

make two specific factual findings before it can properly enhance a defendant’s offense level

under § 3B1.1(a): (i) that the defendant was ‘an organizer or leader,’ and (ii) that the criminal

activity either ‘involved five or more participants’ or ‘was otherwise extensive.’”). Liggins does

not dispute that the drug conspiracy for which he was found guilty involved five or more


                                                    2
participants. He argues only that the district court failed to make specific findings as to whether

he was an “organizer or leader.” We are not persuaded.

       “[W]e review a district court’s determination that a defendant deserves a leadership

enhancement under § 3B1.1 de novo, but we review the court’s findings of fact supporting its

conclusion only for clear error.” United States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009).

We identify no such error in this case. The following facts support the court’s finding that the

four-step increase in offense level was warranted. In his plea agreement, Liggins admitted that

he was an “upper level dealer who supplied other co-conspirator dealers and also sold directly to

others.” The following exchange occurred at Liggins’s plea colloquy:

               THE COURT: So you admit to being one of the upper-level people in this
               conspiracy, in this drug operation, Mr. Liggins?
               LIGGINS: Yes, sir.
               THE COURT: You do?
               LIGGINS: Yes, sir.

In addition, the sentencing court explicitly adopted the factual statements in the presentence

report (“PSR”), both at the time of sentencing and in its written judgment, see Sentencing Tr. at

4:2-6, thereby satisfying the requirements of § 3553(c). See Molina, 356 F.3d at 275-76. Though

adoption of the PSR does not suffice if the PSR itself does not state enough facts to permit

meaningful appellate review, Ware, 577 F.3d at 452, that is not the case here. Based upon results

of an extensive investigation by the F.B.I. involving informants, cooperating witnesses, and wire

intercepts of various members of the organization, the PSR establishes inter alia that Liggins had

authority over individuals involved in the drug trafficking organization and recruited at least one

other member, was a leader along with a co-defendant who ran the group, and used violence to

threaten a subordinate who owed him money.


                                                 3
       Liggins’s second challenge to his sentence is an attack on its reasonableness under United

States v. Booker, 543 U.S. 220, 261 (2005). He argues that the district court abused its discretion

in sentencing him to 180 months imprisonment because the court based its sentence on two

erroneous conclusions: (i) that Liggins and his co-defendant “belonged in the same category” for

sentencing purposes; and (ii) that Liggins “had shown no remorse for his crimes.”

       Under Booker, 543 U.S. 220, we review sentences for reasonableness. See also United

States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007). We review the substantive reasonableness

of a sentence under an abuse-of-discretion standard, and will “set aside a district court’s

substantive determination only in exceptional cases where the trial court’s decision cannot be

located within the range of permissible decisions.” United States v. Rigas, 583 F.3d 108, 121-22

(2d Cir. 2009); United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation

marks omitted). In “conducting substantive review, we take into account the totality of the

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing

in mind the institutional advantages of district courts.” Id. at 190 (citing Rita v. United States,

551 U.S. 334, 354 (2007)). The district court’s factual findings are reviewed for clear error.

United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).

       Liggins’s arguments are without merit. The court did not clearly err in finding that

Liggins lacked remorse. Nor did the court err in finding that Liggins and his co-defendant

“belonged in the same category.” Considering these factors and the totality of the circumstances,

we find that the sentence imposed was reasonable.

       We have reviewed Liggins’ remaining arguments and find them to be without merit.




                                                  4
                               CONCLUSION

For the reasons stated above, the judgment of the district court is AFFIRMED.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk

                                           By:_______________________




                                       5
