         09-1736-cr(L)
         United States v. Gjuraj (Simms)


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                RAYMOND J. LOHIER, Jr.,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                        09-1736-cr(L)
17                                                                09-3530-cr(CON)
18                                                                09-3466-cr(CON)
19       ARBNOR GJINI, also known as Cookie,
20       RICHARD DAVIS, also known as Poo Poo,
21       also known as Shooter, also known as
22       Buck, ANTONIO ROBINSON, also known as
23       Biggie Smalls, also known as Dave,
24       TONY DeJESUS, JERRYL SNIDER, also
25       known as Shitty, also known as
26       Broadway, also known as Leroy,
27       TRAYSON STEVENS, also known as Mitch,
28       also known as Tray 8, also known as
29       Jay, STACEY GOSS, also known as
 1   Binky, SASHA KOPPEL, DONDON FLETCHER,
 2   also known as Yellow, BRENT MENSKEY,
 3   JOY YOUNG, also known as Petta, also
 4   known as G.P., ALAN DONALD, also
 5   known as Bo Donald, LAVAUGHN BROWN,
 6   also known as Vaughny, MIKE PETERS,
 7   BILL BOLLMANN, JOHN GODWIN, DAVID
 8   KARP, DAVID PETERS, LUIS SERRANO,
 9   DAVID WALSH, also known as Caddy, and
10   PATRICK SMITH,
11            Defendants,
12
13   TRAVIS SIMMS, also known as Tray Lo,
14   also known as Love, and ISNI GJURAJ,
15            Defendants-Appellants.
16   - - - - - - - - - - - - - - - - - - - -X
17
18   FOR APPELLANT GJURAJ:   David S. Hammer, Esq., New York, New
19                           York.
20
21   FOR APPELLANT SIMMS:    Jane Simkin Smith, Millbrook, New
22                           York.
23
24   FOR APPELLEE:           Elizabeth A. Latif, Assistant United
25                           States Attorney (Sandra S. Glover,
26                           Assistant United States Attorney, on
27                           the brief), for David B. Fein,
28                           United States Attorney for the
29                           District of Connecticut.
30
31        Appeals from judgments of conviction in the United
32   States District Court for the District of Connecticut
33   (Kravitz, J.).
34
35        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
36   AND DECREED that the judgment of the district court be
37   AFFIRMED as to Defendant-Appellant Isni Gjuraj and that the
38   judgment of the district court be REMANDED as to Defendant-
39   Appellant Travis Simms.
40
41        Defendant-Appellant Isni Gjuraj (“Gjuraj”) appeals on
42   multiple grounds his conviction and sentence for retaliating
43   against a witness, in violation of 18 U.S.C.

                                   2
 1   §§ 1513(a)(1)(B) and 1513(a)(2)(B); conspiracy to distribute
 2   and to possess with intent to distribute fifty grams or more
 3   of cocaine base, in violation of 21 U.S.C. §§ 846,
 4   841(a)(1), and 841(b)(1)(A)(iii); and a Hobbs Act robbery,
 5   in violation of 18 U.S.C. § 1951. Defendant-Appellant
 6   Travis Simms (“Simms”) appeals from the judgment of
 7   conviction entered on April 15, 2009, on the grounds that
 8   (i) the district court did not understand its discretion to
 9   impose a sentence concurrent to Simms’s state sentence, and
10   (ii) his counsel was ineffective.
11
12        We assume the parties’ familiarity with the underlying
13   facts, the procedural history, and the issues presented for
14   review.
15
16   Gjuraj
17
18   [1] Gjuraj was sentenced to 320 months’ imprisonment on the
19   witness retaliation charge. At the time Gjuraj committed
20   the offense (December 24, 2007), the statutory maximum was
21   twenty years. (The maximum increased to thirty years in
22   January 2008.) However, because Gjuraj did not object to
23   his sentence when it was imposed, we review for plain error.
24   Under plain error review, “an appellate court may, in its
25   discretion, correct an error not raised at trial only where
26   the appellant demonstrates that (1) there is an ‘error’; (2)
27   the error is ‘clear or obvious, rather than subject to
28   reasonable dispute’; (3) the error ‘affected the appellant’s
29   substantial rights, which in the ordinary case means’ it
30   ‘affected the outcome of the district court proceedings’;
31   and (4) ‘the error seriously affect[s] the fairness,
32   integrity or public reputation of judicial proceedings.’”
33   United States v. Marcus, 130 S. Ct. 2159, 2164 (2010)
34   (quoting Puckett v. United States, 129 S. Ct. 1423, 1429
35   (2009)). To “affect substantial rights,” an error must have
36   caused prejudice and affected the outcome of the district
37   court proceedings. United States v. Olano, 507 U.S. 725,
38   734 (1993). On plain error review, “[i]t is the defendant
39   rather than the Government who bears the burden of
40   persuasion with respect to prejudice.” Id.
41
42        The district court indisputably erred in imposing a
43   320-month sentence. However, because Gjuraj received a
44   concurrent 320-month sentence on the narcotics distribution

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 1   charge, Gjuraj fails to show that the error affected his
 2   substantial rights or the “fairness, integrity or public
 3   reputation of judicial proceedings.” Puckett, 129 S. Ct. at
 4   1429 (internal quotation marks omitted); see United States
 5   v. Outen, 286 F.3d 622, 640 (2d Cir. 2002) (“[A]n erroneous
 6   sentence on one count of a multiple-count conviction does
 7   not affect substantial rights where the total term of
 8   imprisonment remains unaffected . . . .”); see also United
 9   States v. Samas, 561 F.3d 108, 111 (2d Cir. 2009) (per
10   curiam) (“Even if the district court erroneously imposed
11   sentences of 151 months on Counts Two, Three, and Five,
12   Samas cannot show (as he must for plain error review) that
13   the error affected his substantial rights, because those
14   sentences are to run concurrently with the mandatory minimum
15   sentence of 240 months on Count Four.”).
16
17   [2] Gjuraj contends that his guilty plea was invalid
18   because there was no factual basis at, or prior to, the plea
19   that the victim cooperated with federal agents. Where, as
20   here, a defendant challenges the validity of his guilty plea
21   for the first time on appeal, this Court reviews for plain
22   error. See United States v. Dominguez Benitez, 542 U.S. 74,
23   80-84 (2004). Fed. R. Crim. P. 11 requires the court to
24   “assure itself . . . that the conduct to which the defendant
25   admits is in fact an offense under the statutory provision
26   under which he is pleading guilty.” United States v. Maher,
27   108 F.3d 1513, 1524 (2d Cir. 1997). Rule 11 “does not
28   specify that any particular type of inquiry be made . . . .
29   An inquiry might be made of the defendant, of the attorneys
30   for the government and the defense, of the presentence
31   report when one is available, or by whatever means is
32   appropriate in a specific case.” Id. (citing Fed. R. Crim.
33   P. 11 Advisory Committee Notes (1974)).
34
35        Section 1513(a)(1)(B) provides for the punishment of
36   anyone who “kills or attempts to kill another person with
37   intent to retaliate against any person for-- (B) providing
38   to a law enforcement officer any information relating to the
39   commission or possible commission of a Federal offense . . .
40   .” 18 U.S.C. § 1513(a)(1)(B). “Law enforcement officer” is
41   defined in the statute as “an officer or employee of the
42   Federal Government, or a person authorized to act for or on
43   behalf of the Federal Government or serving the Federal
44   Government as an adviser or consultant.” 18 U.S.C.

                                  4
 1   § 1515(a)(4). In United States v. Draper, we clarified
 2   that, even if it is established that the information the
 3   witness divulged “to law enforcement authorities [related
 4   to] a federal offense,” the statute requires proof of a
 5   further element, namely, that those law enforcement
 6   authorities “were federal agents.” 553 F.3d 174, 180 (2d
 7   Cir. 2009).
 8
 9        Although no record evidence existed at the time of
10   Gjuraj’s plea establishing that the victim provided
11   information to federal authorities, the presentence report
12   (compiled after the plea) indicates that the Federal Bureau
13   of Investigation and state police were conducting a joint
14   investigation of narcotics trafficking in several
15   Connecticut cities. “[T]he existence of a factual basis for
16   the plea is determined on the basis of the record as of the
17   plea proceeding . . . .” United States v. Garcia, 587 F.3d
18   509, 520 (2d Cir. 2009). However, when we review for plain
19   error, we “assess[] whether the error affects substantial
20   rights, [and] the record as a whole becomes relevant . . . .
21   [including] evidence placed in the record after the plea . .
22   . .” Id. at 520-21 (internal citations omitted). For that
23   assessment, we consult the entire record, including the
24   factual statements in Gjuraj’s presentence report. The
25   record discloses a sufficient factual basis to satisfy the
26   third Draper element.
27
28   [3] Gjuraj raises a jurisdictional challenge to the
29   Information charging him with robbery under the Hobbs Act.
30   Gjuraj argues that there was insufficient proof as to the
31   interstate commerce element. A guilty plea “waives all
32   challenges to prosecution except those going to the court’s
33   jurisdiction.” United States v. Lasaga, 328 F.3d 61, 63 (2d
34   Cir. 2003). The alleged jurisdictional defect must “go to
35   the court’s power to entertain the prosecution,” not to “the
36   government’s ability to prove its case.” Hayle v. United
37   States, 815 F.2d 879, 882 (2d Cir. 1987). “If the
38   indictment alleges all of the statutory elements of a
39   federal offense and the defendant’s contention is that in
40   fact certain of those elements are lacking, the challenge
41   goes to the merits of the prosecution, not to the
42   jurisdiction of the court to entertain the case or to punish
43   the defendant if all of the alleged elements are proven.”
44   Id. at 882. Accordingly, after a guilty plea,

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 1   “jurisdiction” can be challenged only if “the face of the
 2   indictment discloses that the count or counts to which he
 3   pleaded guilty failed to charge a federal offense.” Id. at
 4   881; see also Maher, 108 F.3d at 1529 (where defendant
 5   pleads guilty, this Court “will not entertain a challenge to
 6   the sufficiency of the evidence”).
 7
 8        Gjuraj’s argument is further foreclosed by his
 9   admissions during his allocution that he traveled with his
10   co-conspirator to New Jersey “with the intent and knowledge
11   that a robbery was going to be committed,” and that he and
12   the co-conspirator went afterward to New York’s Diamond
13   District to dispose of the jewelry stolen from the robbery.
14   Accordingly, his jurisdictional and Rule 11(b)(3) challenges
15   to the Hobbs Act charge fail.
16
17   [4] Gjuraj raises several procedural challenges to his
18   sentence, all of them without merit. He argues that: (1)
19   the district court erred by using the incorrect Guideline in
20   sentencing him on the witness retaliation charge, (2) the
21   district court did not consider certain § 3553(a) factors
22   (specifically his personal characteristics), and
23   impermissibly considered the impact on the victims, and (3)
24   the district court failed to recognize its ability to depart
25   from the crack/powder ratio set forth in the Guidelines.
26
27        We review a district court’s sentencing decision for
28   reasonableness. See United States v. Booker, 543 U.S. 220,
29   260-62 (2005). When a defendant fails to preserve an
30   objection to the procedural reasonableness of a sentence, we
31   review for plain error. See United States v. Verkhoglyad,
32   516 F.3d 122, 128 (2d Cir. 2008).
33
34        With respect to the Guideline calculation, the district
35   court properly applied the Guideline applicable to Gjuraj’s
36   actual conduct--here, attempted murder--which was more
37   serious than his offense of conviction. Gjuraj assented to
38   the statement of facts set forth in the stipulation of
39   offense conduct, which established all the elements of
40   attempted murder. His plea of guilty thus “contain[ed] a
41   stipulation that specifically establishe[d] a more serious
42   offense than the offense of conviction.” U.S. Sentencing
43   Guidelines Manual § 1B1.2(a). Accordingly, as directed by
44   that Guideline, the district court properly used § 2A2.1,

                                  6
 1   the Guideline applicable to the offense of attempted murder.
 2        The record establishes that the district court
 3   acknowledged all of the § 3553(a) factors when it sentenced
 4   Gjuraj. Moreover, the district court took into account
 5   Gjuraj’s personal characteristics, considered his
 6   background, and read letters from Gjuraj’s friends and
 7   family. The district court referenced the impact on the
 8   victims in its discussion of the relevant facts, consistent
 9   with its obligation to consider the nature and circumstances
10   of the offense under § 3553(a). But, contrary to Gjuraj’s
11   argument, the court did not depart upwardly on the basis of
12   the victim impact.
13
14        Finally, the record reflects that the district court
15   understood its ability to depart from the 100 to 1
16   crack/powder ratio in the Guidelines. The district court’s
17   lengthy discussion of the disparity indicates that it
18   appreciated its discretion. The imposition of a sentence
19   that was only four months below the sentence recommended by
20   the 100 to 1 Guideline does not mean that the district court
21   failed to understand its discretion.
22
23        The district court committed no plain error in
24   sentencing Gjuraj.
25
26   Simms
27
28   [1] Simms argues that the district court erroneously failed
29   to recognize that it had the authority under both 18 U.S.C.
30   § 3584 and U.S.S.G. § 5G1.3 to recommend that Simms’s
31   sentence run either partially concurrently, concurrently, or
32   consecutively to his imposed (but undischarged) state
33   sentence. The record indicates the district court was
34   uncertain as to whether it had the discretion to impose a
35   concurrent sentence to Simms’s state sentence.
36
37        In order to address Simms’s argument, it is necessary
38   to set forth the text of the statute and the Sentencing
39   Guideline that confer authority to impose a concurrent
40   sentence to an undischarged state sentence.
41
42       Section 3584(a) of Title 18 provides:
43
44       (a) Imposition of concurrent or consecutive terms.--If

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 1       multiple terms of imprisonment are imposed on a
 2       defendant at the same time, or if a term of
 3       imprisonment is imposed on a defendant who is already
 4       subject to an undischarged term of imprisonment, the
 5       terms may run concurrently or consecutively . . . .
 6       Multiple terms of imprisonment imposed at different
 7       times run consecutively unless the court orders that
 8       the terms are to run concurrently.
 9
10   18 U.S.C. § 3584(a). Section 5G1.3(c) of the Sentencing
11   Guidelines provides as follows:
12
13       (c) (Policy Statement) In any other case involving an
14       undischarged term of imprisonment, the sentence for the
15       instant offense may be imposed to run concurrently,
16       partially concurrently, or consecutively to the prior
17       undischarged term of imprisonment to achieve a
18       reasonable punishment for the instant offense.
19
20   U.S. Sentencing Guidelines Manual § 5G1.3(c).   And,
21   Application Note 3(C) of § 5G1.3 states:
22
23       (C) Undischarged Terms of Imprisonment Resulting from
24       Revocations of Probation, Parole or Supervised
25       Release.--Subsection (c) applies in cases in which the
26       defendant was on federal or state probation, parole, or
27       supervised release at the time of the instant offense
28       and has had such probation, parole, or supervised
29       release revoked. Consistent with the policy set forth
30       in Application Note 4 and subsection (f) of § 7B1.3
31       (Revocation of Probation or Supervised Release), the
32       Commission recommends that the sentence for the instant
33       offense be imposed consecutively to the sentence
34       imposed for the revocation.
35
36   U.S. Sentencing Guidelines Manual § 5G1.3 app. 3(C).
37
38        The plain language set out above demonstrates that the
39   district court had discretion to impose a concurrent
40   sentence, even though Simms’s state sentence had yet to
41   begin, because the sentence was (and remains) an
42   undischarged term of imprisonment. Accordingly, we remand
43   to the district court for clarification and, if necessary,
44   for further proceedings. If, on remand, the district court

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 1   indicates, either on the record or in a brief written
 2   statement, that it understood its authority and nevertheless
 3   would have imposed a consecutive sentence, then the district
 4   court need go no further. See United States v. Sanchez, 517
 5   F.3d 651, 669 (2d Cir. 2008) (remanding sentencing issue to
 6   district court for clarification). If the district court
 7   determines that the sentence was affected by its view that
 8   the sentence could not have been imposed to run concurrently
 9   with the state sentence, then it should vacate the sentence
10   and resentence in accord with 18 U.S.C. § 3553. “The
11   defendant’s presence is not required for the initial step at
12   which the court issues its clarification.” Sanchez, 517
13   F.3d at 669.
14
15        If resentencing is deemed appropriate, Application Note
16   3(C) of U.S.S.G. § 5G1.3, quoted above, should be kept in
17   mind.
18
19        Here, Simms committed the instant offense while serving
20   a five-year suspended sentence for an unrelated state crime.
21   The time-line of Simms’s conduct is as follows:
22
23       July 6, 2005: Simms arrested by state police for
24       narcotics possession;
25
26       April 25, 2006: Simms sentenced to five years suspended
27       sentence, five years probation;
28
29       May 29, 2007: Simms arrested by state police for
30       narcotics possession;
31
32       September 28, 2007: Simms arrested by state police for
33       sale of narcotics;
34
35       February 20, 2008: Simms arrested by federal
36       authorities for participation in the instant narcotics
37       conspiracy;
38
39       July 24, 2008: State court sentences Simms to one year
40       for May 2007 possession, to run concurrently with five
41       years for the September 28, 2007 sale; to run
42       concurrently with five years for his (previously
43       suspended) April 2006 sentence.
44

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 1   Since Simms committed the instant offense while serving a
 2   suspended sentence, and since a portion of his undischarged
 3   state sentence resulted from revocation of his suspended
 4   sentence, the Commission’s recommendation is that the
 5   district court impose a consecutive sentence.
 6
 7   [2] Simms argues that, by reason of ineffective assistance,
 8   he entered into a plea agreement which forbade him from
 9   seeking a non-guidelines sentence. In addition, he claims
10   that his counsel’s lack of familiarity with the relevant
11   statutes and guidelines resulted in his state and federal
12   sentences running consecutively.
13
14        When an ineffective assistance claim is raised on
15   direct appeal, we have three options: “(1) decline to hear
16   the claim, permitting the appellant to raise the issue as
17   part of a subsequent [28 U.S.C.] § 2255 petition; (2) remand
18   the claim to the district court for necessary fact-finding;
19   or (3) decide the claim on the record before us.” United
20   States v. Hasan, 586 F.3d 161, 170 (2d Cir. 2009) (brackets
21   in original). Because we are remanding to the district
22   court for clarification as to Simms’s sentence, we decline
23   to address Simms’s ineffective assistance claim at this
24   time.
25
26        We have considered Appellants’ remaining arguments and
27   find them to be without merit. For the foregoing reasons,
28   the judgment of conviction as to Gjuraj is AFFIRMED, and the
29   judgment of conviction as to Simms is REMANDED for further
30   proceedings.
31
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35
36
37




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