     09-3527
     USA v. Spears



                          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 7 th day of September, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                REENA RAGGI,
 9                         Circuit Judge,
10                JED S. RAKOFF,
11                         District Judge. *
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                         09-3527-cr
19
20       TREVOR SPEARS, also known as Bunji,
21       also known as Vegas, also known as
22       Lunch-Box,


                *
               District Judge Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.

                                                  1
 1
 2            Defendant-Appellant.
 3   - - - - - - - - - - - - - - - - - - - -X
 4
 5   FOR APPELLANT:    Michael Young (Lisa Scolari, Law Office
 6                     of Lisa Scolari, on the brief), New York,
 7                     NY.
 8
 9   FOR APPELLEE:     James P. Loonam, Assistant United States
10                     Attorney (Jo Ann M. Navickas and Daniel
11                     S. Silver, Assistant United States
12                     Attorneys, on the brief), for Loretta E.
13                     Lynch, United States Attorney for the
14                     Eastern District of New York, United
15                     States Attorney’s Office for the Eastern
16                     District of New York, Brooklyn, NY.
17
18        Appeal from a judgment of the United States District
19   Court for the Eastern District of New York (Ross, J.).
20
21        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22   AND DECREED that the judgment of the district court be
23   AFFIRMED.
24
25        Defendant-appellant Trevor Spears appeals from the
26   judgment of conviction entered by the United States District
27   Court for the Eastern District of New York (Ross, J.) ,
28   following a jury trial. We assume the parties’ familiarity
29   with the underlying facts, the procedural history, and the
30   issues presented for review.
31
32        [1] Spears argues that his use of a firearm in
33   relation to heroin dealing activity was double-counted.
34   That conduct formed the basis of his Count Five conviction
35   for a violation of 18 U.S.C. § 924(c)(1)(A)(i), for which
36   the district court sentenced Spears to 60 months of
37   imprisonment to run concurrently with all other terms of
38   imprisonment. That conduct also formed the basis of a two
39   level weapon enhancement in the advisory Guidelines
40   calculation of the sentence for the Count Four conviction,
41   pursuant to U.S.S.G. § 2D1.1(b)(1). Notwithstanding the
42   government’s contention, we identify no true waiver of this
43   argument precluding even plain error review. See United
44   States v. Quinones, 511 F.3d 289, 321 & n.21 (2d Cir. 2007).
45   Rather, we treat the unpreserved challenge as forfeited,
46   review for plain error, and find none.


                                  2
 1        Spears relies on Application Note 4 to U.S.S.G. §
 2   2K2.4, which provides in relevant part that “[i]f a sentence
 3   under [§ 924(c)] is imposed in conjunction with a sentence
 4   for an underlying offense, do not apply any specific offense
 5   characteristic for possession, brandishing, use, or
 6   discharge of an explosive or firearm when determining the
 7   sentence for the underlying offense.” U.S.S.G. § 2K2.4 cmt.
 8   n.4. However, this guidance becomes ambiguous--and
 9   certainly is not “clear or obvious,” United States v.
10   Deandrade, 600 F.3d 115, 119 (2d Cir. 2010) (internal
11   quotation marks omitted)--as to whether the two level weapon
12   enhancement for the underlying offense applies when the §
13   924(c) sentence is imposed concurrently pursuant to our
14   holdings in United States v. Whitley, 529 F.3d 150 (2d Cir.
15   2008), and United States v. Williams, 558 F.3d 166 (2d Cir.
16   2009). The Guidelines background commentary does not appear
17   to contemplate concurrent sentences:
18
19            A sentence imposed pursuant to [18 U.S.C. §
20            924(c)] must be imposed to run consecutively to
21            any other term of imprisonment. To avoid double
22            counting, when a sentence under this section is
23            imposed in conjunction with a sentence for an
24            underlying offense, any specific offense
25            characteristic for explosive or firearm discharge,
26            use, brandishing, or possession is not applied in
27            respect to such underlying offense.
28
29   U.S.S.G. § 2K2.4 cmt. background (emphasis added).
30   Accordingly, any error in applying the two level weapon
31   enhancement was not plain error. See United States v. Whab,
32   355 F.3d 155, 158 (2d Cir. 2004) (“For an error to be plain,
33   it must, at a minimum, be clear under current law. We
34   typically will not find such error where the operative legal
35   question is unsettled, including where there is no binding
36   precedent from the Supreme Court or this Court.” (internal
37   quotation marks and citations omitted)).
38
39        [2] Spears contends that the district court erred in
40   calculating the drug quantities attributable to him based on
41   speculation rather than specific evidence. But the
42   testimony of the cooperating witnesses on this issue is
43   based in part on personal observation and knowledge of
44   Spears’s drug dealing activities, and even the sharing of
45   customers between Spears and certain cooperators. Such
46   testimony is circumstantial evidence supporting the district
47   court’s quantity findings by a preponderance of the

                                  3
 1   evidence. See United States v. Jones, 531 F.3d 163, 175 (2d
 2   Cir. 2008); see also U.S.S.G. § 2D1.1 cmt. n.12.
 3
 4        [3] Spears challenges the reasonableness of his
 5   sentence based on the disparity between his sentence of 282
 6   months of imprisonment and the lower sentences imposed on
 7   his co-defendants. But a sentencing “disparity between non-
 8   similarly situated co-defendants is not a valid basis for a
 9   claim of error under 18 U.S.C. § 3553(a)(6).” United States
10   v. Fernandez, 443 F.3d 19, 28 (2d Cir. 2006). Each of the
11   six co-defendants cited by Spears pleaded guilty to one
12   count of heroin distribution conspiracy, whereas a jury
13   convicted Spears of seven narcotics counts and one firearm
14   count. Moreover, the district court made specific factual
15   findings regarding Spears’s “lengthy criminal history that
16   includes substantial violent criminality,” further
17   differentiating Spears from his co-defendants. We therefore
18   find no error in the procedural, see Fernandez, 443 F.3d at
19   30 (“[W]e presume, in the absence of record evidence
20   suggesting otherwise, that a sentencing judge has faithfully
21   discharged her duty to consider the statutory factors.”), or
22   substantive, see United States v. Cavera, 550 F.3d 180, 189
23   (2d Cir. 2008) (in banc) (“We will instead set aside a
24   district court’s substantive determination only in
25   exceptional cases where the trial court’s decision cannot be
26   located within the range of permissible decisions.”
27   (internal quotation marks omitted)), reasonableness of
28   Spears’s sentence.
29
30        [4] Spears concedes that the jury instruction
31   regarding school proximity for Counts Six and Seven--
32   charging violations of 21 U.S.C. § 860(a)--accords with
33   Second Circuit precedent. But he nevertheless argues that
34   specific knowledge of school proximity should be required
35   for a conviction under that statute. We disagree. “[T]he
36   schoolyard statute is one of strict liability such that a
37   defendant can violate the statute’s terms without knowing
38   that he was within one thousand feet of a school.” United
39   States v. Martin, 544 F.3d 456, 457 (2d Cir. 2008) (per
40   curiam).
41
42
43
44
45



                                  4
1        We have considered all of Spears’s contentions on this
2   appeal and have found them to be without merit. Accordingly,
3   the judgment of the district court is AFFIRMED.
4
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8




                                 5
