16-4216-cr
United States v. Young

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                          AMENDED 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 14th day of June, two thousand eighteen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                    SUSAN L. CARNEY,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                           Appellee,                      16-4216-cr

                           v.

LIDDON YOUNG,

                           Defendant-Appellant.


FOR APPELLEE:                                          Monica J. Richards, Assistant United
                                                       States Attorney, for James P. Kennedy, Jr.,
                                                       United States Attorney, United States
                                                       Attorney’s Office for the Western District
                                                       of New York, Buffalo, NY.

FOR DEFENDANT-APPELLANT:                               David C. Pilato, LaDuca Law Firm, LLP,
                                                       Rochester, NY.

        Appeal from a December 12, 2016 amended judgment of the United States District Court
for the Western District of New York (Frank P. Geraci, Jr., Chief Judge).

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        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the amended judgment of the District Court be, and it
hereby is, AFFIRMED.

        Defendant-Appellant Liddon Young appeals the District Court’s amended judgment
convicting him of one count of conspiracy to engage in the business of dealing firearms without a
license and, in the course of such business, to transport firearms in interstate commerce in violation
of 18 U.S.C. § 371; one count of unlawful dealing of firearms in violation of 18 U.S.C.
§§ 922(a)(1)(A), 924(a)(1)(D); and one count of selling firearms to a person knowing or having
reasonable cause to believe that such person is a felon in violation of 18 U.S.C. §§ 922(d)(1),
924(a)(2). Young also appeals the District Court’s sentence, which consists principally of terms of
sixty months’ imprisonment each on the first and second counts and eighty months’ imprisonment
on the third count, the sixty-month terms to run concurrently and the eighty-month term to run
consecutively to the sixty-month terms.

        We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

        1. Procedural Reasonableness

       Young argues that his sentence is procedurally unreasonable because the District Court
improperly applied the two-level obstruction-of-justice enhancement of United States Sentencing
Guidelines section 3C1.1 and because the District Court based the sentence in part on a clearly
erroneous finding of fact.

         “We review a sentence for procedural . . . reasonableness under a deferential abuse-of-
discretion standard. . . . 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. Aldeen, 792 F.3d 247, 251 (2d Cir.
2015) (emphasis and internal quotation marks omitted).

        Young argues in essence that the District Court should not have applied the enhancement of
Sentencing Guidelines section 3C1.1 because a statement that Young made to his probation officer
that he did not know or have reason to believe that the weapons he was selling would be used to
commit a felony, was not materially false and because the District Court did not find specifically that
Young had intended to obstruct justice.

       Section 3C1.1 of the Sentencing Guidelines provides in relevant part for a two-level
enhancement “[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the . . . sentencing of the instant offense of


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conviction, and (2) the obstructive conduct related to . . . the defendant’s offense of conviction and
any relevant conduct.” U.S.S.G. § 3C1.1 (U.S. Sentencing Comm’n 2016). To apply this
enhancement on the basis of a defendant’s false statements, a district court must find both that “the
defendant had the specific intent to obstruct justice, i.e., that the defendant consciously acted with
the purpose of obstructing justice,” and that the defendant’s statements were materially false. United
States v. Young, 811 F.3d 592, 604 (2d Cir. 2016). A material statement is one that “if believed, would
tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1 cmt. n. 6.

       We conclude that the District Court’s application of the obstruction-of-justice enhancement
was not procedurally unreasonable.

        One of Young’s statements to the probation officer preparing his presentence report—
which Young repeated under oath during an evidentiary hearing before the District Court—was that
he had not trafficked in firearms before he began dealing with a certain Paul Davis. The District
Court found that Young’s statement was false, see J.A. 443–44, and we conclude that this finding is
not clearly erroneous. We also conclude that this statement was material, since it bore directly on
one of the issues that the District Court needed to determine: whether the four-level enhancement
for having “engaged in the trafficking of firearms” applied to Young. U.S.S.G. § 2K2.1(b)(5). We
therefore need not consider whether the statement Young mentions in his brief was material.

         Moreover, the District Court did find during the resentencing hearing, albeit after it had
calculated Young’s Sentencing Guidelines range, that Young had specifically intended to obstruct
justice. See J.A. 454–55 (“[T]he defendant made those statements in order to [a]ffect the ultimate
sentence and the calculation of the guidelines in this matter.”). We conclude that this finding was
sufficient.

        Young argues separately that his sentence is procedurally unreasonable because the District
Court based its sentencing decision in part on a statement, which Young criticizes as clearly
erroneous, that the weapons Young had sold had resulted in injury or death. This argument is
meritless because the remark to which Young refers in his brief is not a finding of fact at all; it is a
general observation about the danger of guns. See J.A. 449 (“We do know those weapons . . .
obviously result in injuries and/or death to individuals and that’s a matter that cannot be
understated.”).

        2. Substantive Reasonableness

       Young argues that his sentence is substantively unreasonable because it is “shockingly high
and greater than necessary to comply with the purposes of sentencing.” Br. Appellant 22.

        “We review a sentence for . . . substantive reasonableness under a deferential abuse-of-
discretion standard.” Aldeen, 792 F.3d at 251 (internal quotation marks omitted). A sentence is


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substantively unreasonable only if “the trial court’s decision cannot be located within the range of
permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal
quotation marks omitted). In other words, the sentence must be “so shockingly high, shockingly
low, or otherwise unsupportable as a matter of law that allowing [it] to stand would damage the
administration of justice.” Aldeen, 792 F.3d at 255 (internal quotation marks omitted).

       After review of the entire record, we conclude that Young’s sentence is not outside “the
range of permissible decisions” and is therefore not substantively unreasonable. Cavera, 550 F.3d at
189.

        3. Pro Se Supplemental Brief

         This Court permitted Young to file a pro se supplemental brief in this appeal. In that brief,
Young argues among other things that 18 U.S.C. §§ 921(a)(21)(C) and 922(d)(1) are
unconstitutionally vague. Outside of the First Amendment context, a vagueness challenge is assessed
“only as applied, i.e., in light of the specific facts of the case at hand and not with regard to the
statute’s facial validity.” United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (en banc) (internal
quotation marks omitted). These issues were not raised below, so they are reviewed only for plain
error. United States v. Feliciano, 223 F.3d 102, 115 (2d Cir. 2000). Young cites no authority supporting
his contention that either of the provisions he challenges is vague as applied to him. The District
Court therefore could not have made an error that was “clear under current law” by failing to
overturn sua sponte Young’s guilty plea with regard to those statutes. See United States v. Bayless, 201
F.3d 116, 128 (2d Cir. 2000).

                                           CONCLUSION

        We have reviewed all of the remaining arguments raised by Young on appeal and find them
to be without merit. We therefore AFFIRM the December 12, 2016 amended judgment of the
District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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