     09-2819-cr
     United States v. Graham


                                    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 for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, onthe
 3   15th day of August, two thousand and twelve.
 4
 5   PRESENT:
 6
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                         Circuit Judges.
11
12   __________________________________________
13
14   United States of America,
15
16                     Appellee,
17
18                             v.                                        No. 09-2819-cr
19
20   Larone Graham, a/k/a Abgod Graham,
21
22               Defendant-Appellant.
23   _________________________________________
24
25   FOR DEFENDANT-APPELLANT:                             DONNA R. NEWMAN, New York, NY.
26
27   FOR APPELLEE:                                        LARA TREINIS GATZ (Jo Ann M. Navickas
28                                                        Assistant U.S. Attorney, on the brief), for
29                                                        Loretta E. Lynch, United States Attorney for
30                                                        the Eastern District of New York, Brooklyn,
31                                                        NY, for Appellee.

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1
2           Appeal from a judgment of the United States District Court for the Eastern District of New
3    York (Joanna Seybert, Judge).
4
5         UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
6    AND DECREED that the judgment of the District Court is AFFIRMED IN PART, REVERSED
7    IN PART and REMANDED.

 8           Defendant-appellant Larone Graham (“Graham”) appeals from the June 17, 2009 judgment
 9   entered by the District Court, convicting him, following a jury trial, of conspiracy to affect
10   commerce by robbery, in violation of 18 U.S.C. § 1951(a); affecting commerce by robbery, in
11   violation of 18 U.S.C. §§ 1951(a) and 2; conspiracy to affect commerce by extortion, in violation
12   of 18 U.S.C. § 1951(a); affecting commerce by extortion, in violation of 18 U.S.C. § 1951(a) and
13   2; discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and
14   using an explosive to commit a felony, in violation of 18 U.S.C. § 844(h)(1). The judgment of
15   conviction sentenced Graham principally to 600 months of imprisonment and five years of
16   supervised release. We assume the parties’ familiarity with the underlying facts and procedural
17   history of this case.
18
19           On appeal, Graham raises four principal claims and numerous subsidiary issues. First,
20   Graham contends that his conviction on Count Eleven, use of an explosive to commit a felony in
21   violation of § 844(h)(1), should be reversed because his discharge of a 9-millimeter handgun did not
22   constitute “use of an explosive” within the meaning of the statute. We address this argument in a
23   separate opinion published herewith.1 Second, Graham challenges the sufficiency of the evidence
24   to support his convictions on Count Two, conspiracy to rob the Cellini Uomo clothing store; Count
25   Three, robbery of the Cellini Uomo clothing store; Count Five, conspiracy to extort Jamel
26   Thompson; and Count Six, extortion of Jamel Thompson; all in violation of § 1951(a). Third,
27   Graham argues that his Sixth Amendment right to “conflict-free” counsel was violated by trial
28   testimony about the involvement of Kevin Hinkson, a private investigator separately retained by
29   Graham, in obtaining a false affidavit from a co-defendant. Fourth, Graham raises a series of
30   sentencing challenges.
31
32


              1
                Graham also argues that 18 U.S.C. § 844(h)(1) is void for vagueness as applied to him; that his convictions
     under both 18 U.S.C. § 844(h)(1) and 18 U.S.C. § 924(c)(1)(A)(iii) constitute multiple punishments for the same offense,
     in violation of the Double Jeopardy Clause; and that the evidence presented at trial was insufficient to convict him of
     a violation of 18 U.S.C. § 844(h)(1) These claims too are dealt with in our separately published opinion.

                                                                2
 1   Sufficiency of the Evidence
 2
 3           We review sufficiency challenges de novo. United States v. Andino, 627 F.3d 41, 49 (2d Cir.
 4   2010). “In challenging the sufficiency of the evidence to support his conviction, a defendant bears
 5   a heavy burden.” United States v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003). In considering a
 6   sufficiency challenge, “we must credit every inference that could have been drawn in the
 7   government’s favor, and affirm the conviction so long as, from the inferences reasonably drawn, the
 8   jury might fairly have [reached the conclusion of] guilt beyond a reasonable doubt.” United States
 9   v. Reifler, 446 F.3d 65, 94-95 (2d Cir. 2006) (internal citations omitted).
10
11          1. Cellini Uomo Robbery (Counts Two and Three)
12
13           With respect to Counts Two and Three, this is not a case, as Graham asserts, of mere
14   association with a guilty party. Instead, the government presented testimony from two co-
15   defendants, Tyrone Redrick and Kareem Davis, that in November 2003, Graham recruited them to
16   rob a fur store later identified as Cellini Uomo. Redrick and Davis further testified that Graham
17   drove them to the store location, described the store layout and merchandise, and indicated that one
18   of the purposes of the robbery was to steal a specific blue mink coat that Graham had previously
19   tried on and wanted for himself. Following the robbery, Graham confronted another co-defendant,
20   Darryl Singleton, who had taken the blue mink coat; Singleton surrendered the coat to Graham
21   because “[t]hat was his robbery.” Based on this testimony, a reasonable jury could conclude that
22   Graham both conspired to rob Cellini Uomo (Count Two) and aided and abetted the Cellini Uomo
23   robbery (Count Three).
24
25          2. Hobbs Act Extortion (Counts Five and Six)
26
27           With respect to Counts Five and Six, Graham argues that the government failed to present
28   sufficient evidence to establish the requisite jurisdictional nexus for a Hobbs Act conviction. The
29   Hobbs Act proscribes, inter alia, extortion and conspiracy to commit extortion that “in any way or
30   degree obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in
31   commerce.” 18 U.S.C. § 1951(a). We have long recognized that “a very slight effect” on interstate
32   commerce (indeed, “even a potential or subtle effect”) will suffice to establish Hobbs Act
33   jurisdiction. United States v. Wilkerson, 361 F.3d 717, 726 (2d Cir. 2004) (quoting United States
34   v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981)). Where the target of an extortion is an individual rather
35   than a business, the interstate commerce element is established where (1) the victim directly
36   participated in interstate commerce; (2) the victim was targeted because of his status as an employee
37   at a company participating in interstate commerce; (3) the harm or potential harm to the individual

                                                       3
 1   would deplete the assets of a company engaged in interstate commerce; (4) the crime targeted the
 2   assets of a business rather than those of an individual; or (5) that the individual was extorted of a
 3   sum so large, or targeted in connection with so many individuals, that the amount at stake had a
 4   cumulative effect on interstate commerce. United States v. Perrotta, 313 F.3d 33, 37-38 (2d Cir.
 5   2002).
 6
 7           In this case, the government presented evidence that in December 2003, Graham and others
 8   kidnapped and threatened to kill Jamel Thompson because they believed that Thompson had kept
 9   jewelry from a recent robbery for himself. Thompson testified that as “part of the payback” for
10   withholding the jewelry, Graham ordered Thompson to rob one of the jewelry stores on Canal Street.
11   After a failed attempt to rob a Canal Street jewelry store, Thompson later participated in the robbery
12   of a Long Island jewelry store in order to “pay back” Graham. Based on this record, a reasonable
13   jury could conclude that the extortion targeted business assets—in the form of stolen
14   jewelry—rather than Thompson’s personal assets. Perrotta, 313 F.3d at 38 (finding the interstate
15   commerce element established where “the crime targeted the assets of a business rather than an
16   individual”). We find this nexus sufficient to establish the de minimis effect on interstate commerce
17   necessary for Hobbs Act jurisdiction. See, e.g., United States v. Needham, 604 F.3d 673, 680 (2d
18   Cir.2010) (“[A]ll that need be shown is the possibility or potential of an effect on interstate
19   commerce, not an actual effect.” (internal quotation marks omitted)).
20
21   Right to Conflict-Free Counsel
22
23            “Whether a defendant’s representation violated the Sixth Amendment right to effective
24   assistance of counsel is a mixed question of law and fact requiring de novo review.” United States
25   v. Kliti, 156 F.3d 150, 152-153 (2d Cir. 1998). An actual conflict of interest exists when “the
26   attorney’s and defendant’s interests diverge with respect to a material factual or legal issue or to a
27   course of action,” United States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (internal quotation marks
28   omitted), while a potential conflict of interest exists “if the interests of the defendant may place the
29   attorney under inconsistent duties at some time in the future,” Kliti, 156 F.3d at 153 n.3.
30   “[W]henever the possibility arises that a counsel’s ability to represent a particular defendant has
31   been tainted by a conflict of interest,” Williams v. Meachum, 948 F.2d 863, 867 (2d Cir. 1991), trial
32   courts should
33
34          advise the defendant of his right to . . . conflict-free representation, instruct the
35          defendant as to problems inherent in being represented by an attorney with divided
36          loyalties, allow the defendant to confer with his chosen counsel, encourage the

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 1          defendant to seek advice from independent counsel, and allow a reasonable time for
 2          the defendant to make his decision.
 3
 4   United States v. Curcio, 680 F.2d 881, 890 (2d Cir. 1982).
 5
 6           In this case, the government raised the specter of a potential conflict of interest arising from
 7   an affidavit by co-defendant Darryl Singleton, which purported to clear Graham of involvement in
 8   certain charges against him. The affidavit was obtained by Kevin Hinkson, the private investigator
 9   who had been retained by Graham allegedly without notice to defense counsel, and was attached to
10   Graham’s motion to sever his trial. After appointing independent counsel, Judge Seybert conducted
11   a lengthy Curcio hearing on December 21, 2006, where she explained to Graham, inter alia, that his
12   counsel could become a witness against him in any obstruction of justice investigation relating to
13   the procurement of the Singleton affidavit. Following a narrative colloquy with Judge Seybert,
14   Graham indicated that “I wish to waive all the conflict issues today so myself and [defense counsel]
15   Mr. Barket could proceed with trial.” J.A. 503-504. The District Court held that the conflict was
16   waivable and that Graham had executed a knowing and voluntary waiver. Id. at 508.
17
18           Graham now contends that his pretrial waiver was superseded by additional trial testimony
19   that clarified Hinkson’s involvement in crafting the false affidavit and thereby tainted defense
20   counsel by association. The record belies this argument. At the pretrial Curcio hearing, Graham
21   indicated his awareness of the obstruction of justice issues posed by Hinkson’s association with the
22   Singleton affidavit. Id. at 500. Nonetheless, he reiterated that “I’m aware of that, and I just wish
23   to keep my counsel.” Id. Following careful review of the record, we conclude that the District
24   Court properly accepted Graham’s “knowing and intelligent waiver of his right to conflict-free
25   counsel,” United States v. Jones, 381 F.3d 114, 119 (2d Cir. 2004), and that his waiver bars a
26   conflict-based Sixth Amendment challenge on appeal.
27
28   Sentencing Challenges
29
30           We are remanding for de novo resentencing in light of our reversal of Graham’s conviction
31   on Count Eleven, discussed in our separately-filed opinion. See United States v. Rigas, 583 F.3d
32   108, 115-119 (2d Cir. 2009) (citing United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002)). We
33   nevertheless address Graham’s challenges to the factual basis and procedural reasonableness of his
34   sentence for the guidance of the district court, but do not discuss his challenge to the sentence’s
35   substantive reasonableness. We review a criminal sentence for “unreasonableness,” which “amounts
36   to review for abuse of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en
37   banc) (quotation marks omitted); see also Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining

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 1   “abuse of discretion”). “Reasonableness review requires an examination of the length of the
 2   sentence (substantive reasonableness) as well as the procedure employed in arriving at the sentence
 3   (procedural reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
 4
 5            1. Factual Findings (Count Ten)
 6
 7           First, Graham claims that his 10-year sentence on Count Ten should be vacated because the
 8   District Court failed to make a factual finding that Graham discharged a firearm during the
 9   Thompson extortion. We apply the clear error standard when evaluating a district court’s findings
10   of fact. See United States v. Richardson, 521 F.3d 149, 156 (2d Cir. 2008). “A district court
11   satisfies its obligation to make the requisite specific factual findings when it explicitly adopts the
12   factual findings set forth in the presentence report.” United States v. Molina, 356 F.3d 269, 275 (2d
13   Cir. 2004).
14
15           Here, the District Court adopted the findings of the PSR when it stated that “[c]learly in my
16   mind the recommendations of the probation department are warranted.”2 Contrary to Graham’s
17   assertions, the PSR described how Graham discharged a firearm during the Thompson kidnapping
18   and stated that “Graham is held accountable for Thompson’s kidnaping, the implied threat of death,
19   discharging a firearm, and for abducting Thompson.” We find that, by adopting the PSR during the
20   sentencing hearing, the District Court satisfied its obligations to make factual findings sufficient to
21   support Graham’s 10-year sentence on Count Ten.
22
23            2. Procedural Unreasonableness
24
25           Graham next contends that the District Court committed procedural error in calculating his
26   Guidelines range by incorrectly applying a series of sentencing enhancements. We review a district
27   court’s decision to apply a sentencing enhancement de novo, but we review the findings of fact
28   supporting its conclusion only for clear error. See United States v. Florez, 447 F.3d 145, 150 (2d
29   Cir. 2006).
30
31
32


              2
                 Graham disputes the sufficiency of this statement because the District Court did not make reference to any
     specific finding in the PSR. We do not, however, require such “robotic incantations” by sentencing judges. United
     States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (internal quotation marks omitted). Where a district court adopts
     the factual findings set forth in the PSR, we do not require that explanation to “specifically mention[] the reasons for the
     . . . enhancement.” United States v. Malki, 609 F.3d 503, 511 (2d Cir. 2010).

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 1                  a. Role Enhancements (Counts One, Two, Three, Five, Six)
 2
 3           Graham received four-level sentencing enhancements under § 3B1.1(a) of the Guidelines for
 4   his leadership role in the conspiracy to rob the Canal Street jewelry store (Count One); the Cellini
 5   Uomo robbery (Counts Two and Three); and the Thompson extortion (Counts Five and Six).
 6   Section 3B1.1(a) provides for a four-level enhancement if “the defendant was an organizer or leader
 7   of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G.
 8   § 3B1.1(a). Here, ample trial testimony supported the District Court’s conclusion that Graham
 9   performed a leadership role by, inter alia, identifying the Cellini Uomo target, directing his recruits
10   to obtain the blue mink coat, ordering Thompson into the car and shooting at him during the
11   kidnapping, and giving Thompson a gun to carry out the “payback” robbery on Canal Street. Thus,
12   the District Court did not err in applying the four-level role enhancements.
13
14                  b. Weapons Enhancements (Counts Five and Six)
15
16           Graham also contests his seven-level sentencing enhancement under § 2B3.2(b)(3)(A)(i) and
17   his two-level sentencing enhancement under § 2B3.2(b)(1), both in connection with Counts Five and
18   Six, the extortion charges. Because Graham did not raise this challenge below, we review only for
19   plain error. United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007).
20
21           The government concedes that the District Court incorrectly imposed a seven-level
22   enhancement under § 2B3.2(b)(3)(A)(i) because Graham was also convicted under 18 U.S.C. §
23   924(c). See U.S.S.G. § 2K2.4 cmt. 4 (“If a sentence under this guideline is imposed in conjunction
24   with a sentence for an underlying offense, do not apply any specific offense characteristic for
25   possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence
26   for the underlying offense.”). But the District Court correctly imposed a two-level enhancement
27   under § 2B3.2(b)(1). Although the PSR notes that the defendant “fired a bullet” at Thompson’s feet
28   during the kidnapping, the enhancement applied not because of the discharge, but because the
29   Thompson extortion “involved an express or implied threat of . . . death, bodily injury, and
30   kidnapping.”
31
32          Since the District Court erred only with respect to the seven-level enhancement, the overall
33   Guidelines calculation for Counts Five and Six remains unchanged. Accordingly, we conclude that
34   any calculation error is harmless and does not rise to the level of a “miscarriage of justice” that
35   would warrant a finding of plain error. See United States v. Zvi, 168 F.3d 49, 58 (2d Cir. 1999).
36
37

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 1                     c. Use of Firearm by an Accomplice (Counts Two and Three)
 2
 3            Graham further disputes his six-level sentencing enhancement under § 2B3.1(b)(2)(B), which
 4   relates to the use of a firearm, and his two-level sentencing enhancement under § 2B3.1(b)(3)(A),
 5   which relates to bodily injury. Both increases related to the fact that a co-defendant, Tyrone
 6   Redrick, struck the owner of Cellini Uomo in the head with a gun during the course of the robbery.
 7   Section 1B1.3 of the Guidelines provides that a defendant shall be held responsible “in the case of
 8   a jointly undertaken criminal activity . . . [for] all reasonably foreseeable acts and omissions of
 9   others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). In
10   order to sentence a defendant on the basis of criminal activity by a coconspirator, a district court
11   must make two particularized findings: (1) that the acts were within the scope of the defendant’s
12   agreement; and (2) that they were foreseeable to the defendant. United States v. Johnson, 378 F.3d
13   230, 238 (2d Cir. 2004).
14
15         In this case, the PSR characterized the Cellini Uomo robbery as “planned and organized” by
16   Graham. The commentary to the Guidelines makes clear that, on the basis of such a finding,
17   Graham is responsible for the assault:
18
19            [T]wo defendants agree to commit a robbery and, during the course of that robbery,
20            the first defendant assaults and injures a victim. The second defendant is
21            accountable for the assault and injury to the victim (even if the second defendant had
22            not agreed to the assault and had cautioned the first defendant to be careful not to
23            hurt anyone) because the assaultive conduct was in furtherance of the jointly
24            undertaken criminal activity (the robbery) and was reasonably foreseeable in
25            connection with that criminal activity (given the nature of the offense).
26
27   U.S.S.G. § 1B1.3(a)(1)(b) cmt. 2. Because Redrick’s assault was in furtherance of a robbery
28   “planned and organized” by Graham and reasonably foreseeable to Graham given the nature of the
29   offense, the District Court properly applied the sentencing enhancements under § 2B3.1(b)(2)(B)
30   and § 2B3.1(b)(3)(A).3
31
32



              3
                As previously noted, the District Court satisfied its obligation to make factual findings “when it explicitly
     adopt[ed] the factual findings set forth in the presentence report.” Molina, 356 F.3d at 275.

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 1            We have considered Graham’s remaining arguments and find them to be without merit. For
 2   the foregoing reasons, and for the reasons stated in the accompanying opinion issued today,
 3   Graham’s conviction under Count Eleven is REVERSED, his convictions under the remaining counts
 4   in this case are AFFIRMED, and the case is REMANDED for further proceedings consistent with this
 5   opinion.
 6
 7                                               FOR THE COURT,
 8                                               Catherine O’Hagan Wolfe, Clerk of Court
 9
10
11
12
13
14




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