      13-4069-cr
      United States v. Spruill

 1 
 2                                   UNITED STATES COURT OF APPEALS
 3                                       FOR THE SECOND CIRCUIT
 4 
 5                                            SUMMARY ORDER
 6 
 7    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 8    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 9    BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
10    WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
11    MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
12    NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
13    OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
14 
15            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
16    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
17    16th day of December, two thousand and fifteen.
18 
19    Present:
20                ROSEMARY S. POOLER,
21                RENNA RAGGI,
22                PETER W. HALL,
23                            Circuit Judges.
24    ____________________________________________________
25 
26    UNITED STATES OF AMERICA,
27 
28                               Appellee,
29 
30                      v.                                                        No. 13-4069-cr
31 
32    JEFF SPRUILL,
33 
34                      Defendant-Appellant.
35    ____________________________________________________
36 
37    For Defendant-Appellant:          HARRY SANDICK (Andrew D. Cohen, on the brief), Patterson,
38                                      Belknap, Webb & Tyler L.L.P., New York, NY.
39 
40    For Appellee:           SARALA V. NAGALA, Assistant United States Attorney (Marc H.
41                            Silverman, Assistant United States Attorney, on the brief), for
42                            Deirdre M. Daly, United States Attorney for the District of
43                            Connecticut, New Haven, CT.
44    ____________________________________________________
45 




                                                        1
      13-4069-cr
      United States v. Spruill

 1                  Appeal from a judgment of the United States District Court for the District of

 2    Connecticut (Chatigny, J.).

 3                  UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4    DECREED that, for the reasons stated in the accompanying opinion addressing defendant’s

 5    challenge to the dismissal of a juror and in this summary order, the judgment of the district court

 6    is AFFIRMED.

 7                  Defendant-Appellant Jeff Spruill (“Spruill”) appeals from a July 2013 conviction entered

 8    after a jury trial on three counts of possession with intent to distribute and distribution of cocaine

 9    and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts One, Two, and Three), and one

10    count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §

11    922(g) (Count Four). In October, 2013, Judge Chatigny sentenced Spruill principally to 120

12    months’ imprisonment. We address here Spruill’s challenges to the sufficiency of the evidence

13    introduced at trial to prove him guilty of the crimes charged in Counts One, Two, and Four, and

14    the procedural reasonableness of his sentence. In a supplemental pro se brief Spruill also argues

15    that proof of a defendant’s knowledge of ‘drug type’ is a predicate element of the drug-related

16    offenses for which he was convicted.1 As noted above, we address in a separate opinion

17    accompanying this order Spruill’s argument that the district court improperly dismissed and

18    replaced one of the jurors before deliberations were completed. We assume the parties’

19    familiarity with the underlying facts, procedural history, and issues on appeal. For the reasons

20    stated below, we affirm.




                                                                  
      1
        On March 4, 2015, after this case was argued, Spruill’s appellate counsel moved for leave to
      allow Spruill to file a supplemental pro se brief. This Court granted the motion and subsequently
      received and has considered Spruill’s supplemental brief and the Government’s response.
                                                                     2
      13-4069-cr
      United States v. Spruill

 1             Spruill contends that when viewing the evidence in the light most favorable to the

 2    government, a reasonable juror could not find him guilty beyond a reasonable doubt on Counts

 3    One, Two, and Four. We review de novo the sufficiency of the evidence supporting a conviction.

 4    United States v. Anderson, 747 F.3d 51, 59 (2d Cir. 2014). This Court exercises an “exceedingly

 5    deferential standard of review” when reviewing sufficiency challenges to a jury verdict. United

 6    States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008). The defendant seeking to overturn a jury’s

 7    finding bears a “heavy burden” because we must draw all reasonable inferences in the

 8    Government’s favor and “uphold the conviction if any rational trier of fact could have found the

 9    essential elements of the crime beyond a reasonable doubt.” United States v. Aguilar, 585 F.3d

10    652, 656 (2d Cir. 2009) (internal quotations omitted). “The ultimate question is not whether we

11    believe the evidence adduced at trial established defendant’s guilt beyond a reasonable doubt, but

12    whether any rational trier of fact could so find.” United States v. Corbett, 750 F.3d 245, 250 (2d

13    Cir. 2014) (quoting United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998).

14             To overturn his conviction under 21 U.S.C. § 841(a)(1) Spruill must show that the

15    government failed to produce sufficient evidence to prove beyond a reasonable doubt that he

16    knowingly and intentionally possessed a controlled substance with the specific intent to

17    distribute it. See United States v. Gore, 154 F.3d 34, 45 (2d Cir. 1998). Spruill argues that

18    because the confidential informants involved in the June and August 2012 controlled purchases

19    did not testify, the government failed to demonstrate that an exchange between Spruill and the

20    informants actually occurred, and thus no reasonable juror could find beyond a reasonable doubt

21    that he knowingly possessed a controlled substance. After reviewing the evidence, we conclude

22    that a rational trier of fact could find that Spruill had the intent to distribute and did distribute

23    cocaine and crack cocaine on the dates in question. The detectives who engineered both



                                                          3
      13-4069-cr
      United States v. Spruill

 1    controlled purchases testified at trial in detail about the confidential informants, the logistics of

 2    the sting operation, and the cocaine that was purchased from Spruill. Although the confidential

 3    informants’ testimony would have contributed to the weight of evidence, the testimony was not

 4    necessary for a reasonable juror to find that Spruill intended to distribute and actually distributed

 5    cocaine when engaging in the June and August 2012 purchases.

 6             To overturn his conviction under 18 U.S.C. § 922(g) Spruill must show that the

 7    government failed to produce sufficient evidence to prove beyond a reasonable doubt that he

 8    either actually or constructively possessed a firearm. United States v. Gaines, 295 F.3d 293, 300

 9    (2d Cir. 2002). Constructive possession “exists when a person has the power and intention to

10    exercise dominion and control over an object, [which] may be shown by direct or circumstantial

11    evidence.” Id. (alternation in original) (quoting Payton, 159 F.3d at 56). “[U]nder constructive

12    possession, an individual can possess a gun . . . without ever physically handling the firearm . . . .

13    [and] possession need not be exclusive.” Id. Spruill argues there was insufficient evidence to

14    prove that he constructively possessed the firearms that were found in the attic of 18 Glover

15    Place. We disagree. The Government produced evidence that Spruill regularly stored his

16    belongings in the attic; that additional garbage bags were found in the attic containing Spruill’s

17    clothing; and that nearby garbage bags were found in the attic containing a bulletproof vest, three

18    handguns, and four boxes of ammunition. The jury also heard testimony that the firearms did not

19    belong to the building’s tenant—Spruill’s girlfriend. This evidence provided a sufficient basis for

20    a rational trier of fact to find beyond a reasonable doubt that Spruill had the “power and intention

21    to exercise dominion and control over” the firearms found in the attic. Id. (quoting Payton, 159

22    F.3d at 56).




                                                         4
      13-4069-cr
      United States v. Spruill

 1             Spruill contends that his sentence is procedurally unreasonable because the district court

 2    erred in calculating his Guidelines sentencing range when it failed to consider the applicability of

 3    our decision in United States v. Savage, 542 F.3d 959 (2d Cir. 2008). A procedural error in

 4    sentencing occurs when a district court “(1) fails to calculate the Guidelines range; (2) is

 5    mistaken in the Guidelines calculation; (3) treats the Guidelines as mandatory: (4) does not give

 6    proper consideration to the statutory sentencing factors; (5) makes clearly erroneous factual

 7    findings; (6) does not adequately explain the sentence imposed; or (7) deviates from the

 8    Guidelines range without explanation.” United States v. Watkins, 667 F.3d 254, 261 (2d Cir.

 9    2012) (internal quotation omitted). When an alleged error has not been raised below, this Court

10    reviews the district court’s sentencing determination for plain error. See United States v. Olano,

11    507 U.S. 725, 733–34 (1993); United States v. Zillgitt, 286 F.3d 128, 131 (2d Cir. 2002)

12             In Savage we applied the two-step modified categorical approach to determine that an

13    Alford plea to a violation of CONN. GEN. STAT. § 21a-277(b) did not qualify as a conviction of a

14    controlled substance offense under U.S.S.G. § 4B1.2(b) such that it could be considered when

15    imposing an enhanced sentence. Savage, 542 F.3d at 964. We held that CONN. GEN. STAT. § 21a-

16    277(b) was not categorically a controlled substance offense under the guidelines and that the

17    Alford plea could not support a finding that the defendant necessarily committed the underlying

18    acts that constituted a predicate offense. Id. at 964–65. Spruill previously pled guilty to the sale

19    of narcotics and the possession of narcotics with the intent to sell in violation of CONN. GEN.

20    STAT. § 21a-277(a). Although these offenses are not categorically controlled substance offenses

21    under the Guidelines, the district court’s decision to consider these convictions as predicate

22    offenses for a career offender enhancement was not procedurally unreasonable if Spruill’s plea




                                                        5
      13-4069-cr
      United States v. Spruill

 1    “necessarily rested on a fact identifying the conviction as a predicate offense.” Id. at 964

 2    (internal quotation omitted).

 3             Based on the record before us, the district court properly calculated Spruill’s Guidelines

 4    range because the plea colloquy in Spruill’s prior state proceedings demonstrated that his guilty

 5    plea “rested on a fact identifying the conviction as a predicate offense.” Id. The transcript from

 6    Spruill’s September 11, 2003 state court proceeding describes in sufficient detail that his

 7    convictions were based upon actual possession and sale of crack cocaine and thus went beyond a

 8    “mere offer to sell.” Id. at 965. Spruill admitted as much, and at no point during the state

 9    proceeding did Spruill voice an objection to the prosecutor’s recitation of the facts supporting the

10    two convictions. In the district court, the Pre-Sentence Report (“PSR”) referenced and relied

11    upon the state court transcript. During sentencing Spruill’s counsel did not object to the accuracy

12    of the PSR, and Spruill agreed and did not contest that he qualified as a career offender under the

13    Guidelines. We hold, therefore, that the district court did not commit procedural error when

14    calculating Spruill’s sentence because the court properly classified Spruill’s prior state

15    convictions as predicate offenses for a career offender enhancement consistent with our guidance

16    in Savage.

17             Finally, Spruill argues in a supplemental post-argument pro se brief that because neither a

18    grand jury nor petit jury made a finding as to the identification of the controlled substance he

19    possessed, his drug-related convictions should be overturned. This argument is meritless. To the

20    extent Spruill argues that the grand jury and petit jury did not determine that the controlled

21    substances involved were cocaine and crack-cocaine, that argument is belied by the specific

22    charges in the indictment and by the notations on the jury verdict form. To the extent he argues

23    the government was required to charge and prove that he had knowledge of the specific drug



                                                        6
     13-4069-cr
     United States v. Spruill

1    type he possessed and distributed in violation of 21 U.S.C. § 841, this is not the law. See United

2    States v. Andino, 627 F.3d 41, 46 (2d Cir. 2010). Spruill’s argument fails on both the facts and

3    the law.

4                  We have considered Spruill’s remaining arguments and find that they are without merit.2

5    The judgment of the district court is AFFIRMED.



                                                                    FOR THE COURT:
                                                                    CATHERINE O’HAGAN WOLFE, CLERK

      




                                                                 
     2
       We decline to decide Spruill’s ineffective assistance of counsel claim. “When faced with a
     claim for ineffective assistance of counsel on direct appeal, we may [] decline to hear the claim,
     permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas
     corpus pursuant to 28 U.S.C. § 2255.” United States v. Morgan, 386 F.3d 376, 383 (2d Cir.
     2004) (internal quotation omitted). We are “generally disinclined to resolve ineffective assistance
     claims on direct review.” United States v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004).
                                                                      7
