11-4667-cr
United States v. Lighten

                     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.

           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 20th day of May, two thousand thirteen.

PRESENT:  DENNY CHIN,
          RAYMOND J. LOHIER, JR.,
                    Circuit Judges,
          JOHN F. KEENAN,
                    District Judge.*
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UNITED STATES OF AMERICA,
                    Appellee,

                        -v.-                                 11-4667-cr

MONTU LIGHTEN,
                        Defendant-Appellant.

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FOR APPELLEE:                       Stephan J. Baczynski, Joel
                                    Violanti, Assistant United States
                                    Attorneys, for William J. Hochul,
                                    Jr., United States Attorney for

      *
          The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
                             the Western District of New York,
                             Buffalo, New York.

FOR DEFENDANT-APPELLANT:     Patrick J. Brown, LoTempio &
                             Brown, P.C., Buffalo, New York.

          Appeal from the United States District Court for the

Western District of New York (Arcara, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

VACATED IN PART and AFFIRMED IN PART.

          Defendant-appellant Montu Lighten appeals the district

court's judgment entered November 1, 2011 following a jury

verdict convicting him of (1) possession with intent to

distribute at least five grams but less than twenty-eight grams

of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B) (2008) ("Count One"); and (2) possession of at

least five grams but less than twenty-eight grams of cocaine

base, in violation of 21 U.S.C. § 844(a) ("Count Two").     On

October 20, 2011, the district court sentenced Lighten to

concurrent terms of 118 months' imprisonment on each count, to

be followed by two months' imprisonment for committing the

offense while released on bail in another case.    See 18 U.S.C.

§ 3147.

          On appeal, Lighten argues that:    (1) the Government

failed to comply with its disclosure obligations; (2) the
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Government knowingly offered false testimony at trial; and (3)

his sentence must be vacated and remanded for a jury to

determine the quantity of cocaine base attributable to each

count of conviction.    We assume the parties' familiarity with

the underlying facts, the procedural history of the case, and

the issues presented for review.

1.   Alleged Discovery Violations

         First, Lighten challenges the introduction at trial of

evidence of his in camera testimony before a state court judge

(in connection with a warrant application) that the drugs seized

from his home on July 9, 2009 belonged to him and that he

purchased them from Jamal Woods.    Lighten alleges that he did

not know the Government would rely on this testimony until

twelve days before trial began, and that this delay violated the

Government's discovery obligations pursuant to the district

court's discovery order and Federal Rule of Criminal Procedure

16(a)(1)(A).

         Ordinarily, we review a district court's evidentiary

rulings for abuse of discretion.    United States v. Cadet, 664

F.3d 27, 32 (2d Cir. 2011).    Where, as here, a defendant failed

to raise a discovery dispute with the district court, we review

only for plain error.   See United States v. Maniktala, 934 F.2d

25, 27-28 (2d Cir. 1991); see also Fed. R. Crim. P. 52(b).
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          Upon review of the record, we conclude that Lighten's

discovery claim is baseless.   Contrary to Lighten's allegations,

his in camera statements to the state court judge were clearly

referenced during a suppression hearing held nine months before

trial.   During the hearing, the Government agreed to provide

defense counsel with a transcript of Lighten's in camera

testimony, and counsel reserved the right to reopen the

suppression hearing should the transcript reveal any information

relevant to suppression.   Counsel has not indicated that the

Government failed to provide the transcript.      Further, even if

the Government delayed in providing notice of the statements,

Lighten has not shown that his substantial rights were affected,

as the Government notified him twelve days before trial of its

intent to rely on his admissions.      Accordingly, we discern no

plain error here.

2.   Introduction of Allegedly False Testimony

          Next, Lighten alleges that the Government's case

against him was based on the false trial testimony of two

witnesses.   Specifically, Lighten contends that Agent

Bongiovanni's trial testimony conflicted with his earlier

suppression hearing testimony regarding when and where Lighten

admitted that the seized drugs belonged to him.      Lighten also

argues that Agent Palmieri's trial testimony conflicted with his
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earlier grand jury testimony concerning whether Lighten stated

that the drugs in the babysitter's bra belonged to him.

         Reversal of a conviction based upon allegations of

"perjured testimony should be granted only with great caution

and in the most extraordinary circumstances."    United States v.

Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).    Reversal is not

warranted unless the appellant demonstrates that: "(i) the

witness actually committed perjury; (ii) the alleged perjury was

material; (iii) the government knew or should have known of the

alleged perjury at time of trial; and (iv) the perjured

testimony remained undisclosed during trial."    United States v.

Zichettello, 208 F.3d 72, 102 (2d Cir. 2000) (alteration,

internal citations, and quotation marks omitted); see also

United States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995).

         Lighten has not shown that Agents Bongiovanni or

Palmieri committed perjury.   Although the challenged statements

may differ from the agents' prior testimony, they are not

necessarily inconsistent when read in context.    Moreover, even

assuming the testimony was internally inconsistent, Lighten has

not shown that it was perjurious or that the prosecutors knew it

was perjurious.   See United States v. Gambino, 59 F.3d 353, 365

(2d Cir. 1995) ("[E]ven a direct conflict in testimony does not

in itself constitute perjury."); Smithwick v. Walker, 758 F.
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Supp. 178, 186 (S.D.N.Y. 1991) ("A prior inconsistent statement

does not rise to the level of perjury.").    Accordingly,

Lighten's perjury claim fails.

3.   Request for a New Trial

         Finally, Lighten contends that his convictions must be

vacated and the case remanded for a new trial in light of the

Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124

Stat. 2372 (effective Aug. 3, 2010) (the "FSA").    He makes two

arguments in this respect.     First, Lighten notes that under the

FSA, the crime of simple possession in violation of 21 U.S.C.

§ 844(a) is a misdemeanor with a statutory maximum sentence of

one year, and he argues that his 118-month sentence on Count Two

exceeds the now-applicable statutory maximum.     Second, he argues

that he is entitled to a new trial to determine the quantity of

cocaine base that he possessed with intent to distribute,

because the district court's finding that he possessed with

intent to distribute 19.6 grams of cocaine base was at odds with

the jury's verdict finding that he simply possessed at least 5

grams but less than 28 grams of cocaine base.

         As to Lighten's first argument, we agree that

Lighten's 118-month sentence for simple possession exceeds the

statutory maximum sentence in light of the FSA, which applies

retroactively to Lighten because he was sentenced after the
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FSA's August 3, 2010 effective date.    See Dorsey v. United

States, 132 S. Ct. 2321, 2336 (2012) (FSA applies to defendants

sentenced after FSA's August 3, 2010 effective date).      No remand

is necessary, however, as the Government agrees that Lighten's

conviction for simple possession must be vacated.    "[S]imple

possession, in violation of 21 U.S.C. § 844, is a lesser

included offense of possession with intent to distribute," in

violation of 21 U.S.C. § 841(a), United States v. Gore, 154 F.3d

34, 46 (2d Cir. 1998); accord United States v. Garcia-Duarte,

718 F.2d 42, 47 (2d Cir. 1983), and here, as discussed below,

the same factual transaction was the basis for both Counts One

and Two.   Thus, the judgment of conviction for the lesser

included offense of simple possession must be vacated.     See

United States v. White, 240 F.3d 127, 133 (2d Cir. 2001).

           As to Lighten's second argument -- that a jury must

determine the quantity of cocaine base he possessed with intent

to distribute -- we affirm the district court's judgment.

Because Lighten did not raise this challenge before the district

court, our review is for plain error.     See Gore, 154 F.3d at 41.

           A district court may make factual findings at

sentencing about the drug quantity involved in the offense as

long as those findings do not raise the sentence above the

otherwise applicable statutory maximum.     See United States v.
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Florez, 447 F.3d 145, 156 (2d Cir. 2006) (holding that district

court is not bound by jury's drug quantity finding at

sentencing); United States v. Thomas, 274 F.3d 655, 663 (2d Cir.

2001) (en banc) ("[I]t is error for a court to 'enhance' a

defendant's sentence above a statutory maximum based on drug

quantity if the Government has not charged drug quantity in the

indictment and proved it to a jury beyond a reasonable doubt.");

see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

("Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.").

          Here, the district court was permitted to determine

the quantity of cocaine base involved in Count One because the

difference between 5 grams and 19.6 grams did not raise

Lighten's sentence above the otherwise applicable statutory

maximum, as determined by the jury.1   See Thomas, 274 F.3d at

663; Apprendi, 530 U.S. at 490.   Although the FSA raised from


     1
          Lighten argues that if the jury were to find that he
possessed with intent to distribute only five grams of cocaine
base, then the sentence on Count One could not exceed sixty
months' imprisonment. We see no basis for this assertion.
Rather, under the FSA, the statutory maximum sentence for
possession with intent to distribute any amount of cocaine base
less than twenty-eight grams is twenty years' imprisonment. See
21 U.S.C. § 841(b)(1)(C) (2010).
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five grams to twenty-eight grams the threshold amount of cocaine

base triggering a statutory sentencing range of five to forty

years under 21 U.S.C. § 841(b)(1)(B)(iii), Lighten's sentence of

118 months on Count One is well below the twenty-year maximum

sentence now applicable to quantities of cocaine base less than

twenty-eight grams.     See 21 U.S.C. § 841(b)(1)(C) (2010); United

States v. Gonzalez, 686 F.3d 122, 130 (2d Cir. 2012) ("If a

defendant is convicted only on a lesser unqualified drug charge,

he must be sentenced pursuant to § 841(b)(1)(C) . . . ."

(internal quotation marks omitted)).

         Further, the district court properly found, based on

facts set forth in the Presentence Investigation Report ("PSR"),

that the entire 19.6 grams seized from Lighten's residence on

July 9, 2009 was involved in his offense of possession with

intent to distribute under 21 U.S.C. § 841(a)(1).     No evidence

was presented at trial to suggest that there were two separate

quantities of drugs involved in Lighten's offense.    The jury did

not find that any part of the cocaine base was for Lighten's

personal use.     Cf. United States v. Williams, 247 F.3d 353, 358

(2d Cir. 2001) ("[W]e hold that, in calculating the quantity of

drugs relevant for purposes of sentencing under 21 U.S.C. § 841,

any fractional quantity of drugs intended for personal use must

be excluded.").     Rather, the jury's finding on Count Two that
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Lighten possessed at least five grams but less than twenty-eight

grams of cocaine base was entirely consistent with the court's

finding that he possessed the entire 19.6 grams with intent to

distribute it.   See Gore, 154 F.3d at 46.    Further, the PSR

referred to a single quantity of cocaine base secreted in the

couch in Lighten's residence.     At sentencing, the district court

confirmed that neither party objected to the PSR and adopted the

facts in the PSR as its findings of fact.     We see no plain error

in the district court's factual finding that Lighten possessed

with intent to distribute 19.6 grams of cocaine base.      See

United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009) (holding

that district court may satisfy factfinding obligations by

adopting factual statements in PSR, so long as PSR states enough

facts to permit meaningful appellate review).

         Moreover, there is no reason to remand for

resentencing on Count One merely because Lighten's conviction on

Count Two is being vacated.     The inclusion of Count Two did not

affect the original Guidelines calculations or lead the district

court to impose a greater sentence.      See United States v.

Rosenthal, 454 F.2d 1252, 1255-56 (2d Cir. 1972).      The PSR

calculated Lighten's base offense level as 22, based on the 19.6

grams of cocaine base seized from his residence on July 9, 2009.

See U.S. Sentencing Guidelines Manual § 2D1.1(c)(9) (at least
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16.8 grams but less than 22.4 grams of cocaine base results in

base offense level of 22).   Based on Lighten's Criminal History

Category of VI, the court calculated the applicable Guidelines

range as 110 to 137 months' imprisonment and sentenced him to,

inter alia, 118 months' imprisonment on Count One.   We see no

plain error here.

         Finally, although the FSA raised the relevant

threshold amounts for cocaine base needed to trigger certain

mandatory minimums, such that the 19.6 grams of cocaine base

that Lighten possessed with intent to distribute would not now

trigger a five-year mandatory minimum sentence, compare 21

U.S.C. § 841(b)(1)(B)(iii) (2008) (providing a five gram

threshold for triggering a five-year mandatory minimum

sentence), with 21 U.S.C. § 841(b)(1)(B)(iii) (2010) (providing

a twenty-eight gram threshold for the same five-year mandatory

minimum sentence), we need not remand for resentencing on Count

One on this basis, for the district court made clear that the

sentence imposed was based on the Guidelines range, not the

mandatory minimum.




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         We have considered Lighten's remaining arguments and

conclude that they lack merit.   Accordingly, we VACATE Lighten's

conviction on Count Two and AFFIRM the judgment of the district

court in all other respects.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




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