18-1598-cr
United States v. Jerome Shaw

                               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
31st day of October, two thousand nineteen.

Present:    ROSEMARY S. POOLER,
            MICHAEL H. PARK,
                        Circuit Judges,
            JENNIFER CHOE-GROVES,
                        Judge.1
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                        v.                                                  18-1598-cr

JEROME SHAW,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:         John Burke, Brooklyn, N.Y.


Appearing for Appellee:          Dominic Gentile, Assistant United States Attorney (Karl Metzner,
                                 Assistant United States Attorney, on the brief), for Geoffrey S.
                                 Berman, United States Attorney for the Southern District of New
                                 York, New York, N.Y.
        1
        Judge Jennifer Choe-Groves, of the United States Court of International Trade, sitting
by designation.
        Appeal from the United States District Court for the Southern District of New York.
(Sullivan, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the matter be and it hereby is AFFIRMED.

         Defendant-Appellant Jerome Shaw appeals from the May 22, 2018 judgment in the United
States District Court for the Southern District of New York (Sullivan, J.) sentencing him
principally to 15 years’ imprisonment and forfeiture of $100,000. Shaw was sentenced after
pleading guilty to one count of conspiracy to commit interstate transportation of stolen property in
violation of 18 U.S.C. § 371; one count of interstate transportation of stolen property in violation
of 18 U.S.C. § 2314; one count of receipt and sale of stolen goods in violation of 18 U.S.C. § 2315;
and one count of interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312. Shaw
challenges his sentence on the grounds that the district court committed clear error in concluding,
after a Fatico hearing, that he participated in burglaries; in refusing to credit Shaw with the
acceptance-of-responsibility reduction; that the sentence was substantively unreasonable; and that
the forfeiture amount violated the Excessive Fines Clause of the Eighth Amendment to the United
States Constitution. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        Shaw first contends that the district court committed clear error because there was no proof
adduced at the Fatico hearing that he committed the disputed burglaries. We review findings of
fact made after a Fatico hearing for clear error. See United States v. Rubenstein, 403 F.3d 93, 99
(2d Cir. 2005). We are “not allowed to second-guess the factfinder’s credibility assessments, and
where there are two permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” United States v. Medunjanin, 752 F.3d 576, 584–85 (2d Cir. 2014) (internal
quotation marks and alteration omitted). Shaw has failed to demonstrate that the district court
committed clear error in its factual findings.

        The evidence adduced at the Fatico hearing included a videotape of an informant who
claimed that Shaw told him that he was directly involved in the burglaries, along with extensive
testimony from the lead investigator regarding the evidence tying Shaw to the burglaries. The
district court’s findings were supported, and we defer, as we must, to its determinations of
credibility at the hearing. We find no error.

       Second, Shaw argues that the district court committed clear error in not crediting him for
his acceptance of responsibility after he pled guilty to the convictions for which he was charged.
We disagree. The Guidelines authorize a two-step decrease in a defendant’s offense level, if the
defendant “clearly demonstrates acceptance of responsibility for his offense.” USSG 3E1.1(a). A
guilty plea is “significant evidence of acceptance of responsibility” but it is not dispositive.
Application Note 3. In deciding whether a defendant qualifies for the adjustment, the district court
should consider, among other things, whether the defendant has:




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       [t]ruthfully admit[ed] the conduct comprising the offense(s) of conviction, and
       truthfully admit[ed] or not falsely den[ied] any additional relevant conduct for
       which the defendant is accountable under § 1B1.3 (Relevant Conduct).

Id. 3E1.1 Application Note 1(A).

         Shaw argues that his entitlement to an acceptance-of-responsibility reduction must be
evaluated exclusively by reference to his offenses of conviction. But this contention is belied by
the Guidelines. The relevant conduct includes his participation in the multiple burglaries that were
the subject of the Fatico hearing. Under the district court’s analysis, the theft of more than
$4,700,000 in stolen property, to which Shaw admitted to possessing and transporting, were “acts
and omissions committed” in preparation for the offenses of conviction, and “were part of the same
course of conduct or common scheme or plan as the offense of conviction.” USSG 1B1.3(a). The
district court did not commit clear error in finding Shaw falsely denied his participation in the
burglaries and home invasion, which constitutes relevant conduct under the Guidelines, and was
properly considered.

        Shaw also challenges his sentence as substantively unreasonable. We review a district
court’s sentence under a “deferential abuse-of-discretion standard.” United States v. Cavera, 550
F.3d 180, 189 (2d Cir. 2008) (internal quotation marks omitted). In reviewing claims
of substantive unreasonableness, we consider “the totality of the circumstances, giving due
deference to the sentencing judge’s exercise of discretion,” and we “will . . . set aside a district
court’s substantive determination only in exceptional cases where the trial court’s decision cannot
be located within the range of permissible decisions.” Id. at 189–90 (internal quotation marks
omitted) (emphasis in original). And, while we do not presume that a Guidelines sentence is
reasonable, in the “overwhelming majority of cases,” it is. United States v. Rodriguez, 715 F.3d
451, 451 (2d Cir. 2013) (internal quotation marks omitted). The within-Guidelines sentence of 180
months’ imprisonment is far from outrageous in light of the extent, nature, and sophistication of
the crimes.

        Last, Shaw argues that the forfeiture amount of $100,000 violates the Eighth Amendment’s
Excessive Fines Clause. In order to comply with the Eighth Amendment, the forfeiture “must bear
some relationship to the gravity of the offense that it is designed to punish.” United States v.
Bajakajian, 524 U.S. 321, 334 (1998). We apply the following four factors in determining whether
a forfeiture is grossly disproportional: “[1] the essence of the crime of the defendant and its relation
to other criminal activity, [2] whether the defendant fit into the class of persons for whom the
statute was principally designed, [3] the maximum sentence and fine that could have been
imposed, and [4] the nature of the harm caused by the defendant’s conduct.” United States v.
Varrone, 554 F.3d 327, 331 (2d Cir. 2009) (alterations in original) (internal quotation marks and
brackets omitted).

       Here, the forfeiture amount was not grossly disproportional to Shaw’s offenses of
conviction. The forfeited funds were generated by Shaw’s participation in a multi-year scheme to
burglarize and rob wealthy home owners of more than $4.7 million in property. He was convicted
of, among other things, receiving stolen property, and faced a statutory maximum fine of




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$9,628,474, far above the forfeiture amount. Accordingly, Shaw’s constitutional challenge to the
forfeiture lacks merit.

      We have considered the remainder of Shaw’s arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.



                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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