14-58-cr(L)
United States v. Powell et al.


                          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 TO 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 15th day of December, two thousand fifteen.

PRESENT:
                    GUIDO CALABRESI
                    GERARD E. LYNCH,
                         Circuit Judges.
                    JED S. RAKOFF,*
                          District Judge.
_____________________________________

UNITED STATES OF AMERICA,
               Appellee,
          v.                                                    Nos. 14-58-cr(L)**
                                                                     14-339-cr(con)
                                                                     14-771-cr(con)
JEFFERY POWELL, AKA Ghost, TITUS                                     14-1054-cr(con)
NICKENS, AKA Tit, KAHARI SMITH, AKA                                  14-1890-cr(con)
Sealed Defendant, AKA Kiss, HABAKKUK                                 14-3479-cr(con)

*
 The Honorable Jed S. Rakoff, of the United States District Court for the Southern District
of New York, sitting by designation.

** These appeals were originally consolidated with that of co-defendant Jermeere
McKinnon, no. 14-58. McKinnon’s appeal was dismissed on February 27, 2015.
                                                1
NICKENS, AKA HB,
              Defendants-Appellants

JERMEERE MCKINNON, AKA Hood,
KENNETH JACKSON, AKA Karome,
RIADDA      TRAVET,        AKA     Rico,
CHRISTOPHER MIKE, AKA Jah, AKA
C-Mike, NATHAN RING, AKA Nate,
DWAYNE HESTER, AKA Black, DONALD R.
JOHNSON, JR., AKA D-Jigga,
                 Defendants.
_____________________________________

FOR APPELLANTS:                           James M. Branden, New York, NY, for Jeffery
                                          Powell.

                                          MARIANNE MARIANO, Federal Public
                                          Defender’s Office (Hillary K. Green, Of
                                          Counsel, on the brief), Buffalo, NY, for Titus
                                          Nickens.

                                          YVONNE SHIVERS, for Habakkuk Nickens.

                                          ROBERT A. CULP, Garrison, NY (Laurie S.
                                          Hershey, Manhasset, NY, on the brief), for
                                          Kahari Smith.

FOR APPELLEE:                             PAUL D. SILVER, Assistant United States
                                          Attorney, for Richard S. Hartunian, United
                                          States Attorney for the Northern District of
                                          New York, New York, NY.


      Appeal from judgments of the United States District Court for the Northern District

of New York (Norman A. Mordue, J.).




                                           2
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments as to appellants Titus Nickens, Kahari Smith, and

Habakkuk Nickens are AFFIRMED. Attorney James M. Branden’s motion to be

relieved as counsel to Jeffery Powell, and the Government’s motions to dismiss Powell’s

appeal of his conviction and term of imprisonment and to summarily affirm his special

assessment and term of supervised release are GRANTED.

       Jeffery Powell, Titus Nickens, Kahari Smith, and Habakkuk Nickens appeal from

judgments of conviction entered in the United States District Court for the Northern

District of New York, and their sentences of 121, 121, 420, and 240 months’

imprisonment, respectively. All four appellants pled guilty to conspiring to conduct the

affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. §

1962(d). We assume the parties’ familiarity with the underlying facts and procedural

history.



Jeffery Powell

       Powell’s attorney moves to be relieved as counsel pursuant to Anders v. California,

386 U.S. 738 (1967). To grant an Anders motion, we must be satisfied that (1) “counsel

has diligently searched the record for any arguably meritorious issue in support of his

client’s appeal;” and (2) “defense counsel’s declaration that the appeal would be frivolous

is, in fact, legally correct.” United States v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993).


                                              3
       Powell pled guilty pursuant to a plea agreement in which he waived his right “to

appeal . . . his conviction and any sentence of imprisonment of 121 months or less . . . .”

A. 39. A defendant’s knowing and voluntary waiver of the right to appeal is enforceable.

United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). Powell thus may not

appeal his conviction and term of imprisonment. Neither Powell’s supervised release

term nor the special assessment, the only components of his sentence not covered by the

appeal waiver, presents non-frivolous issues for appeal. Accordingly, counsel’s motion to

be relieved, and the government’s motions to dismiss Powell’s appeal of his conviction and

term of imprisonment and to summarily affirm his supervised release and special

assessment, are granted.



Titus Nickens

       Titus Nickens argues that the district court committed procedural error by failing to

consider his withdrawal from criminal activity prior to his arrest and alleged sentencing

disparities among the codefendants. He did not object to these alleged failures in the

district court and we therefore review for plain error. See United States v. Wernick, 691

F.3d 108, 117 (2d Cir. 2012). We find no error, plain or otherwise. Far from ignoring

Nickens’s positive community involvements, the district court expressly considered those

activities, and indeed cited them as a reason to depart downward from Nickens’s Criminal

History Category, and thus to reduce his sentence. Moreover, even if the district court


                                             4
were required to consider sentencing disparities between codefendents, but see United

States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008) (holding that such consideration is not

required), we see no undue disparity among the sentences imposed on appellants and their

codefendants’ sentences.

       Titus Nickens also argues that his sentence was substantively unreasonable in light

of his individual characteristics. We review the substantive reasonableness of a sentence

for abuse of discretion. United States v. Rigas, 583 F.3d 108, 121 (2d Cir. 2009). A

sentence will be set aside as substantively unreasonable “only in exceptional cases where

the trial court’s decision cannot be located within the range of permissible decisions.” Id.

at 122 (internal quotation mark omitted). The district court did not abuse its discretion by

imposing a 121-month sentence. Judge Mordue’s statement that Nickens’s “only saving

grace” was his involvement in a community nonprofit does not indicate that he did not

consider Nickens’s other arguably mitigating characteristics, but rather expresses the

reasonable view that this involvement was the only mitigating factor sufficiently

substantial to weigh against the seriousness of Nickens’s crimes and his significant

criminal history.



Kahari Smith

       Kahari Smith argues that his sentence of 420 months in prison was substantively

unreasonable because (1) he did not specifically intend to kill Kihary Blue; (2) his sentence


                                             5
is disproportionate to those of his codefendants; (3) his personal characteristics weigh in

favor of a lesser term of imprisonment; and (4) his criminal history category overstates the

seriousness of his record because his only two prior convictions were for conduct charged

as overt acts in the RICO conspiracy count. These arguments are without merit.

       The district court was not required to accept Smith’s claim that he lacked specific

intent to murder Kihary Blue. But even if that assertion is credited, it is undisputed that

Smith fired into a moving, occupied vehicle, an extremely reckless act that created a

substantial and unjustifiable risk of death, and in fact caused the death of one person and

the serious injury of another. The sentence imposed was neither disproportionate to the

seriousness of Smith’s conduct, nor disproportionate to the sentences of his codefendants,

who did not commit acts of equivalent gravity.

       Nor is there merit to Smith’s claim that the district court failed to consider his

personal characteristics. “We presume, in the absence of record evidence suggesting

otherwise, that a sentencing judge has faithfully discharged her duty to consider” the

§ 3553(a) factors. United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). Here, the

district court expressly stated that it had considered the statutory factors which include a

defendant’s “history and characteristics.” 18 U.S.C. § 3553(a)(1).

       Finally, Smith argues that his criminal history score overstated the seriousness of

his record, because his only two prior convictions were for conduct charged as overt acts in

the RICO conspiracy count. We see no error in the district court’s treatment of the


                                              6
overlap between Smith’s prior convictions and the predicate acts charged in this

indictment, which was consistent with the methodology prescribed in the Sentencing

Guidelines. See U.S.S.G. § 2E1.1 cmt. 4.



Habakkuk Nickens

       Habakkuk Nickens argues that the district court committed procedural error by

including his youthful-offender adjudication in his criminal history calculation without

expressly considering the factors set forth in United States v. Driskell, 277 F.3d 150 (2d

Cir. 2002), and by concluding that Nickens’s participation in the shooting of Kihary Blue

could constitute first degree murder. Habakkuk Nickens failed to raise these arguments in

the district court and, therefore, we review them only for plain error. See Wernick, 691

F.3d at 117.

       The district court did not commit plain error by failing to apply the Driskell factors.

It was reasonable for the district court to interpret Driskell as applying only to defendants,

like Driskell, whose youthful-offender adjudications are based on conduct that occurred

before the defendant was eighteen years old. Driskell, 277 F.3d at 158; see also United

States v. Orlando-Mena, 347 F. App’x 690, 692 (2d Cir. 2009) (summary order) (“There is

no need to consider whether Orlando-Mena’s [youthful-offender adjudication] sentence

resulted from an adult conviction, because he committed the offense in question when he

was eighteen years old.”). Nickens committed his petit larceny offense at the age of


                                              7
eighteen. In any event, even if the Driskell factors should have been applied here, any

error was harmless. Judge Mordue chose to depart downward by one criminal history

category, thus taking account of the possibility that giving full weight to all of Nickens’s

prior convictions overstated the seriousness of his criminal history.

       We also reject Habakkuk Nickens’s argument that there was an insufficient factual

basis for the district court to apply the guideline for first degree murder. The district court

did not plainly err by relying on Nickens’s stipulation in his plea agreement that he was

accountable for the first degree murder of Kihary Blue. Moreover, the court could

properly rely on evidence that Nickens, who was driving the car from which Blue was shot,

deliberately maneuvered the car so as to position Smith’s gun in line with the windows of

the rival vehicle. There was thus ample basis to infer that Nickens acted with a deliberate

intent to facilitate the murder of the occupants of the other vehicle.

       Finally, we reject Habakkuk Nickens’s claim that his sentence was substantively

unreasonable. He was a direct participant in the murder of Blue, which sharply

distinguishes him from others who received lower sentences, and fully justifies his

below-guidelines 20-year sentence.

       We have considered all of the appellants’ remaining arguments and find them to be

without merit. Accordingly, the judgments of the district court as to Titus Nickens,

Kahari Smith, and Habakkuk Nickens are AFFIRMED. The appeal of Jeffery Powell is




                                              8
dismissed as to his conviction and sentence of imprisonment and the judgment as to him is

AFFIRMED in all other respects.

                                         FOR THE COURT:
                                         Catherine O’ Hagan Wolfe, Clerk of Court




                                           9
