14‐3812 United States v. Reed

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 16th day of October, two thousand fifteen.

PRESENT: CHESTER J. STRAUB, BARRINGTON D. PARKER, RICHARD C. WESLEY, Circuit Judges. ______________________

UNITED STATES OF AMERICA,

Appellee,

‐v.‐ No. 14‐3812‐cr

LAMONT REED, aka L‐Wop,

Defendant‐Appellant. ______________________

FOR APPELLANT: Walter C. Bansley, IV, Bansley Law Offices, LLC, New Haven, CT.

1 FOR APPELLEES: Anthony E. Kaplan, Sandra S. Glover, Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney for District of Connecticut, New Haven, CT.

Appeal from the United States District Court for District of Connecticut (Warren W. Eginton, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the defendant’s sentence is AFFIRMED.

On November 7, 2013, Defendant Lamont Reed pled guilty to one count

of conspiracy to possess with intent to distribute 28 grams or more of cocaine

base, in violation of

(a)(1), 841(b)(1)(B)(iii), 846. After a

sentencing hearing, Reed was sentenced to 110 months’ imprisonment. On

appeal, he challenges, both through counsel and proceeding pro se, the

procedural reasonableness and substantive reasonableness of his sentence. In

sentencing, “[w]e review the work of district courts under a deferential abuse‐of‐

discretion standard.” United States v. Cavera,

(2d Cir. 2008) (en

banc) (internal quotation marks omitted). We assume the parties’ familiarity with

the facts and the record below, which we reference only as necessary to explain

our decision.

A sentence is procedurally unreasonable if the district court “fails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the

2 Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails adequately to

explain the chosen sentence.” United States v. Robinson,

(2d Cir.

2012). We review “the district court’s interpretation of the Sentencing Guidelines

de novo and its findings of fact for clear error.” United States v. Phillips,

(2d Cir. 2005). The statute further requires that the district court must

“state in open court the reasons for its imposition of the particular sentence.”

(c).

Reed first argues, through counsel, that the District Court failed to

consider the “nature and circumstances of the offense” properly, as required by

§ 3553(a), specifically failing to consider Reed’s limited role in the enterprise. We

disagree. Even if the record were not clear, we would presume “in the absence

of record evidence suggesting otherwise . . . that a sentencing judge has faithfully

discharged her duty to consider the statutory factors.” United States v.

Verkhoglyad,

(2d Cir. 2008) (internal quotation marks omitted).

Here, there is no need to presume, as Judge Eginton clearly stated his agreement

with the Government’s contention that Reed’s role was not minor, Gov’t App. 34,

3 but nonetheless set the sentence at the bottom of the Guidelines range based on

defense counsel’s arguments.

Reed next argues, also through counsel, that the District Court erred in

failing to consider the gross disparities between sentences for offenses involving

crack and powder cocaine. It is clear the argument regarding crack‐to‐powder

ratios was made to the District Court and the judge considered it in his

sentencing. Although the District Court stated that it agreed “philosophically”

with the 1:1 ratio, it determined that it would “stick[] to a uniform approach” in

order to avoid disparity in sentencing between defendants in the same case.

Gov’t App. 32–33. Uniform sentencing of codefendants is a legitimate (but not

compulsory) consideration in sentencing, see United States v. Williams,

(2d Cir. 2008), and thus the District Court did not abuse its discretion in

sentencing Reed under a ratio used for his codefendants as well.

In his supplemental pro se brief, Reed mounts three additional challenges

to his sentencing. Before proceeding, we pause to note that we construe

arguments in pro se appellate briefs “liberally and interpret them to raise the

strongest arguments they suggest.” Wright v. Commissioner,

(2d

Cir. 2004).

4 Reed argues the District Court improperly applied the sentencing

guideline for calculating prior criminal history in two ways. First, he contends

that the Guidelines always require that sentences in the same charging

instrument or imposed on the same day be counted as a single sentence.

Reviewing the Guidelines de novo, we find Reed’s argument inconsistent with the

plain text: sentences are only counted as a single sentence “[i]f there is no

intervening arrest,” U.S.S.G. § 4A1.2(a)(2), and Reed’s two sentences—one for

carrying a dangerous weapon and the second for failing to appear on that

charge—were separated by such an arrest. Second, Reed contends that the

District Court incorrectly counted a partially suspended sentence as over one

year and one month in violation of U.S.S.G. § 4A1.2(e). Again, Reed’s argument

is inconsistent with the plain text: Reed’s parole on the suspended sentence was

revoked, which under the Guidelines, combines the time he initially served with

the time to which he was sentenced upon revocation, U.S.S.G. § 4A1.2(k). Thus,

the District Court committed no error in calculating Reed’s prior criminal

history.

Reed next argues the District Court was obligated to order a competency

hearing when, during the sentencing colloquy, Reed admitted to taking other

5 inmates’ medication. A district court is required to order a competency hearing

“on its own motion, if there is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect rendering him mentally

incompetent.”

(a) (emphasis added). There are “no fixed or

immutable signs which invariably indicate the need for further inquiry,” and a

district court’s decision that reasonable cause is absent “is reviewed only for

abuse of discretion.” United States v. Quintieri,

(2d Cir. 2002)

(internal quotation marks omitted). The District Court did not abuse its

discretion in failing to hold a competency hearing. Reed’s statements that he

took medication in jail did not indicate he had taken them at the time of

sentencing, and he had in fact testified under oath just previously that he was not

under the influence of drugs or alcohol. Gov’t App. 20–21. The District Court

was entitled to rely on this sworn statement, cf. United States v. Hernandez,

(2d Cir. 2001) (per curiam), especially when Reed’s defense counsel

did not suggest his client was unable to assist in his own defense, see United

States v. Kirsh,

(2d Cir. 1995), and when Reed himself engaged

with the District Court in a clearly competent manner, cf. United States v. Lora,

(2d Cir. 1990).

6 Next, Reed argues that he was sentenced for a quantity of crack cocaine—

203 grams—that was unsupported by the facts. However, multiple times in

proceedings below, Reed both personally and through counsel agreed not to

contest the 203‐gram quantity, which waives any such argument on appeal. See

United States v. Jackson,

(2d Cir. 2003). Nevertheless, mindful of

our obligation to construe pro se filings liberally and in their strongest light, we

interpret Reed’s brief to argue that the explicit agreement to the quantity was

procured by coercion—specifically, the Government’s threat to withdraw the

three‐level reduction in offense level available for cooperating defendants under

U.S.S.G. § 3E1.1.

In such circumstances, “the relevant inquiry is whether the sentencing

stipulation was informed and uncoerced on the part of the defendant, not

whether it is factually sound.” Libretti v. United States,

(1995).

Reed was clearly fully informed of the consequences of the agreement, so the

question is whether the threat of removing the cooperation benefit is sufficiently

coercive to override Reed’s waiver. We hold it is not. The Supreme Court has

approved the use of incentives to encourage cooperation in criminal trials, even

if it “clearly may have a discouraging effect on the defendant’s assertion of his

7 trial rights.” Corbitt v. New Jersey,

(1978) (internal quotation

marks omitted). Reed’s decision to accept a stipulated gram amount in order to

avoid a gram hearing constituted a strategic choice, not a coerced one.

Consequently, because Reed voluntarily waived his right to contest the gram

amount, his arguments to the contrary cannot be heard on appeal.

Finally, in his counseled brief, Reed challenges the substantive

reasonableness of his sentence on two grounds: his limited participation in the

offense and the disparity inherent in the Guidelines’ crack‐to‐powder ratio. 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.” Cavera,

(internal quotation marks

omitted). Such is not the case here. The District Court here was well within its

discretion to conclude, as it did, that Reed substantially participated in a serious

offense and that the bottom of the Guidelines range was sufficient to achieve the

goals of § 3553(a). Cf. United States v. Fernandez,

(2d Cir. 2006)

(“[I]n the overwhelming majority of cases, a Guidelines sentence will fall

comfortably within the broad range of sentences that would be reasonable in the

particular circumstances.”). Consequently, Reed’s sentence is hardly the “rare

8 case” where the sentence “was shockingly high, shockingly low, or otherwise

unsupportable as a matter of law.” United States v. Rigas,

(2d

Cir. 2009).

For the reasons stated above, the defendant’s sentence is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

9