12‐4402‐cr(L) United States v. Welch

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 11th day of February, two thousand sixteen.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 12‐4402‐cr(L) 12‐5004‐cr(Con) MICHAEL WELCH and ALLAN SNYDER, Defendants‐Appellants,

DANIEL METTLER, aka Boone, BETHLYN FELIX, PATRICK GRAHAM, aka Pete, STEVE CAYEA, ALLEN SNYDER, Defendants.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: Monica J. Richards, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

FOR DEFENDANT‐APPELLANT David R. Morabito, Law Office of David R. MICHAEL WELCH: Morabito, East Rochester, New York.

FOR DEFENDANT‐APPELLANT Roland Richard Acevedo, Scopetta ALLAN SNYDER: Seiff Kretz & Abercrombie, New York, New York.

Appeal from the United States District Court for the Western District of

New York (Siragusa, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED,

except that we REMAND for the district court to vacate defendant‐appellant Michael

Welchʹs sentence and to resentence him consistent with this order.

Following a jury trial in the district court, defendants‐appellants Michael

Welch and Allan Snyder were convicted of conspiracy and substantive counts relating

to the manufacturing of marijuana plants, in violation of

(a)(1),

841(b)(1)(A), 841(b)(1)(B), 846, and 856(a)(1). Welch appeals a judgment entered

October 26, 2012, sentencing him principally to 144 monthsʹ imprisonment. Snyder

appeals a judgment entered December 11, 2012, sentencing him principally to 204

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monthsʹ imprisonment.1 We assume the partiesʹ familiarity with the underlying facts,

procedural history, and issues on appeal.

Defendants raise principally the following issues: (1) the sufficiency of the

evidence, (2) an alleged Brady violation, (3) the intrastate nature of their alleged

conduct, (4) the enhancement of Snyderʹs sentence for possession of a weapon, and (5)

Welchʹs status as a career offender. We address each issue in turn.

1. Sufficiency of the Evidence

Welch challenges the sufficiency of the evidence supporting his

conviction. When a defendant challenges his conviction based on insufficiency of

evidence, we must determine ʺwhether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of a crime beyond a reasonable doubt.ʺ United States v. Temple,

(2d Cir. 2006) (quoting Jackson v. Virginia,

(1979)).

We identify no basis to disturb the juryʹs verdict based on the sufficiency

of the evidence. There was sufficient evidence to show that Welch conspired to

manufacture, and did manufacture, at least 100 marijuana plants. In particular, there

were several phone calls and text messages implicating Welch in the growing operation

at 13770 Savannah Spring Lake Road, where 484 marijuana plants were recovered in

individual Styrofoam cups beneath suspended, fluorescent lights. To the extent Snyder

1 On July 1, 2015, Snyder filed a motion to reduce his sentence. The district court granted the motion on September 25, 2015, reducing Snyderʹs sentence to 162 months.

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joins Welchʹs challenge to the sufficiency of the evidence, Snyderʹs claim is also without

merit. Snyder was at the center of the conspiracy, as evidenced by the marijuana‐

growing operation out of his house and on his property, numerous phone calls and text

messages, and testimony of co‐conspirators.

Both Welch and Snyder argue that because the roots had been removed

from the marijuana plants when they were seized by law enforcement officers, the

defendantsʹ due process rights were violated because they were unable to inspect the

roots to confirm that the marijuana plants were, in fact, ʺplantsʺ under the Sentencing

Guidelinesʹ definition. See U.S.S.G. § 2D1.1 cmt. 2 (defining a ʺplantʺ as an ʺorganism

having leaves and a readily observable root formationʺ). The substance of this

argument is really about the sufficiency of the evidence as both defendants argue that

the government failed to present evidence of root systems at trial.

There was sufficient evidence to establish that the marijuana plants had

identifiable root systems and met the definition of a ʺplant.ʺ Officer Roger LaClair

testified that, during the seizure of evidence at 13770 Savannah Spring Lake Road, he

and another officer together pulled 484 marijuana plants out of individual styrofoam

cups. He specifically testified that each plant had a root structure. Welch App. at 1147

(ʺAs [the plants] went into the bag, I confirmed every plant . . . had a root at the base of

the plant.ʺ). Officer Christopher Verstrate testified that he observed root structures on

the 362 plants that he pulled from the growing location at 11813 Wilson Street. The

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latter marijuana collection and counting process was also video‐recorded and played

for the jury. Finally, Investigator Kevin Kuntz testified that he processed the marijuana

evidence, which included drying the plants, cutting off their roots, and sending the

remaining material to the laboratory for THC testing.

2. Brady

Defendants also allege a Brady violation, in that they argue that the

government failed to preserve the marijuana plants, thereby depriving the defendants

of the right to inspect the plants. The argument fails, as nothing about the marijuana

evidence is exculpatory. See United States v. Coppa,

(2d Cir. 2001) (ʺ[A]

defendant must show that: (1) the Government, either willfully or inadvertently,

suppressed evidence; (2) the evidence at issue is favorable to the defendant; and (3) the

failure to disclose this evidence resulted in prejudice.ʺ).

3. Interstate Commerce

Welch argues that the Controlled Substances Act (the ʺCSAʺ) does not

apply to their conduct because the marijuana manufacturing and distribution activities

occurred only on an intrastate basis. An effect on interstate commerce, however, is not

an element of the offense, and therefore need not be established by the government to

support a conviction under the CSA. See United States v. Parkes,

(2d

Cir. 2007) (ʺUnder the CSA, an effect on interstate commerce is not an element . . . .ʺ).

Further, an as‐applied challenge to the CSA is foreclosed by the Supreme Courtʹs

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decision in Gonzales v. Raich, which affirmed Congressʹs finding that all drug dealing ‐‐

even those activities strictly local in nature ‐‐ has an effect on interstate commerce.

, 17‐22 (2005).

4. Weapon Enhancement

Snyder challenges his two‐level enhancement for possession of a

dangerous weapon under § 2D1.1(b)(1) of the Sentencing Guidelines, which requires a

two‐level increase ʺ[i]f a dangerous weapon (including a firearm) was possessedʺ in the

course of a narcotics conspiracy. During the search of Snyderʹs home, a loaded 12‐

gauge Beretta shotgun was found in his bedroom near eight ounces of marijuana and

$4,000 in cash. Snyder argues that the loaded gun was unrelated to the drug conspiracy

because, like the 25 other long guns found in the house, it was used for hunting

purposes only. It was undisputed that Snyder was an avid hunter and held a lifetime

hunting license. We review a sentencing courtʹs interpretation of the Guidelines de

novo, and its findings of fact for clear error. United States v. Santiago,

(2d

Cir. 2004) (per curiam). ʺThe sentencing courtʹs finding that a firearm was possessed in

connection with a drug offense for purposes of § 2D1.1 will not be overturned unless it

is clearly erroneous.ʺ United States v. Stevens,

(2d Cir. 1993).

While there was some dispute as to whether Snyder properly lodged an

objection to the Presentence Report (the ʺPSRʺ) or the enhancement or waived his

objection, the district court found in the alternative to waiver that the loaded gun was

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associated with the marijuana conspiracy and not used for hunting exclusively. Snyder

App. at 108 (ʺ[H]ad [the gun enhancement] been objected to . . . I would have found by

a preponderance of evidence that the government had established that enhancement

based on the facts of this case . . . .ʺ). The district court based its finding on the fact that,

while there were numerous unloaded hunting rifles found in Snyderʹs home, one

shotgun was loaded and in close proximity to bags of marijuana and $4,000 in cash in

the bedroom. The district courtʹs finding was not clearly erroneous. Application Note 3

clarifies that the enhancement ʺshould be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.ʺ U.S.S.G. §

2D1.1(b)(1) cmt. 3; see also United States v. Smith,

(2d Cir. 2000) (ʺ[O]nce

the government has established that a weaponʹs presence was reasonably foreseeable to

the defendant during conduct (i.e., the storage and cutting of drugs) relevant to the

offense (i.e., distribution of drugs) at issue, the enhancement will apply, unless the

defendant demonstrates that it is clearly improbable that the weapon was connected

with the drug offense.ʺ (citation omitted)).

5. Career Offender Status

Finally, Welch argues that the district court erred in finding that he is a

career offender because his prior New York State conviction for attempted second‐

degree burglary is a qualifying ʺcrime of violenceʺ under § 4B1.2(a) of the Sentencing

Guidelines. We agree that the district court erred.

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Under the Guidelines, a ʺcrime of violenceʺ is defined as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ‐‐

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). When a conviction follows a guilty plea to a statutory offense, we

employ a ʹmodified categorical approachʹ to determine whether the offense of

conviction constitutes a ʹcrime of violence.ʹʺ United States v. Walker,

(2d

Cir. 2010). The first step involves determining ʺwhether the statute of the prior

conviction criminalizes conduct that falls exclusively within the federal definition of a

predicate offense.ʺ

at 444 (quoting United States v. Savage,

(2d Cir.

2008)). If the statute of conviction criminalizes certain conduct that does not fall within

the Guidelinesʹ definition of a crime of violence, ʺthe government must demonstrate

that the conviction ʹnecessarilyʹ rested on facts identifying the conviction as one for a

crime of violence.ʺ United States v. Reyes,

(2d Cir. 2012) (quoting

Walker,

).

Initially, we conclude that Welchʹs statutory offense of conviction includes

conduct that does not fall within the Guidelinesʹ definition of a crime of violence. In

finding that Welchʹs 1992 conviction was for a crime of violence under § 4B1.2(a)(2), the

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district court stated that under New York law, attempted burglary in the second degree

always involves burglary of a dwelling. Welch App. at 2500. Second‐degree burglary

in New York, however, includes burglary of buildings other than dwellings. At the

time Welch was convicted, Penal Code § 140.25 made it a crime of burglary in the

second degree when an individual:

[K]nowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when:

(1) In effecting entry or while in the building or in immediate flight therefrom, he or another participate in the crime:

(a) Is armed with explosives or a deadly weapon; or

(b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the immediate use of a dangerous instrument; or

(d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

(2) The building is a dwelling.

(McKinney 1992) (emphasis added).

Similarly, second‐degree burglary of a building other than a dwelling

need not involve ʺuse of physical force,ʺ and thus a conviction under § 140.25 of the

Penal Law does not necessarily invoke the ʺuse of physical forceʺ clause of § 4B1.2(a)(1)

of the Guidelines. A person can be convicted of burglarizing a building other than a

dwelling in a way that ʺ[c]auses physical injury.ʺ

(1)(b). We

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have held that the ʺintentional causation of injury does not necessarily involve the use

of force,ʺ as it could be accomplished ʺnot by physical force, but by guile, deception, or

even deliberate omission.ʺ Chrzanoski v. Ashcroft,

(2d Cir. 2003)

(concluding that a Connecticut third‐degree assault conviction was not a predicate

ʺcrime of violenceʺ under the Immigration and Nationality Act). Likewise here, a

conviction of second‐degree burglary could be accomplished by ʺ[c]aus[ing] physical

injuryʺ without using physical force.

In addition, attempted second‐degree burglary is also no longer a

predicate offense under the residual clause of § 4B1.2(a)(2) in light of Johnson v. United

States, which held that that the ʺresidual clauseʺ of the Armed Career Criminal Act (the

ʺACCAʺ),

(e)(2)(B)(ii), is unconstitutionally vague.

(2015).

The stricken language from the ACCA ‐‐ ʺor otherwise involves conduct that presents a

serious potential risk of physical injury to anotherʺ ‐‐ is identical to the residual clause

in the career offender Guideline § 4B1.2(a)(2), and we have previously explained that

ʺauthority interpreting one phrase frequently is found to be persuasive in interpreting

the other phrase.ʺ United States v. Brown,

(2d Cir. 2008) (quoting

United States v. Palmer,

(2d Cir. 1995)).2 Prior to Johnson, attempted

2 Notably, since the Supreme Courtʹs decision in Johnson, the United States Sentencing Commission has amended § 4B1.2(a) to remove the residual clause under the ʺcrime of violenceʺ definition. See U.S. Sentencing Commission, Amendment to the Sentencing Guidelines, at 2‐3 (Jan. 21, 2016), http://www.ussc.gov/sites/default/files/pdf/amendment‐

10

second‐degree burglary would have qualified as a ʺcrime of violenceʺ under the

Guidelinesʹ residual clause. See Brown, 514 F.3d at 268‐69 (holding that New York

burglary in the third degree is a crime of violence under the residual clause); see also

United States v. Hurrell,

, 123‐24 (2d Cir. 2009) (per curiam) (same for

attempted burglary in the third degree). Indeed, the government concedes that Johnson

applies to the career offender Guidelines. Appelleeʹs Br. at 48 n.14. Accordingly,

Welchʹs conviction for second‐degree burglary does not qualify as a crime of violence

under the residual clause of § 4B1.2(a)(2).

Because the statute criminalizes conduct that does not fall exclusively

within § 4B1.2(a)(1)ʹs ʺuse of physical forceʺ clause or § 4B1.2(a)(2)ʹs enumerated

offenses, for the enhancement to apply, the government must have ʺshown that the plea

ʹnecessarilyʹ rested on a fact identifying the conviction as a predicate offense.ʺ Savage,

(quoting Shepard v. United States,

(2005)).

The district court found that Welch ʺpled to attempted burglary of a

dwelling,ʺ Welch App. at 2501‐02, without requiring the government to demonstrate

that the conviction ʺʹnecessarilyʹ rested on facts identifying the conviction as one for a

ʹcrime of violence,ʹʺ Reyes,

(quoting Walker,

). In looking

beyond the statutory definition to determine whether a conviction under a divisible

statute is a crime of violence, a district courtʹs inquiry is ʺcircumscribed.ʺ

A

process/reader‐friendly‐amendments/20160121_RF.pdf (effective August 1, 2016). ʺBurglary of a dwellingʺ was also removed from § 4B1.2(a)(2)ʹs enumerated offenses. Id.

11

sentencing court must limit itself ʺto examining the statutory definition, charging

document, written plea agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.ʺ Shepard,

.

In concluding that Welch pled to attempted burglary of a dwelling, the

district court relied on the PSRʹs factual description of the circumstances surrounding

the burglary conviction ‐‐ which include allegations that three dwellings were

burglarized, PSR ¶ 67. Courts, however, are prohibited from relying on facts in the PSR

to determine whether a conviction qualifies as a predicate offense. Reyes,

(ʺAs a general matter, reliance on a federal PSRʹs factual description of a defendantʹs

pre‐arrest conduct to determine whether a prior offense constitutes a ʹcrime of violenceʹ

under U.S.S.G. § 4B1.2(a)(1) is prohibited.ʺ). Here, the district court went beyond the

limited matters permitted in Shepard and relied instead on the factual description of the

offense in the PSR.

In sum, Welchʹs conviction for attempted burglary in the second degree

was not categorically a crime of violence, nor did the district court base its

determination that the conviction was for a crime of violence on one of the sources

approved in Shepard.3 As the career offender provision requires two predicate offenses,

3 The PSR also states that Welch pled guilty to attempted burglary in the third degree, PSR ¶ 67, which can also be accomplished by burglarizing a building other than a dwelling. See

(ʺA person is guilty of burglary in the third degree when he knowingly enters of remains unlawfully in a building with intent to commit a crime therein.ʺ). Therefore, for the same reasons, Welchʹs convictions for burglary in the third degree

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on this record, Welch does not qualify for the enhancement on the grounds relied on by

the district court.

* * *

We have considered all of defendantsʹ additional arguments and find

them to be without merit. For the reasons stated herein, the judgments of the district

court are AFFIRMED, except that we REMAND for the district court to vacate Welchʹs

sentence and to resentence him consistent with this order.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

do not qualify as a crimes of violence under § 4B1.2(a) absent the governmentʹs demonstration that one of the convictions necessarily rested on facts identifying it as a crime of violence, Reyes,

, as established by Shepard‐approved documents.

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