15-842-cr, 15-3146-cr United States v. Knowles

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 6th day of December, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR., ROBERT D. SACK, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee, 15‐842‐cr v. 15‐3146‐cr

MICHAEL ANDREWS, GLEN BASKET, AKA BIG MUGS, JEROME BROOKS, AKA ROMY, ROBERT BRUCE, AKA ROB LOOSE, STANLEY BRUCE, AKA SB, MARCUS CHAMBERS, AKA CHINO, GERALD CHARLES, AKA TWIN, GERARD CHARLES, AKA TWIN, MICHAEL CLEMONS, AKA CARTIER, QUEJUAN COLLINS, AKA JIGGER, MICHAEL DENNIS, RAYVON DIAZ, AKA CB, JOSEPH DUQUESNE, AKA JOE LITE, JAMES EDMONSON, AKA DEWEY, KYLE ELLISON, CHRISTOPHER GLIVENS, AKA YOUNG GUNNERS, CHRISTOPHER GRANGER, AKA CRISPY, DEXTER GRANGER, AKA COMPTON, KAREEM GRANGER, AKA REEM, RYAN GRANGER, AKA RY‐G, DAQUAN GREENE, AKA DAY DAY, PAUL HARDY, JASON HARRIS, AKA J‐ROCK, TYREE HUGHES, AKA CAPO, WILLIE JACKSON, AKA WOP, MARK JONES, AKA BANGER, RASHAD MCNULTY, AKA ROGER, DONTE MELVIN, AKA PUDGY, ANTHONY NORTHOVER, AKA ZIMBABWE, MARCUS ODOM, AKA MEECH, DOMINICK PALLANO, AKA DOM, SHAWN PATTERSON, AKA SP, DONALD PEGUES, AKA VEGAS, DEXTER PICKETT, AKA DEX DIGS, MARQUISE PICKETT, AKA FRESH GUALLA, BERNARD POTILLO, AKA BERNIE, TRAVIS ROBINSON, AKA 730, MARCUS SHEPPERD, AKA DO DIRT, AKA PESCI, ERIC SMITH, AKA E, SHARIF STEWART, AKA FUBU, JAMES SUMMERS, AKA SMOKE, DEXTER THOMAS, AKA DEX, RONNELL THOMAS, EDWARD WHITNEY, AKA EDRO, ANDREW WILSON, AKA DREW, RAKEEM WILSON, Defendants,

SAMUEL SUTTON, AKA THUG, STEVEN KNOWLES, AKA MANNY FRESH, Defendants‐Appellants.

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

FOR APPELLEE: Margaret Garnett, Jessica Ortiz, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT Herman Kaufman, Old Greenwich, STEVEN KNOWLES: Connecticut.

FOR DEFENDANT‐APPELLANT Nicholas J. Pinto, New York, New York. SAMUEL SUTTON:

2 Appeal from the United States District Court for the Southern District of

New York (Karas, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that (1) the judgment of the district court as to Steven

Knowles is AFFIRMED, and (2) attorney Nicholas J. Pintoʹs motion to be relieved as

counsel to Samuel Sutton, and the governmentʹs motions to dismiss Suttonʹs appeal of

his terms of imprisonment, supervised release, and forfeiture, and to summarily affirm

his conviction and special assessment are GRANTED.

Defendants‐appellants Steven Knowles and Samuel Sutton appeal from

judgments of conviction entered in the district court on October 5, 2015 and March 10,

2015, respectively. Knowles was convicted following a four‐week jury trial of

conspiracy, racketeering, narcotics trafficking, the murder of Christopher Cokley, and

related counts. Sutton pled guilty to conspiracy to distribute and possess with intent to

distribute more than 280 grams of cocaine base. We assume the partiesʹ familiarity with

the underlying facts, procedural history, and issues on appeal.

1. Knowles

Knowles contends that the evidence was insufficient to convict him of

conspiracy to commit murder in aid of racketeering in connection with the Cokley

murder.

In an appeal challenging the sufficiency of the evidence, we review the

evidence in ʺthe light most favorable to the government and credit every inference that

3 the jury might have drawn in the governmentʹs favor.ʺ United States v. Salameh,

(2d Cir. 1998) (per curiam). The jury verdictʹs must be upheld if ʺany rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.ʺ Jackson v. Virginia,

(1979). The credibility of a testifying

witness is the province of the jury and not the reviewing court. See United States v.

OʹConnor,

(2d Cir. 2011).

The government presented testimony from numerous cooperating

witnesses regarding Knowlesʹs involvement in the murder conspiracy, and the jury was

entitled to credit that testimony over Knowlesʹs arguments. Furthermore, Knowles cites

no authority for his argument that the government had to prove that Knowles ʺwas the

actual shooter, or [that] he was armed when the incident occurredʺ to sustain a

conviction. Knowles Br. at 5. Nor does the governmentʹs failure to introduce the

murder weapon or testimony that Knowles was seen firing a weapon at all points

during the shooting require reversal. Accordingly, we conclude that there was

sufficient evidence to convict Knowles of conspiracy to commit murder in aid of

racketeering.

2. Sutton

Suttonʹs attorney moves to be relieved as counsel pursuant to Anders v.

California,

(1967). Before granting an Anders motion, we must be satisfied

that (1) ʺcounsel has diligently searched the record for any arguably meritorious issue in

support of his clientʹs appealʺ; and (2) ʺdefense counselʹs declaration that the appeal

4 would be frivolous is, in fact, legally correct.ʺ United States v. Burnett,

(2d Cir. 1993).

Sutton pled guilty pursuant to a plea agreement in which he waived his

right to appeal ʺany sentence within or below the Stipulated Guidelines Range of 135 to

168 months of imprisonment, . . . any term of supervised release that is less than or

equal to the statutory maximum[, or] . . . any forfeiture amount that is less than or equal

to $5,000.ʺ App. at 57‐58. A defendantʹs knowing and voluntary waiver of his right to

appeal is enforceable. United States v. Gomez–Perez,

(2d Cir. 2000).

The record demonstrates that Suttonʹs waiver was knowing and

voluntary, and that the district court substantially complied with Rule 11 in the plea

allocution. The one variance ‐‐ the district court did not explain that the appeal waiver

also applied to the non‐imprisonment components of the sentence ‐‐ does not rise to the

level of plain error. See United States v. Cook,

(2d Cir. 2013). Therefore,

Sutton may not appeal his term of imprisonment or supervised release or his forfeiture.

Furthermore, neither Suttonʹs guilty plea nor the special assessment, the only

components of the judgment not covered by the appeal waiver, presents non‐frivolous

issues for appeal. Accordingly, counselʹs motion to be relieved, and the governmentʹs

motions to dismiss Suttonʹs appeal of his term of imprisonment, term of supervised

release, and forfeiture, and to summarily affirm his conviction and special assessment

are granted.

5 We have considered all of the appellantsʹ remaining arguments and find

them to be without merit. Accordingly, for the reasons stated above, the judgment of

the district court as to Knowles is AFFIRMED. Suttonʹs appeal is DISMISSED as to his

sentence of imprisonment, supervised release, and forfeiture, and the judgment as to

him is AFFIRMED in all respects.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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