16‐2915 United States v. Commerford

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 7th day of September, two thousand seventeen.

PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 16‐2915‐cr

BRADLEY COMMERFORD, Defendant‐Appellant.

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

FOR APPELLEE: SARALA V. NAGALA, Assistant United States Attorney (Marc H. Silverman, Assistant United States Attorney, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut.

FOR DEFENDANT‐APPELLANT: JAMES P. MAGUIRE, Assistant Federal Defender, for Terence S. Ward, Federal Defender, District of Connecticut, New Haven, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Thompson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Bradley Commerford appeals the judgment of

conviction entered August 15, 2016, after a guilty plea, convicting him of distributing

heroin to an individual under 21 years of age, in violation of

(a)(1) and

859. On August 12, 2016, the district court sentenced Commerford principally to 71

monthsʹ imprisonment. On appeal, Commerford challenges the procedural and

substantive reasonableness of his sentence. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

The record establishes that Commerford sold heroin in Connecticut in

January and February of 2016. On February 16, 2016, members of the Shelton Police

Department responded to a reported heroin overdose of an 18‐year‐old man. The 18‐

year‐old victimʹs 16‐year‐old girlfriend was present during her boyfriendʹs overdose

and medical resuscitation. Both later told law enforcement that they purchased the

heroin from Commerford. The 16‐year‐old said that she began regularly purchasing

heroin from him in January 2016. At least two other men overdosed from heroin

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purchased from Commerford during this time: a 22‐year‐old man suffered a non‐fatal

overdose on February 16, 2016, and a 23‐year‐old man suffered a fatal overdose on

February 17, 2016.

Commerford pleaded guilty to distributing heroin to an individual under

21 years of age, in violation of

(a)(1) and 859, in or about January

through February 2016. The record establishes that during this timeframe Commerford

sold heroin to at least two individuals who were then under the age of 21: the 18‐year‐

old man and his 16‐year‐old girlfriend. While the statute governs sales to anyone under

the age of 21, the Sentencing Guidelines provide for an additional enhancement if the

sale involves someone under the age of 18. See U.S.S.G. § 2D1.2(a)(3). Accordingly,

based on Commerfordʹs sales to the 16‐year‐old girlfriend, the parties stipulated to a

base offense level of 26 in the written plea agreement, pursuant to § 2D1.2(a)(3) of the

Guidelines. After subtracting three levels for acceptance of responsibility and factoring

in Commerfordʹs placement in criminal history category III, the parties anticipated a

guidelines range of imprisonment of 57 to 71 months.

On August 12, 2016, Commerford appeared for sentencing. The parties

agreed that the guidelines range was 57 to 71 months imprisonment. The district court

heard from defense counsel, Commerfordʹs brother, Commerford himself, government

counsel, and family members and a friend of the 23‐year‐old man who died. The

district court then sentenced Commerford to 71 monthsʹ imprisonment, the top of the

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recommended guidelines range. After objecting to the sentence, Commerford timely

appealed, challenging both the procedural and substantive reasonableness of his

sentence.

I. Procedural Reasonableness

We review the procedural reasonableness of a sentence under a

ʺdeferential abuse‐of‐discretion standard.ʺ United States v. Aldeen,

(2d

Cir. 2015) (quoting Gall v. United States,

(2007)). ʺA district court commits

procedural error where it fails to calculate the Guidelines range . . . , makes a mistake in

its Guidelines calculation, or treats the Guidelines as mandatory.ʺ United States v.

Cavera,

(2d Cir. 2008) (en banc) (internal citations omitted). A district

court also commits procedural error when it ʺdoes not consider the § 3553(a) factors,ʺ

ʺrests its sentence on a clearly erroneous finding of fact,ʺ or ʺfails adequately to explain

its chosen sentence.ʺ Id.

Section 2D1.2 of the Sentencing Guidelines governs drug offenses

involving underage individuals and provides for a base offense level of 26 where ʺthe

offense involved a person less than eighteen years of age.ʺ U.S.S.G. § 2D1.2(a)(3). At

sentencing, Commerford argued that § 2D1.2(a)(3) was overbroad because it treats

dissimilar offenses similarly in that it fails to distinguish ʺbetween a 40‐year‐old who

targets children and a teenager selling to friends.ʺ Appʹx 47. On appeal, Commerford

reiterates this argument and asserts that the district court failed to recognize its

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authority to vary from the guidelines based on his policy‐based challenge to

§ 2D1.2(a)(3). This argument fails.

There is no indication in the record that the district court misunderstood

its authority to vary from § 2D1.2(a)(3) based on a policy disagreement. See United

States v. Robinson,

(2d Cir. 2015) (ʺIn the absence of clear evidence of a

substantial risk that the judge misapprehended the scope of his departure authority, we

presume that a sentenc[ing] judge understood the scope of his authority.ʺ (citation

omitted)). The district court explicitly considered and rejected Commerfordʹs policy‐

based challenges to § 2D1.2(a)(3). Specifically, the district court ʺnote[d] that thereʹs a

request that I consider the nature of the base offense level of 26 in fashioning a sentence

here.ʺ Appʹx 200‐01. In responding to Commerfordʹs policy argument that

§ 2D1.2(a)(3) is overbroad, the district court explained that ʺcourts have discretion to

take into account the individual circumstances of the defendant whoʹs under

consideration. Thatʹs expected to happen and Iʹve done that here.ʺ Appʹx 201. In

responding to Commerfordʹs argument that § 2D1.2(a)(3) is ʺvery rarely applied,ʺ Appʹx

167, the district court reasoned ʺthat this is a provision thatʹs not used very frequently

. . . because we . . . donʹt have a lot of people who are engaged in selling to teenagers

who wind up getting federally prosecuted because their conduct does not rise to that

level of seriousness,ʺ Appʹx 201. The district court thus considered and rejected

Commerfordʹs policy‐based challenges to § 2D1.2(a)(3).

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II. Substantive Reasonableness

A sentence imposed by the district court is substantively unreasonable

only if it ʺcannot be located within the range of permissible decisions.ʺ Cavera,

(quoting United States v. Rigas,

(2d Cir. 2007)). Accordingly, we

will set aside sentencing decisions only in ʺexceptional cases,ʺ as we will not substitute

our judgment for that of the district court.

The district court imposed a within‐guidelines sentence of 71 monthsʹ

imprisonment, citing Commerfordʹs prior arrests (including two for drug trafficking

offenses) and his status on probation when he committed the instant offense, the

overdoses, the fact that Commerford was on his way to purchase more drugs at the

time of his arrest, his lack of sincere remorse, and the fact that a different charging

decision could have been made, based on the death of the individual who purchased

drugs from Commerford, which would have triggered a twenty‐year mandatory

minimum term of imprisonment. The district courtʹs sentence was not substantively

unreasonable.

Commerford argues that the district court gave insufficient weight to a

number of mitigating considerations, including his own heroin addiction, his history of

trauma and the resulting post‐traumatic stress disorder, his youth, and the small

quantity of heroin involved in the offense. The district court carefully considered these

factors, however, and reasonably determined its sentence of 71 monthsʹ imprisonment

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would achieve specific deterrence and ʺjust punishmentʺ for an ʺegregiousʺ offense.

Appʹx 207.

Commerford also argues that his placement in criminal history category

III overstated the seriousness of his past criminal activity because he never served any

prior term of imprisonment. The district court, however, reviewed Commerfordʹs three

arrests in 2014, his court‐ordered substance abuse treatment in 2015, the sentences

imposed in state court in 2016, and Commerfordʹs status on probation when he

committed the instant offense, and concluded ʺ[i]t is not at all inappropriate that the

defendantʹs criminal history points are taken for what they are, especially in light of the

fact that he was continuing to engage in criminal conduct when he was on probation.ʺ

Appʹx 203.

Accordingly, the district courtʹs sentence was not substantively

unreasonable.

. . .

We have considered all of Commerfordʹs remaining arguments and

conclude they are without merit. Accordingly, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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