16‐2722‐cr United States v. Acoff

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 September, two thousand seventeen.

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

UNITED STATES OF AMERICA, Appellee,

v. 16‐2722‐cr

JOSHUA J. ACOFF, Defendant‐Appellant.

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FOR APPELLEE: BRIAN P. LEAMING, 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: CHARLES F. WILLSON, Federal Defenderʹs Office, Hartford, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Shea, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

On May 5, 2016, defendant‐appellant Joshua J. Acoff pled guilty to

possession with intent to distribute and distribution of cocaine base in violation of

(a)(1) and (b)(1)(C). On August 1, 2016, the district court sentenced him

principally to 84 monthsʹ imprisonment. Judgment was filed on August 3, 2016. Acoff

challenges the sentence on the grounds that the court misapplied the career offender

enhancement based on his prior state drug conviction, which caused the court to

miscalculate the resulting Guidelines range before imposing its sentence. We assume

the partiesʹ familiarity with the underlying facts, procedural history, and issues on

appeal.

At sentencing, the court identified three Guidelines ranges that could

arguably apply to Acoff: 151 to 188 months if the U.S.S.G. § 4B1.1 enhancement for

career offenders applied, 37 to 46 months if the enhancement did not apply, and an

adjusted range of 21 to 27 months pursuant to the courtʹs practice of eliminating

sentencing disparities between offenses for crack and powder cocaine. The court

acknowledged that the applicability of the Career Offender Guideline would not affect

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Acoffʹs sentence in light of its decision not to sentence Acoff within these Guidelines

ranges, but it proceeded to address the issue anyway ʺfor the record and also because,

as I said, I think district judges need guidance on this question . . . .ʺ App. 26. It

concluded that (1) Connecticut General Statute § 21a‐277, the statute underlying Acoffʹs

prior conviction, is a divisible statute; (2) the modified categorical approach applied;

(3) Acoffʹs conviction under § 21a‐277 was his second conviction for a ʺcontrolled

substance offenseʺ as defined in U.S.S.G. § 4B1.2(b); and thus (4) Acoff was eligible for

the career offender enhancement under U.S.S.G. § 4B1.1. The court therefore

determined that Acoffʹs applicable Guidelines range was 151 to 188 months. It then

sentenced Acoff to 84 monthsʹ imprisonment. This appeal followed.

We review the district courtʹs application of the Sentencing Guidelines de

novo and its factual findings for clear error. United States v. Kent,

(2d

Cir. 2016). ʺIf we ʹidentify procedural error in a sentence, but the record indicates

clearly that the district court would have imposed the same sentence in any event, the

error may be deemed harmless, avoiding the need to vacate the sentence and to remand

the case for resentencing.ʹʺ United States v. Mandell,

(2d Cir. 2014) (per

curiam) (quoting United States v. Jass,

(2d Cir. 2009)).

Here, the record plainly reflects that the district court would have

sentenced Acoff to 84 monthsʹ imprisonment even if it had not found him eligible for

the career offender enhancement. The judgment of conviction itself specifies:

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The non‐Guidelines sentence of 84 months reflects the Courtʹs determination that neither of the two arguably applicable Guidelines ranges ‐‐ the one applicable if the career offender guideline applied (which the Court determined it probably did) and the one applicable if it did not apply ‐‐ would result in a sentence that was sufficient but not greater than necessary to serve the purposes of sentencing. (The same was true of a sentence within the range that would apply after eliminating the crack/powder disparity).

App. 64. Moreover, the court indicated multiple times at sentencing that it would have

imposed the 84‐month sentence regardless of whether the career offender enhancement

applied. The court, for example, expressly stated that it ʺwould impose this sentence

even if [it] had reached a different conclusion as to the Guidelines and, specifically,

even if [it] had found that the Career Offender Guideline did not apply.ʺ App. 55‐56.

While it is true that ʺthe correct Guidelines range is ʹthe starting point and

the initial benchmarkʹ for federal sentencesʺ and ʺwe cannot lightly assume that

eliminating [an] enhancement[] from the Guidelines calculation would not affect the

sentence,ʺ United States v. Feldman,

, 459‐60 (2d Cir. 2011) (quoting Gall v.

United States,

(2007)), it is clear in this case that the courtʹs sentencing

decision was not improperly influenced by its application of the career offender

enhancement or calculation of the Guidelines ranges. At sentencing, the court

highlighted the seriousness of Acoffʹs offense, the fact that he committed the offense

during two terms of supervised release, his ʺgreat persistence in being a drug dealer,ʺ

and his ʺsustained failure to comply with the law.ʺ App. 52. It focused on the failure of

his prior federal sentence of 60 months to specifically deter his criminal activity and to

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protect the public from his conduct, considerations that ʺclearly called forʺ a longer

sentence, App. 53, and on the sentencing need to promote respect for the law given that

Acoff had committed his offense while on supervised release. The court concluded that

(1) a sentence within the career offender Guidelines range of 151 to 188 months would

be greater than necessary in this case, (2) sentences within the otherwise applicable

Guidelines ranges of 37 to 46 months and 21 to 27 months would be insufficient, and

(3) the sentence imposed should be longer than Acoffʹs prior sentence of 60 months.

The court then determined a sentence of 84 months was ʺsufficient, but not greater than

necessary to meet the purposes of sentencing most salient in this case,ʺ App. 55, and

explained that this sentence was appropriate regardless of whether the career offender

enhancement applied.

We conclude that any error arising out of the courtʹs application of the

career offender enhancement and calculation of the Guidelines ranges was harmless,

and we decline to vacate Acoffʹs sentence on this basis. While it is important that a

sentencing court correctly calculate the Guidelines range to arrive at the right starting

point, ʺ[t]here may be instances when, despite application of an erroneous Guidelines

range, a reasonable probability of prejudice does not exist. . . . The record in a case may

show, for example, that the district court thought the sentence it chose was appropriate

irrespective of the Guidelines range.ʺ Molina‐Martinez v. United States,

(2016); accord Mandell,

(declining to vacate sentence where

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calculation error was harmless and district court ʺwould have imposed the same

sentence in any eventʺ (quoting Jass,

)). This is such a case, as the district

courtʹs careful analysis and discussion show that the sentence it chose was appropriate

irrespective of the range.

We have considered Acoffʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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