18‐1218‐cr United States v. Glass

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 May, two thousand nineteen.

PRESENT: AMALYA L. KEARSE, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 18‐1218‐cr

DAVID GLASS, Defendant‐Appellant.

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FOR APPELLEE: Justin V. Rodriguez, Karl Metzner, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: Darrell Fields, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, New York.

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

New York (Sullivan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Defendant‐appellant David Glass appeals from a judgment of conviction,

entered April 11, 2018, following his guilty plea to one count of possession of

ammunition by a convicted felon, in violation of

(g)(1). He was

sentenced principally to 120 monthsʹ imprisonment ‐‐ the statutory maximum term and

an upward variance from his United States Sentencing Guidelines (ʺGuidelinesʺ) range

of 84 to 105 monthsʹ imprisonment. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

Glass challenges the procedural and substantive reasonableness of his

sentence, which we review under ʺa deferential abuse‐of‐discretion standard.ʺ Gall v.

United States,

(2007). ʺIn reviewing Guidelines calculations, we apply

a de novo standard to legal conclusions,ʺ including whether a defendantʹs prior

conviction is a qualifying predicate for a sentencing enhancement, and ʺwe accept the

sentencing courtʹs factual findings unless they are clearly erroneous.ʺ United States v.

Walker,

(2d Cir. 2010).

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A. Procedural Reasonableness

As to his procedural challenge, Glass argues that the district court erred in

concluding that his 2003 conviction for first‐degree robbery, in violation of

, constituted a ʺcrime of violenceʺ as defined in U.S.S.G. § 4B1.2(a) of the

November 2016 Guidelines for the purpose of enhancing his base offense level,

pursuant to U.S.S.G. § 2K2.1(a)(2). Glassʹs argument, however, is foreclosed by our

recent decision in United States v. Moore, which held that New York robbery in the third‐

degree is categorically a crime of violence under U.S.S.G. § 4B1.2(a)ʹs identically worded

force clause of the 2015 Guidelines.

(2d Cir. 2019); see also United States

v. Pereira‐Gomez,

(2d Cir. 2018) (holding all degrees of New York

robbery qualify as crimes of violence under force clause of separate, but nearly

identical, provision of 2014 Guidelines); cf. Stokeling v. United States, ‐‐‐ U.S. ‐‐‐,

(2019) (rejecting similar challenge to Floridaʹs robbery statute under identically

worded force clause of Armed Career Criminal Act (ʺACCAʺ)); United States v. Thrower,

(2d Cir. 2019) (per curiam) (holding New York robbery in the first

degree is a violent felony under ACCAʹs force clause). Accordingly, the district court

correctly held that Glassʹs 2003 conviction for New York robbery in the first degree was

a crime of violence and thus it did not procedurally err in calculating Glassʹs base

offense level.

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B. Substantive Reasonableness

We also conclude that Glassʹs sentence is substantively reasonable, even

though it was the maximum term authorized by statute and exceeded the high end of

his Guidelines range by 15 months. In reviewing for substantive reasonableness, we

ʺtake into account the totality of the circumstances, including the extent of any variance

from the Guidelines range,ʺ but we ʺmust give due deference to the district courtʹs

decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of the

variance.ʺ Gall,

. A major deviation from the Guidelines range, however,

ʺshould be supported by a more significant justification than a minor one.ʺ

.

At sentencing and in its Statement of Reasons, the district court explained

in detail its upward variance decision, expressly noting its intent to capture the

seriousness of Glassʹs offense: robbing someone at gunpoint; discharging a firearm five

times in a densely populated residential neighborhood while fleeing the scene;

abandoning the still‐loaded firearm, which was not recovered for about 26 days, in

nearby bushes; and committing the offense while on state parole. The district court

further noted that Glassʹs criminal history included two prior robbery convictions, one

of which involved a ʺbrutal assaultʺ on a victim and resulted in a sentence of 96 monthsʹ

imprisonment. Hence, it was entirely reasonable for the district court to conclude that a

lengthier sentence was necessary to specifically deter Glass. Accordingly, the district

courtʹs consideration of Glassʹs criminal history, the need for specific deterrence, and

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the nature and circumstances of Glassʹs offense reasonably justified an above‐

Guidelines and statutory maximum sentence.

The specific arguments Glass raises on appeal are unavailing. Glass first

asserts that his statutory maximum sentence does not credit his acceptance of

responsibility. Although the district court granted Glass a three‐offense level reduction

for pleading guilty for purposes of calculating his Guidelines range, it still had the

discretion to impose a higher sentence after considering all the circumstances. Indeed,

district courts are to use the Guidelines as an ʺinitial benchmark,ʺ and then make an

informed and individualized sentencing determination, taking into account all the

statutory factors. United States v. Cavera,

(2d Cir. 2008) (en banc)

(internal quotation marks omitted). The district court concluded that the seriousness of

Glassʹs offense and the danger he posed to the community outweighed any mitigating

factors, including his acceptance of responsibility, such that an upward variance was

warranted. It acted within its discretion in doing so.

Glass also argues that the district courtʹs basis for its upward variance was

identical to its basis for applying a four‐offense level enhancement pursuant to U.S.S.G.

§ 2K2.1(b)(6)(B). This argument, however, misperceives the purpose of the

enhancement, which simply punishes the possession or use of a firearm or ammunition

in connection with any felony offense. U.S.S.G. § 2K2.1(b)(6)(B). Accordingly, the

enhancement did not account for the particulars of Glassʹs offense, which included

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discharging the firearm five times in a densely populated neighborhood and discarding

the still‐loaded gun while fleeing.

On this record, we conclude that this is not one of the ʺexceptional cases

where the trial courtʹs decision cannot be located within the range of permissible

decisions.ʺ Cavera,

(internal quotation marks omitted).

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We have considered Glassʹs 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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