20-2655 United States v. Wynn

United States Court of Appeals for the Second Circuit

AUGUST TERM 2021

No. 20-2655

UNITED STATES OF AMERICA, Appellee,

v.

RASHAWN WYNN, FKA SEALED DEFENDANT #9, WORMY, Defendant-Appellant. *

On Appeal from the United States District Court for the Northern District of New York Frederick J. Scullin, Jr., Judge.

ARGUED: OCTOBER 20, 2021 DECIDED: JUNE 15, 2022

*The Clerk of Court is respectfully directed to amend the official caption as set forth above. Before: CALABRESI and POOLER, Circuit Judges, and KORMAN, District Judge. **

Appeal from a judgment of the United States District Court for the Northern District of New York (Scullin, Jr., J.) entered upon a plea of guilty convicting Rashawn Wynn for conspiring to engage in a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act,

(d). Wynn argues that the district judge erred by applying a two-level dangerous weapons increase to his Guidelines offense level. Wynn also argues he was entitled to a mitigating role adjustment to his offense level due to his limited role in the racketeering enterprise. We reject Wynn’s first argument but conclude that the district court did not adequately explain its decision to deny Wynn a mitigating role adjustment. We therefore vacate Wynn’s sentence and remand for resentencing.

VACATED AND REMANDED.

ALBERT J. MILLUS, JR., ESQ., Hinman, Howard & Kattell, LLP, Binghamton, New York, for Defendant- Appellant.

NICOLAS COMMANDEUR, Assistant United States Attorney, for Antoinette Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, New York, for Appellee.

Judge Edward R. Korman, United States District Judge for the Eastern District of New **

York, sitting by designation. 2 KORMAN, District Judge:

Rashawn Wynn was convicted, pursuant to a guilty plea, of conspiracy

to engage in a pattern of racketeering activity, in violation of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”),

(d).

The charge was based on his membership in the Syracuse-based 110 Gang

and, more specifically, his distribution, in five separate transactions, of a

total of 42.2 grams of cocaine base (“crack cocaine”). Wynn apparently

received less than $2500 for these sales, which ultimately resulted in a

sentence of ninety-two months’ imprisonment—the low end of the

Sentencing Guidelines range the district judge calculated.

On appeal, Wynn challenges two factors upon which his sentence was

based: (1) the district judge’s decision to apply a two-level increase for

possession of a dangerous weapon in connection with narcotics distribution,

see U.S.S.G. § 2D1.1(b)(1), and (2) the district judge’s refusal to apply a

mitigating role adjustment, see U.S.S.G. § 3B1.2. Because Wynn does not

argue that he could not reasonably foresee other 110 Gang members’

possession of firearms, we reject his first challenge. Nevertheless, we find

3 merit in his second. Wynn’s conviction and sentence stem from his role in

furthering the 110 Gang’s violent and extensive criminal enterprise. Yet the

district judge failed to analyze Wynn’s criminal conduct against the

backdrop of the criminal conduct of other 110 Gang members even though

such an analysis might well have qualified Wynn for a mitigating role

adjustment.

BACKGROUND

The 110 Gang operated a violent and extensive criminal enterprise in

a specifically defined exclusive multiblock area in Syracuse, New York

beginning in at least 2012. The gang’s activities included a drug distribution

business supported by violence, including the use of firearms, and theft

accomplished through counterfeit credit cards. The gang also engaged in

violence unconnected to its drug business. In all, gang members other than

Wynn committed at least ten shootings and two stabbing attempts during

the indictment period, which covered 2012 through 2018.

In his plea agreement, Wynn admitted that he was a member of the

110 Gang from at least 2012 through October 2018, that he sold 42.2 grams

4 of crack cocaine, in five transactions, and that he “was able to possess and

distribute” that cocaine “[b]y virtue of his membership in the 110 Gang.”

App’x 56-57. Wynn, however, did not allocute to engaging in the gang’s

most serious conduct. The U.S. Attorney acknowledged at Wynn’s plea

allocution that he would have been prepared to prove only that Wynn

carried out the five crack cocaine sales recounted in the plea agreement.

There was no evidence that Wynn either engaged in any of the gang’s violent

activities and financial crimes or that he played a role in coordinating any

aspect of the gang’s operations. The drug transactions he completed all took

place within one seven-month period and apparently produced less than

$2500. Indeed, Wynn was incarcerated for four years of the six-year period

covered by the RICO conspiracy alleged in the indictment.

The PSR, though, did not limit itself to a discussion of Wynn’s criminal

activity. Instead, it listed each of the 110 Gang’s thirty-eight overt acts

alleged in the indictment and prefaced that list with a ten-page overview

discussing the nature and extent of the 110 Gang’s criminal enterprise.

Notably, Wynn’s name did not appear once in that prefatory narrative.

5 Probation calculated a Guidelines base offense level of 24. It then

increased that calculation by two levels pursuant to Guidelines section

2D1.1(b)(1) because the evidence showed that “110 gang members routinely

possessed and used firearms in furtherance of their criminal activities

including the distribution of crack cocaine within their territory.” Wynn’s

offense level was then reduced by three levels because of his acceptance of

responsibility and timely guilty plea, leading to a total offense level of 23.

When combined with Wynn’s criminal history category of VI, that offense

level produced a Guidelines recommended range of 92 to 115 months’

imprisonment.

Wynn raised two objections to Probation's calculations, that: (1) the

two-level weapons enhancement was unwarranted because he did not

possess a dangerous weapon in connection with the charged offense; and (2)

he should receive “at least a two-point reduction based on his minor role in

the offense” pursuant to Guidelines section 3B1.2. At sentencing, the district

judge (Scullin, Jr., J.) rejected Wynn’s arguments and “accept[ed] and

adopt[ed] the factual information . . . as well as the calculations” in the PSR.

6 App’x at 126. He explained the weapons enhancement applied because it

was “pretty clear . . . that members of the 110 gang were involved with

weapons . . . they called community guns” and, “as part of [Wynn’s]

membership [in] the 110 gang, [he is] responsible for actions [other gang

members] take . . . that further[] the criminal conspiracy” even if he was not

“personally there.” App’x at 125-127. The district judge denied Wynn’s

request for a role reduction reasoning that “it’s pretty clear that [Wynn] was

also a long-time member of the 110 gang . . . [a]nd I cannot find that [Wynn

is] less culpable than anybody else that was involved in this conspiracy—or

the organization here.” App’x at 125. The district judge sentenced Wynn

principally to 92 months’ imprisonment. This appeal followed.

ANALYSIS

“This Court reviews a district court’s application of the Guidelines de

novo, while factual determinations underlying a district court’s Guidelines

calculation are reviewed for clear error.” United States v. Cramer,

(2d Cir. 2015). “A finding of fact is clearly erroneous only if, after

reviewing all of the evidence, this Court is left ‘with the definite and firm

7 conviction that a mistake has been committed.’”

(quoting Anderson v. City

of Bessemer City,

(1985). We address each of Wynn’s

arguments in turn.

I. The Dangerous Weapon Enhancement

“For a defendant convicted of a RICO offense in violation of

, the Guidelines base offense level is the higher of 19 or the offense

level that would be applicable to the defendant’s underlying racketeering

activities.” United States v. Miller,

(2d Cir. 1997) (citing

U.S.S.G. § 2E1.1)). In this case, the latter alternative applied. Wynn’s

“underlying racketeering activity” consisted of selling 42.2 grams of crack

cocaine. U.S.S.G. § 2E1.1(a)(2). Guidelines section 2D1.1, which prescribes

“the offense level applicable to” such a narcotics offense, id. § 2E1.1(a)(2),

provides a base offense level of 24 for Wynn’s actions. Id. § 2D1.1(a)(5), (c)(8).

On that much the parties agree.

But Wynn disputes the district judge’s decision to adopt the PSR’s

recommendation to add two levels to his offense level pursuant to section

2D1.1(b)(1), which calls for such an increase “[i]f a dangerous weapon

8 (including a firearm) was possessed” in connection with the narcotics

offense. Id. § 2D1.1(b)(1). While Wynn admitted that 110 Gang members

used firearms to police their territory and facilitate the gang’s drug trade, he

argues that section 2D1.1(b)(1)’s increase cannot apply to him because

“[t]here is no evidence . . . that [he] was involved in any [gang-related] gun

activity” or “that [he] was aware of the use of firearms by the 110 Gang

members.”

As the district judge recognized, however, when a defendant traffics

narcotics as part of a larger “narcotics conspiracy” that employs dangerous

weapons “in furtherance of the conspiracy,” “the defendant need not have

had personal possession, or even actual knowledge of the weapon’s

presence” in order to compel the application of section 2D1.1(b)(1)’s

enhancement. United States v. Batista,

(2d Cir. 2012)

(quotation marks and alterations omitted). Rather, in such a case, “the

enhancement is required so long as the possession of the firearm was

reasonably foreseeable to the defendant.”

(quotation marks omitted); see

U.S.S.G. § 1B1.3(a)(1)(B).

9 While the district judge never explicitly found that other 110 Gang

members’ “possession of . . . firearm[s] was reasonably foreseeable to”

Wynn, Batista,

, the PSR so concluded, and the district judge

“adopt[ed] the [PSR] without change.” Wynn neither objected to the PSR’s

foreseeability conclusion before the district judge nor challenged it on

appeal. We thus have no occasion to disturb that conclusion.

II. The Mitigating Role Adjustment

Wynn next argues that the district judge erred by rejecting his request,

pursuant to Guidelines section 3B1.2, to reduce his offense level due to his

limited role in the 110 Gang’s criminal enterprise. “The defendant bears the

burden of establishing by a preponderance of the evidence that he is entitled

to a mitigating role adjustment under section 3B1.2.” United States v.

Carpenter,

(2d Cir. 2001).

A. The Governing Framework

Guidelines section 3B1.2 provides for “mitigating role” adjustments to

a defendant’s offense level “[b]ased on the defendant’s role in the offense.”

U.S.S.G. § 3B1.2. Eligibility for a such an adjustment depends on “the

10 defendant’s relative culpability [with] reference to his or her co-participants

in the case at hand.” United States v. Alston,

(2d Cir. 2018)

(quotation marks and emphasis omitted). The Guidelines specify five “non-

exhaustive . . . factors” a “court should consider” in determining a

defendant’s relative culpability:

(i) the degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision- making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; (v) the degree to which the defendant stood to benefit from the criminal activity.

U.S.S.G. § 3B1.2 application note 3(C). The Guidelines also provide that even

“a defendant [who] performs an essential or indispensable role in the

criminal activity . . . may receive a[] [mitigating role] adjustment.” Id.

When a defendant, like Wynn, is sentenced for a RICO conviction, his

“role adjustment is to be made on the basis of [his] role in the overall RICO

enterprise.” United States v. Ivezaj,

(2d Cir. 2009). Although

11 Ivezaj concerned the application of an aggravating role adjustment (provided

by Guidelines section 3B1.1) as opposed to the mitigating role adjustment

(provided by Guidelines section 3B1.2) at issue here, we explained that “the

language of the Guidelines [in section 2E1.1] is clear that the requirement to

look at each individual act in a RICO offense is only for the purpose of

establishing the base level offense, not for applying the Chapter Three

adjustments.”

Thus, Ivezaj requires that mitigating role determinations

for defendants adjudicated guilty of RICO violations “be made on the basis

of the defendant’s role in the overall RICO enterprise.” Id.; see also United

States v. Gershman,

, 104-06 (2d Cir. 2022) (reaffirming Ivezaj’s

approach for the application of Chapter Three adjustments in the RICO

context).

B. Application

The district judge properly focused on Wynn’s “relative culpability

[with] reference to his . . . co-participants,” Alston,

, in the 110

Gang’s “overall RICO enterprise.” Ivezaj,

. His analysis,

however, was unduly perfunctory. The only reasoning the district judge

12 provided for his dispositive inability to “find that [Wynn was] less culpable

than anybody else that was involved in [the 110 Gang’s] conspiracy” was

that the evidence established that Wynn was “a long-time member of the 110

gang.” App’x 125. The U.S. Attorney repeats this finding on appeal, adding

that Wynn “posted 110 Gang references to social media and appeared in a

rap video glorifying the gang where he flashed 110 Gang hand signs.” Yet

Wynn’s documented and sustained association with the 110 Gang is

probative of at most one of the Guidelines factors relevant to the mitigating

role determination—“the degree to which the defendant understood the

scope and structure of the criminal activity.” U.S.S.G. § 3B1.2 application

note 3(C). The district judge’s decision lacks any analysis of the other

relevant mitigating role factors that the Guidelines provide.

Because the record suggests that other, seemingly unconsidered,

mitigating role factors favor Wynn, we vacate Wynn’s sentence. “A district

court commits procedural error . . . if it fails adequately to explain its chosen

sentence.” United States v. Cavera,

(2d Cir. 2008). “Although

a judge need not utter robotic incantations repeating each factor that

13 motivates a sentence, the judge must explain enough about the sentence for

a reviewing court both to understand it and to assure itself that the judge

considered the principles enunciated in federal statutes and the Guidelines.”

United States v. Park,

(2d Cir. 2014) (alterations adopted and

internal quotation marks omitted). In this case, Wynn presented a strong

argument for a mitigating role adjustment such that the district judge’s

cursory denial does not sufficiently substantiate his decision.

As discussed, the district judge implicitly observed that the evidence

suggested that Wynn “understood the scope and structure of the criminal

activity” to a significant “degree.” U.S.S.G. § 3B1.2 application note 3(C). The

record, however, indicates that three of the remaining four mitigating role

factors in fact counsel in favor of granting Wynn a role adjustment. No record

evidence suggests that Wynn “participated in planning or organizing the

[110 Gang’s] criminal activity,” or “exercised decision-making authority or

influenced the exercise of decision-making authority” for the gang. Id.1 And

1The U.S. Attorney alleges that Wynn was “one of the most senior members” of the 110 Gang. That claim, which the U.S. Attorney apparently raises for the first time on appeal, does not appear to have any basis in the record.

14 most crucially, “the nature and extent of [Wynn’s] participation in the

commission of the [gang’s] criminal activity” appears to pale in comparison

to that of his fellow gang members. Id. Wynn engaged in five street-level

sales of a total of under $2500 worth of crack cocaine. On the other hand, the

PSR relates that numerous other gang members carried firearms, engaged in

repeated and serious violence, perpetrated financial crimes, and coordinated

a complex narcotics distribution business over a six-year period. Not only

does the record lack evidence of Wynn’s involvement in these activities,

Wynn was incarcerated for four of those years. 2

The U.S. Attorney attempts to supply additional support for the

district judge’s decision by arguing that Wynn was a “significant drug

distributor for the 110 Gang.” But the U.S. Attorney fails to identify any

evidence or even allegations of Wynn’s gang-related drug distribution aside

from the five incidents to which Wynn admitted and which formed the

factual basis for the offense to which he pleaded guilty. Indeed, the district

2The record seems silent as to the final factor, “the degree to which the defendant stood to benefit from the criminal activity.” Id.

15 judge did not find (either explicitly or via his adoption of the PSR) that

Wynn’s gang-related drug dealing involved anything more or that Wynn

was a “significant drug distributor for the 110 Gang.”

Nor is it significant, as the PSR stated in explaining its decision to not

recommend a role adjustment, that Wynn participated in one of the 110

Gang’s “primary purposes.” The mitigating role analysis in a RICO case is

focused on the “nature and extent” of the defendant’s “participa[tion],”

U.S.S.G. § 3B1.2 application note 3(C)(iv) (emphasis added), in the “overall

RICO enterprise,” Ivezaj,

, not the specific type of criminal

activity the defendant furthered and its centrality to the enterprise. And as

we observed earlier, the application notes provide that even “a defendant

[who] performs an essential or indispensable role in the criminal activity . . .

may receive a[] [mitigating role] adjustment.” U.S.S.G. § 3B1.2 application

note 3(C).

CONCLUSION

The district judge correctly applied Guidelines section 2D1.1(b)(1)’s

dangerous weapon enhancement. The district judge, however, erred in

16 denying Wynn a mitigating role adjustment without first addressing many

relevant factors that appear to support such an adjustment. In light of the

district judge’s failure to adequately explain that denial, we VACATE

Wynn’s sentence and REMAND this case for resentencing consistent with

this opinion.

17