22-2378-cr United States v. Richards

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 COURT’S 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 “SUMMARY ORDER”). 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 13th day of December, two thousand twenty-three. Present: DENNIS JACOBS, ROBERT D. SACK, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 22-2378-cr JEFFREY RICHARDS, Defendant-Appellant. _____________________________________

For Appellee: Katherine A. Gregory, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY

For Defendant-Appellant: Michael J. Stachowski, Buffalo, NY

Appeal from a judgment of the United States District Court for the Western District of New

York (John L. Sinatra, Jr., District Judge).

1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Jeffrey Richards appeals from a judgment of the United States

District Court for the Western District of New York (John L. Sinatra, Jr., District Judge), entered

on September 23, 2022, sentencing Richards principally to 204 months of imprisonment, to be

followed by five years of supervised release. Richards pled guilty to one count of possession with

intent to distribute acetyl fentanyl, in violation of

(a)(1), (b)(1)(A), and one count

of possession of a firearm in furtherance of a drug trafficking crime, in violation of

(c)(1)(A)(i). As permitted by the terms of his plea agreement, Richards now appeals the

denial of his motion to suppress the firearm that formed the basis for the § 924(c) charge as well

as his above-Guidelines sentence. We assume the parties’ familiarity with the case.

I. Motion to Suppress

“On appeal from a district court’s ruling on a suppression motion, we review a district

court’s findings of fact for clear error, and its resolution of questions of law and mixed questions

of law and fact de novo.” United States v. Jones,

(2d Cir. 2022). 1 The district

court held that the officers who arrested Richards on December 14, 2018, and found a firearm

under the front seat of the vehicle he had been driving did not violate Richards’s Fourth

Amendment rights on two alternative grounds. First, the district court held that the officers had

probable cause to arrest Richards when they first encountered him. Alternatively, the district court

held that the “officers had reasonable suspicion to conduct an investigatory stop of Richards when

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations.

2 they first encountered him, and probable cause to arrest him arose when officers discovered the

firearm, in plain view, during the course of the lawful investigatory stop.” J.A. at 268.

On appeal, Richards argues that the officers did not have probable cause to arrest him when

they first encountered him, and therefore that the gun recovered during the search incident to his

arrest should have been suppressed; he does not contest the district court’s alternative holding that

even if the officers did not have probable cause to arrest him initially, they at least had reasonable

suspicion to conduct an investigatory stop. We therefore consider any challenge to the district

court’s ruling regarding the investigatory stop to be forfeited. See Jusino v. Fed’n of Cath. Tchrs.,

Inc.,

(2d Cir. 2022). Even so, considering the merits of the district court’s

decision, we agree with the district court that the officers had reasonable suspicion to conduct an

investigatory stop of Richards, and in the course of the investigatory stop, observed the firearm in

plain view.

“[A] brief investigatory stop may sometimes reasonably be conducted in the absence of a

warrant and even of the probable cause required for a lawful arrest.” United States v. Patterson,

(2d Cir. 2022).

For circumstances to warrant an investigatory stop, law enforcement officials must have a reasonable basis to think that the person to be detained is committing or has committed a criminal offense. . . . [W]hile reasonable suspicion requires more than a hunch, it is satisfied as long as authorities can point to specific and articulable facts which, taken together with rational inferences from those facts, provide a particularized and objective basis for suspecting legal wrongdoing.

at 135–36. Here, the officers had reasonable suspicion to suspect that Richards was engaged

in ongoing criminal activity. The officers had recently conducted a controlled purchase of

narcotics during which they observed a drug dealer obtain narcotics from Richards’s home.

Furthermore, one of the officers testified that he had “fresh” information that Richards always

3 carried a firearm when he left his home, J.A. at 131, testimony that the district court found to be

“wholly credible,”

. Based on these specific and articulable facts, the officers had

reasonable suspicion that, when Richards left his home on the evening of December 14, he was

engaged in criminal activity by possessing a firearm in furtherance of drug trafficking. See, e.g.,

United States v. Bailey,

(2d Cir. 2014). 2

Once the officers were conducting the investigatory stop, they observed the firearm in plain

view. Under the plain view doctrine, “if police are lawfully in a position from which they view an

object, if its incriminating character is immediately apparent, and if the officers have a lawful right

of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson,

, 374–75 (1993). As discussed above, the investigatory stop here was lawful, so the officers

were permitted to order Richards to get out of the car. See United States v. Weaver,

(2d Cir. 2021) (en banc). An officer “credibly testified” that once Richards got out, while the

car door was still open, he “observed part of a firearm in plain view on the floor of the driver’s

seat” “while looking into the front seat of the vehicle from the parking lot,” which is confirmed by

video footage. J.A. at 276. Based on the district court’s sound factual findings, the officers

discovered the firearm in plain view and therefore could seize it without a warrant. Because the

officers did not violate Richards’s Fourth Amendment rights in either how they stopped him or

2 As Richards has not challenged the legality of the investigatory stop, we need not address whether the manner in which the officers conducted the investigatory stop turned it into a de facto arrest. See Patterson,

. We note, however, that this Court has repeatedly held that the use of force in the course of an investigatory stop when it is reasonable for the officers to believe that the suspect poses a present physical threat does not transform the investigatory stop into a de facto arrest. This includes pointing a firearm at the stopped vehicle, see, e.g.,

at 144–45, handcuffing the suspect, see, e.g., United States v. Fiseku,

, 74–75 (2d Cir. 2018); Grice v. McVeigh,

, 167–68 (2d Cir. 2017); United States v. Vargas,

(2d Cir. 2004), carrying out the stop with a number of officers greater than the number of suspects, see, e.g., Patterson,

(four officers versus two suspects); United States v. Newton,

(2d Cir. 2004) (six officers versus one suspect), and detaining the suspect for a relatively long period of time, see, e.g., Grice,

(thirty-three minutes); Bailey, 743 F.3d at 338–39 (ten minutes); United States v. Tehrani,

(2d Cir. 1995) (thirty minutes).

4 how they found the firearm, the district court correctly concluded that the firearm did not need to

be suppressed.

II. Sentence

Richards also argues on appeal that his sentence was procedurally and substantively

unreasonable. In reviewing a sentence for reasonableness, “[t]he procedural inquiry focuses

primarily on the sentencing court’s compliance with its statutory obligation to consider the factors

detailed in

(a), while the substantive inquiry assesses the length of the sentence

imposed in light of the § 3553(a) factors.” United States v. Richardson,

(2d

Cir. 2020).

Beginning with procedural reasonableness, Richards argues that the district court

committed several procedural errors at sentencing, including imposing a sentence above the

Sentencing Guidelines’ advisory sentence of 180 months of imprisonment, not considering the

§ 3553(a) factors, and not explaining the reasons for its sentence. We disagree. First, the

Sentencing Guidelines are not mandatory, see United States v. Booker,

(2005);

United States v. Cavera,

(2d Cir. 2008) (en banc), and therefore, Richards’s

argument that the district court committed procedural error simply by imposing an upward

variance is meritless.

Second, the district court considered the § 3553(a) factors and explained its reasons for the

sentence it imposed, including the upward variance. The district court said that it had “considered

the factors set forth in the sentencing statute” and imposed the sentence because (1) “law

enforcement found significant quantities of drugs” and “drug packaging and processing materials”

in Richards’s home; (2) “[l]aw enforcement also recovered numerous firearms and ammunition at

the residence, along with a stolen firearm located in the vehicle at the time of [Richards’s] arrest,”

5 which “pose[d] a grave danger to the community”; (3) “officers became ill at [Richards’s]

residence” from the presence of fentanyl there when they executed the search warrant; and (4)

Richards created a destructive device meant to explode “with some malicious intent to have it hurt

people.” J.A. at 485–86. In determining the effect of any mitigating factors, the district court

considered Richards’s “personal history and characteristics,” including his “struggles

with [his] mental health from a young age,” “history of substance abuse,” absence of prior criminal

history, and acceptance of responsibility. Id. at 486–87. The district court therefore followed the

proper procedures in imposing the sentence.

Turning to substantive reasonableness, the 204-month sentence was not “manifestly

unjust.” Richardson, 958 F.3d at 153–54. “The particular weight to be afforded aggravating and

mitigating factors is a matter firmly committed to the discretion of the sentencing judge, with

appellate courts seeking to ensure only that a factor can bear the weight assigned it under the

totality of circumstances in the case.” United States v. Broxmeyer,

(2d Cir.

2012). Here, the various factors the district court considered—including the fact that Richards

attempted to build a bomb in an apartment building—can bear the weight assigned to them under

the totality of circumstances. A 204-month sentence was within the range of permissible decisions

and supportable as a matter of law. See United States v. Rigas,

(2d Cir. 2009).

* * *

For the reasons stated above, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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