22-415-cr (L) United States v. Fuller

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 7th day of February, two thousand twenty-four. 4 5 PRESENT: 6 JOHN M. WALKER, JR., 7 SUSAN L. CARNEY, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 22-415-cr (L), 17 22-1200-cr (Con) 18 Leonel Arellano, AKA Pudge, AKA Pudgie, Fabian Nash, 19 AKA Fabe, AKA Ramone Vaughn, Tyrone Garcia, AKA 20 Greedy, AKA Slim, AKA Ty, Ramone Vaughn, AKA 21 Ramone Williams, Edward Gotay, AKA Devane, AKA 22 Eddie, Damaris Tyesha Garcia, Hysain Kasaj, AKA Hus, 23 24 Defendants, 25 26 Morris Fuller, AKA PJ, AKA Power Just, Enver 27 Mehmeti, AKA En, 28 29 Defendants-Appellants. 30 _____________________________________ 1 2 FOR APPELLEE: Samantha Alessi, David C. James & Anna L. 3 Karamigios, Assistant United States 4 Attorneys, for Breon Peace, United States 5 Attorney, Eastern District of New York, 6 Brooklyn, NY. 7 8 FOR DEFENDANTS-APPELLANTS: César de Castro, The Law Firm of César De 9 Castro, P.C., New York, NY for Morris 10 Fuller. 11 12 James M. Schmitz, Law Office of James M. 13 Schmitz, New York, NY for Enver Mehmeti. 14 15 Appeal from orders of the United States District Court for the Eastern District of New York

16 (Glasser, J.).

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

18 DECREED that the order of the district court as to Fuller is AFFIRMED and the order of the

19 district court as to Mehmeti is VACATED AND REMANDED.

20 Defendants-Appellants Morris Fuller and Enver Mehmeti were members of a gang dealing

21 cocaine and crack cocaine in Staten Island before their 2010 and 2009 indictments and subsequent

22 convictions. Each received a lengthy sentence: 240 months for Fuller and 324 for Mehmeti. After

23 the passage of the First Step Act,

Stat. 5194, Fuller and Mehmeti each

24 moved for a sentence reduction. The district court denied Fuller’s motion, see United States v.

25 Fuller, No. 09-CR-0165 (ILG),

(E.D.N.Y. Feb. 28, 2022), and reduced

26 Mehmeti’s sentence by seven months, see United States v. Mehmeti,

(E.D.N.Y.

27 2022). Fuller challenges the denial of his motion. Mehmeti argues that his sentence should have

28 been reduced further. We assume the parties’ familiarity with the underlying facts, the procedural

29 history of the case, and the issues on appeal.

2 1 We review a district court’s decision on a motion for a reduced sentence for abuse of

2 discretion. See United States v. Holloway,

(2d Cir. 2020).

3 I. Fuller

4 Fuller argues that the district court did not adequately explain its decision to deny his

5 motion. We disagree. The district court noted that Fuller’s 240-month sentence was “only slightly

6 higher than the maximum recommended range” of 188 to 235 months. Fuller,

,

7 at *2. It explained that “[i]n light of the circumstances of the crime and Fuller’s own history,” a

8 reduction was not warranted: Fuller “was the admitted supplier of a significant quantity of cocaine

9 and crack cocaine to several street-level dealers, as well as to gang members” and he had been

10 selling drugs for over a decade.

Additionally, Fuller’s behavior in prison, which included

11 fighting, threatening, possessing drugs, violence against staff, possession of weapons, and a serious

12 assault, was “not the sort that makes the Court inclined to exercise its discretion and reduce the

13 sentence it previously imposed.”

.

14 This is sufficient because it is “enough explanation of how [the district court] exercised its

15 sentencing discretion to permit meaningful appellate review.” United States v. Torres, No. 21-

16 2511-cr,

, at *3 (2d Cir. Nov. 21, 2022) (quoting United States v. Christie, 736

(2d Cir. 2013)). We thus affirm the district court’s order denying Fuller’s motion.

18 II. Mehmeti

19 Mehmeti and the government agree that remand is necessary as to Mehmeti because the

20 district court failed to apportion his sentence among his crimes of conviction as required by section

21 5G1.2(e) of the Sentencing Guidelines and because of changes in law subsequent to the district

22 court’s decision. We thus vacate and remand as to Mehmeti. Intervening case law has cast doubt

23 on three of the district court’s legal conclusions. First, “a district court adjudicating a motion under

3 1 the First Step Act may consider other intervening changes of law (such as changes to the

2 Sentencing Guidelines) or changes of fact (such as behavior in prison).” Concepcion v. United

3 States,

(2022). But a district court may not “recalculate a movant’s benchmark

4 Guidelines range in any way other than to reflect the retroactive application of the Fair Sentencing

5 Act. Rather, the First Step Act directs district courts to calculate the Guidelines range as if the

6 Fair Sentencing Act’s amendments had been in place at the time of the offense.”

at 498 n.6.

7 Second, as we have recently stated, section 220.39(1) of the New York Penal Law is categorically

8 broader than its federal counterpart because it covers more than optical and geometric isomers of

9 cocaine. See United States v. Minter,

(2d Cir. 2023); United States v.

10 Chaires,

(2d Cir. 2023).

11 Third, in adjudicating Mehmeti’s First Step Act motion, the district court stated that it

12 would “not consider any of the additional policy arguments that Mehmeti advances in support of

13 a further reduction in his sentence,” explaining that “consideration of such arguments is not

14 appropriate on a motion for relief under the First Step Act.” Mehmeti, 604 F. Supp. 3d at 75-76.

15 The Supreme Court has made clear, however, that “district courts are always obligated to consider

16 nonfrivolous arguments presented by the parties” in the First Step Act context—including, for

17 example, “evidence of postsentencing rehabilitation.” Concepcion,

. On

18 remand, then, the district court should consider Mehmeti’s nonfrivolous arguments. Of course,

19 the district court is not required to exercise its discretion to reduce Mehmeti’s sentence based on

20 those arguments. See

. We vacate the district court’s order and remand so that the district

21 court can apportion the sentence and evaluate the impact of this intervening case law.

22 ***

4 1 We have considered the remainder of Fuller’s and Mehmeti’s arguments and find them to

2 be without merit. For the foregoing reasons, we AFFIRM the order of the district court as to

3 Fuller and VACATE AND REMAND the order of the district court as to Mehmeti.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court

5