22-2875-cr (con) United States v. Kinsey

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 18th day of March, two thousand twenty-four. Present: JOHN M. WALKER, JR., WILLIAM J. NARDINI, STEVEN J. MENASHI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 22-2721-cr (L); 22-2875-cr (con) RASHAWN WYNN, FKA Sealed Defendant #9, AKA Wormy, KEMNORRIS KINSEY, FKA Sealed Defendant #13, AKA Pep, Defendants-Appellants. ∗ † _____________________________________

For Appellee: Nicolas Commandeur, Rajit S. Dosanjh, Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY

∗ The Clerk of Court is respectfully directed to amend the official caption as set forth above. † This order resolves only Defendant-Appellant Kemnorris Kinsey’s appeal, No. 22-2875 (con); Defendant- Appellant Rashawn Wynn’s appeal, No. 22-2721 (L), will be resolved separately.

1 For Defendant-Appellant Kinsey: Michelle A. Barth, Burlington, VT

Appeal from a judgment of the United States District Court for the Northern District of

New York (Frederick J. Scullin, Jr., District Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Kemnorris Kinsey appeals from a judgment of the United States

District Court of the Northern District of New York (Frederick J. Scullin, Jr., District Judge),

entered on October 21, 2022, convicting him of one count of racketeering conspiracy, in violation

of

(d) and 1963(a), following a guilty plea entered pursuant to a plea agreement.

Kinsey was initially sentenced to 150 months of imprisonment, to be followed by three years of

supervised release. On appeal, this Court vacated Kinsey’s sentence and remanded for

resentencing because the district court committed plain error in determining Kinsey’s offense level

under United States Sentencing Guidelines § 2E1.1. On remand, the district court imposed a

sentence of 136 months of imprisonment, to be followed by three years of supervised release.

Kinsey now appeals his new sentence, arguing that the district court committed procedural error

by miscalculating his criminal history category. We assume the parties’ familiarity with the case.

We review a criminal sentence for procedural reasonableness “under a deferential abuse-

of-discretion standard.” United States v. Hunt,

(2d Cir. 2023). 1 “This standard

incorporates de novo review of questions of law, including our interpretation of the Guidelines,

and clear error review of questions of fact.” United States v. Vinales,

(2d Cir.

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

2 2023). “A sentence is procedurally unreasonable if the district court improperly calculates the

Sentencing Guidelines range or selects a sentence based on clearly erroneous facts, or fails

adequately to explain the chosen sentence.” Hunt,

.

Kinsey argues that the district court erred by considering his 2015 New York conviction

for seventh-degree possession of crack cocaine (“2015 Conviction”)—which occurred during the

time frame of the charged racketeering conspiracy—when calculating his criminal history

category, resulting in an increase from V to VI. This was error, Kinsey contends, because the 2015

Conviction should have been treated as relevant conduct of the charged racketeering conspiracy,

not as part of his criminal history. We disagree.

Under U.S.S.G. § 4A1.1, a defendant’s “prior sentence[s]” are used to determine his

criminal history category. A “prior sentence” is “any sentence previously imposed upon

adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part

of the instant offense.” U.S.S.G. § 4A1.2(a)(1). The commentary to this Guidelines provision

further explains that “[a] sentence imposed after the defendant’s commencement of the instant

offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other

than conduct that was part of the instant offense.” U.S.S.G. § 4A1.2, comment. (n.1). Once the

government establishes that the defendant has a sentence that was imposed before sentencing for

the present offense, the burden shifts to the defendant to show that the conduct underlying that

sentence was relevant to the present offense and thus cannot be considered in the criminal history

calculation. See United States v. Brothers,

(2d Cir. 2003) (holding that the

defendant bears the burden of proving that his crimes were part of a common plan or scheme in

the context of the career offender Guidelines enhancement); United States v. Butler,

(2d Cir. 1992) (“[T]hough the government generally has the burden of proving facts

3 upon which the requested penalties are predicated, we disagree that it has the burden of proving

that the acts underlying a defendant’s prior unconsolidated convictions were not committed as part

of a single common scheme or plan.”).

At resentencing, defense counsel renewed the argument that he had made at Kinsey’s first

sentencing that including the 2015 Conviction in the criminal history calculation was error because

the conduct underlying that conviction was part of the racketeering conspiracy to which Kinsey

pled guilty in the present case. The district court rejected this argument for two independent

reasons: (1) reconsidering the criminal history category was outside the mandate of our remand

for resentencing, and (2) the argument failed on the merits because the drugs underlying the 2015

Conviction were not referenced in the indictment or the plea agreement; the stipulated drug weight

in the plea agreement was independently supported by other evidence in the record; and the 2015

Conviction was for the lowest degree of misdemeanor drug possession under New York law based

on possession of a personal use quantity, whereas the racketeering conspiracy involved possession

of large quantities with intent to distribute.

We agree with the district court that our mandate did not authorize it to revisit Kinsey’s

criminal history calculation. We remanded based on a single error—the inclusion of aggravated

assault as “underlying RICO activity” in calculating Kinsey’s offense level, United States v.

Hopper, No. 19-3087-CR,

, at *2 (2d Cir. May 17, 2022). Specifically, we

stated that “we vacate Kinsey’s sentence and remand for the purpose of recalculating his offense

level and resentencing accordingly.”

These narrow instructions stand in stark contrast with

our much broader ruling on one of Kinsey’s co-defendant’s appeals, for which we directed a

“remand for purposes of plenary resentencing.”

. Accordingly, our decision made clear

that Kinsey’s remand was for limited purposes; the district court was called upon to correct only

4 the error identified in his offense level and to impose a new sentence based on the rest of the

Guidelines calculations previously made. See United States v. Aquart,

(2d Cir.

2024) (citing United States v. Quintieri,

(2d Cir. 2002)).

Even if our mandate had been broader, 2 Kinsey’s argument fails on the merits for the same

reasons that it failed in his prior appeal. There, we held (albeit under plain error review) that the

district court’s decision to count the 2015 Conviction as a prior sentence “was not, as a factual

matter, plainly erroneous.” Hopper,

, at *2. We reasoned that seventh-degree

misdemeanor possession of cocaine is not a racketeering predicate, see

(1), and

that “[i]t was Kinsey’s admitted involvement in drug trafficking, and not personal use or ownership

of drugs, that was the focus of the conspiracy.” Hopper,

, at *2. The question

whether Kinsey possessed the drugs involved in the 2015 Conviction for personal use is a factual

one, and we will overturn a district court’s factual findings only for clear error—that is, where “the

reviewing court on the entire evidence is left with the definite and firm conviction that a mistake

has been committed.” Fisher v. Aetna Life Ins. Co.,

, 136 (2d Cir. 2022). No such

mistake occurred here.

We were, and remain, unpersuaded by Kinsey’s arguments that the district court clearly

erred in concluding that the 2015 Conviction did not involve possession of drugs with intent to

distribute, which the charged racketeering conspiracy encompasses. Kinsey first points out that,

during his presentence investigation interview, he denied personally using crack cocaine. As to

2 In a footnote at the end of our previous decision in this case, we stated: “Upon remand, the District Court will be free to conduct any other such proceeding with regards to Kinsey . . . as may be required in the interest of justice.” Hopper,

, at *6 n.6. We do not regard this catch-all language as undermining the limited nature of our remand, much less as authorizing a de novo resentencing. Instead, we simply confirmed the district court’s authority to conduct any proceeding necessary to effectuate our remand. For the avoidance of all doubt, however, we explain above why Kinsey’s arguments regarding his 2015 Conviction fail on the merits.

5 this contention, as this Court noted in the previous appeal, Kinsey’s statement in his presentence

interview

simply relates what Kinsey chose to self-report to the probation office and is no guarantee of the statement’s accuracy. And on that point, given the countervailing evidence in this case (namely, the PSR’s findings as to the circumstances and nature of the 2015 Conviction), it would not have been plain error for the District Court to have declined to credit Kinsey’s self-descriptions about his personal drug use in favor of the official police and court records to which it had access.

Hopper,

, at *2 n.3. Defense counsel furnished his contemporaneous notes

taken during this interview indicating that Kinsey attested to not having used crack cocaine, but

this merely confirms that Kinsey made that statement; it does not corroborate the accuracy of that

statement. Moreover, the facts surrounding the 2015 Conviction, further support the district

court’s finding that Kinsey possessed the drugs for personal use rather than for sale and

distribution: the 2015 Conviction involved only a small quantity of drugs, and the drugs were

discovered on the driver’s seat and center console of his car and on his person. Kinsey also argues

that in his plea agreement, he admitted that he possessed crack cocaine as part of the charged

racketeering conspiracy. But as to this point, “Kinsey is missing any link between the 2015

Conviction and either the overt acts to which he pleaded guilty or the quantity of cocaine to which

he stipulated.”

at *2 n.4. Absent some evidence to the contrary, it does not follow that the

personal use quantity underlying his 2015 Conviction was necessarily obtained pursuant to his

participation in the racketeering conspiracy.

Accordingly, the district court again did not err in concluding that the conduct underlying

Kinsey’s 2015 Conviction was not part of the racketeering conspiracy 3 of which he was convicted

3 Because we conclude that the 2015 Conviction was not relevant conduct, we do not reach Kinsey’s arguments regarding Application Note 4 to U.S.S.G. § 2E1.1.

6 and consequently in considering that conviction when calculating his criminal history category.

* * *

For the reasons stated above, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

7