24-2219 United States v. Copeland

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.

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 19th day of December, two thousand and twenty-five.

PRESENT: ROBERT D. SACK, BETH ROBINSON, MYRNA PÉREZ, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 24-2219

VERNON E. COPELAND III,

Defendant-Appellant. _________________________________________ FOR APPELLEE: Timothy Ly, Michael D. Maimin, Assistant United States Attorneys for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.

FOR APPELLANT: Nicholas J. Pinto, Esq., New York, NY.

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

District of New York (Kenneth M. Karas, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on August 20, 2024, is

AFFIRMED.

Vernon Copeland was convicted of three charges arising out of his repeated

sexual assaults of his minor daughter. On appeal, Copeland challenges the

admission of evidence regarding prior sexual assaults, the sufficiency of the

evidence, and his sentence. We assume the parties’ familiarity with the underlying

facts, procedural history, and arguments on appeal, to which we refer only as

necessary to explain our decision to affirm.

I. Evidence of Past Sexual Assaults

Pursuant to Federal Rule of Evidence 413, the district court allowed the

government to present testimonial and forensic evidence that in the past,

2 Copeland sexually assaulted three other minors. In particular, the respective

victims testified that Copeland raped two of them on Thanksgiving Day in 2004,

and that he raped the third, the younger sister of a woman he was dating, in 2010.

The government presented forensic evidence that Copeland’s DNA was found in

semen collected from each of the three victims’ clothes.

Copeland contends that the probative value of this evidence is substantially

outweighed by the danger of unfair prejudice such that the evidence should have

been excluded under Federal Rule of Evidence 403. We review Copeland’s Rule

403 challenge to the district court’s ruling for abuse of discretion. See United States

v. Morgan,

(2d Cir. 2015).

“In enacting Rule [of Evidence] 413, Congress intended to create a

presumption that evidence of prior sexual assaults . . . is relevant and probative in

prosecutions for sexual assault.” 1 United States v. Schaffer,

(2d

Cir. 2017). Such evidence may nevertheless be excluded if “its probative value is

substantially outweighed” by a danger of unfair prejudice.

at 181–82 (quoting

Fed. R. Evid. 403).

1In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

3 The passage of time between the 2004 assaults and the charged crimes alone

does not compel their exclusion. See United States v. Larson,

(2d

Cir. 1997). And though those assaults did not arise from the same relationship of

trust as Copeland’s relationship with his daughter in the charged crimes and his

sibling-like relationship with the victim in the 2010 assault, the district court did

not exceed its discretion in concluding that all the assaults “suggest a longer

standing pattern of forced sexual contact . . . with minor female victims.” App’x

36. Finally, as noted by the district court, this evidence of past assaults is “no more

inflammatory” than the charged conduct, undercutting any claim of unfair

prejudice. App’x 38 (quoting Schaffer,

).

II. Constructive Amendment or Variance from Indictment

We also reject Copeland’s contention that the volume of evidence regarding

his past sexual assaults and the court’s related instructions to the jury amounted

to a constructive amendment to or variance from the crimes for which he was

charged. Because he did not raise this argument before the district court, we

review only for plain error. United States v. Bastian,

(2d Cir. 2014).

The only charges presented to the jury for decision were the three charges

in the indictment relating to Copeland’s abuse of his daughter. And the court

4 properly instructed that, though the jury could consider evidence of prior sexual

assaults, it “may not consider this evidence of similar acts as a substitute for proof

that [Copeland] committed the crimes charged.” App’x 785; see Schaffer, 851 F.3d

at 183–84. Moreover, the evidence presented about his past assaults did not “far

outweigh[] the amount of evidence presented in the case in chief.” Copeland Brief

24.

Copeland has not shown constructive amendment because the

government’s proof neither added “an additional element, sufficient for

conviction,” nor altered “an element essential to the crime charged.” United States

v. Khalupsky,

, 293 (2d Cir. 2021). Nor has he shown a variance, because

the evidence against him did not “materially differ[] from what was alleged” in

the indictment.

. We see no plain error here.

III. Sufficiency of the Evidence

We review challenges to the sufficiency of evidence without deference and

will “uphold the conviction[s] if any rational trier of fact could have found the

essential elements of the crime[s] beyond a reasonable doubt.” United States v.

Bramer,

(2d Cir. 2020). In assessing the sufficiency of the evidence,

we “view the evidence in the light most favorable to the government, crediting

5 every inference that could have been reasonably drawn in the government’s favor,

and deferring to the jury’s assessment of witness credibility and its assessment of

the weight of the evidence.” United States v. Laurent,

(2d Cir. 2022).

Copeland’s sufficiency challenge fails. His arguments amount to

exhortations that we should not credit the testimony of his daughter and should

instead credit his witnesses’ version of events. Our standard of review requires

the opposite.

And the evidence in this case suffices to sustain Copeland’s

convictions. His daughter testified that he repeatedly raped her between the ages

of nine and thirteen, that he moved her across state lines to do so, and that he used

the internet to communicate his sexual intent toward her when she was at her

mother’s house and not with him. There is ample evidence from which a jury

could find that Copeland committed each of the three crimes for which he was

convicted.

IV. The Sentence

We review Copeland’s procedural and substantive challenges to his within-

Guidelines life sentence under a “particularly deferential form of abuse-of-

discretion review.” United States v. Davis,

, 195–96 (2d Cir. 2023).

6 As to his procedural challenge, we need not decide whether the district

court’s imposition of a four-level enhancement pursuant to Sentencing Guideline

§ 2A3.1(b)(1) or of a two-level enhancement pursuant to § 3C1.1 is erroneous,

because any error in the enhancement was harmless.

Even without the inclusion of the two challenged enhancements,

Copeland’s offense level was calculated to be 47. The Guidelines provide that an

“offense level of more than 43 is to be treated as an offense level of 43,” as the

Guidelines do not list offense levels above 43. U.S.S.G. Ch. 5, Pt. A, Note 2.

Because any error here could “have had no impact” on Copeland’s Guidelines

sentencing range, we need not address his argument. United States v. Gates,

, 503–04 (2d Cir. 2023); United States v. Brown,

(2d Cir. 2016).

As to his substantive reasonableness challenge, we will “set aside a district

court’s substantive [sentencing] determination only in exceptional cases where the

trial court’s decision cannot be located within the range of permissible decisions.”

United States v. Cavera,

(2d Cir. 2008) (en banc) (emphasis in

original). “We do not review a sentence’s substantive reasonableness to substitute

our own judgment for the district court’s.” Davis,

.

7 Copeland’s argument that the court did not properly consider the need to

avoid unwarranted sentencing disparities is unpersuasive. Though he points to

national data reflecting a median sentence of 360 months for the seventeen

offenders with Guidelines calculations like his, the data don’t account for

individualized factors considered by the district court such as the nature of

Copeland’s parental relationship to his victim or the duration of the abuse. See

United States v. Irving,

(2d Cir. 2009) (“Averages of sentences that

provide no details underlying the sentences are unreliable to determine

unwarranted disparity because they do not reflect the enhancements or

adjustments for the aggravating or mitigating factors that distinguish individual

cases.”).

Although Copeland suggests that the district court did not sufficiently

consider his mental health issues or the treatment he has experienced at the

Metropolitan Detention Center, that argument boils down to a disagreement with

the district court’s decision to afford more weight to other

(a)

factors, such as the nature of the offense. Such disagreement does not demonstrate

an abuse of discretion where, as here, the within-Guidelines sentence was

reasonable in light of all the sentencing factors considered by the district court. See

8 United States v. Bleau,

(2d Cir. 2019) (“The weight to be afforded any

sentencing factor is a matter firmly committed to the discretion of the sentencing

judge and is beyond our review, as long as the sentence ultimately imposed is

reasonable.”).

* * *

For these reasons, the district court’s judgment is AFFIRMED.

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

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