United States v. Torrance McCown

09-3812-cr United States v. Torrance McCown

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to summary orders filed after January 1, 2007, is permitted and is governed by this Court’s Local Rule 32.1 and Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a summary order, in each paragraph in which a citation appears, at least one citation must either be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party citing a summary order must serve a copy of that summary order together with the paper in which the summary order is cited on any party not represented by counsel unless the summary order is available in an electronic database which is publicly accessible without payment of fee (such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by reason of the availability of the order on such a database, the citation must include reference to that database and the docket number of the case in which the order was entered.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 13th day of September, two thousand ten. 4 5 PRESENT: 6 7 HON. DEBRA ANN LIVINGSTON, 8 HON. GERARD E. LYNCH, 9 Circuit Judges, 10 HON. WILLIAM K. SESSIONS III 11 District Judge.* 12 13 14 15 UNITED STATES OF AMERICA 16 Appellee, 17 18 -v.- No. 09-3812-cr 19 20 TORRANCE McCOWN, 21 Defendant-Appellant. 22 23 24 RICHARD S. CRAMER, Hartford, Connecticut, for Defendant- 25 Appellant.

* The Honorable William K. Sessions III, Chief Judge of the United States District Court for the District of Vermont, sitting by designation.

1 2 3 H.GORDON HALL, Assistant United States Attorney (Raymond F. 4 Miller, Assistant United States Attorney, on the brief) for David B. 5 Fein, United States Attorney for the District of Connecticut, New 6 Haven, Connecticut, for Appellees. 7 8 Appeal from the United States District Court for the District of Connecticut (Janet C.

9 Hall, Judge.) 10 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED 11 that the judgment of conviction and sentence imposed on September 2, 2009 is AFFIRMED. 12 Defendant Torrance McCown appeals from a judgment of conviction entered on September 13 2, 2009 following a jury trial in the District of Connecticut convicting him of one count of 14 conspiracy to distribute 50 grams or more of cocaine base, see 21 U.S.C. §§ 846, 841(a)(1), and 15 846(b)(1)(A)(iii). The district court imposed the statutory mandatory minimum and sentenced 16 McCown to 120 months. See 21 U.S.C § 841(b). On appeal, McCown challenges the sufficiency 17 of the evidence to support his conviction. Alternatively, he contends that even if the conviction 18 stands, the sentence imposed was “substantively unreasonable” because the district court erroneously 19 believed that it was bound by the statutory mandatory minimum. We presume the parties’ familiarity 20 with the underlying facts, the procedural history, and the issues on appeal. 21 I. Sufficiency of the Evidence 22 McCown argues that there was insufficient evidence to convict him of conspiring to 23 distribute in excess of 50 grams of cocaine base. The claim was properly preserved below, and, 24 accordingly, we review it de novo. United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997). 25 A defendant challenging the sufficiency of the evidence to support his conviction “bears a heavy 26 burden,” United States v. Mercado, 573 F.3d 138, 140 (2d Cir. 2008) (internal quotations omitted),

1 because we affirm where viewed “in the light most favorable to the prosecution, any rational trier 2 of fact could have found the essential elements.” United States v. Ionia Mgmt. S.A., 555 F.3d 303, 3 309 (2d Cir. 2009) (per curiam) (internal quotations omitted); see generally Jackson v. Virginia, 443 4 U.S. 307 (1979). In reviewing such a challenge, “we must credit every inference that could have 5 been drawn in the government’s favor” and “defer to the jury’s determination of the weight of the 6 evidence and the credibility of witnesses, and to the jury’s choice of the competing inferences that 7 can be drawn from the evidence.” United States v. Reifler, 446 F.3d 65, 94 (2d Cir. 2006) (internal 8 citation omitted) (internal citation and quotations omitted). “In cases of conspiracy, deference to the 9 jury’s findings is especially important because a conspiracy by its very nature is a secretive 10 operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the 11 precision of a surgeon’s scalpel.” United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006) (internal 12 quotations and citations omitted). 13 To establish the crime of conspiracy, the government needed to prove two elements at trial: 14 (1) that the conspiracy alleged in the indictment existed, and (2) that the defendant knowingly joined 15 or participated in it. Snow, 462 F.3d at 68. In this case, the government also needed to establish that 16 it was reasonably foreseeable to the defendant that the conspiracy involved 50 grams or more of 17 cocaine base, or crack cocaine. 18 The government’s evidence with respect to each element was overwhelming. At trial, the 19 government introduced McCown’s post-arrest statement in which he confessed to obtaining 20 significant quantities of cocaine base from a co-conspirator, Roshaun Hoggard, repackaging the 21 cocaine into “dime bags” for resale, and returning a portion of the proceeds to Hoggard. The 22 government also introduced intercepted cell phone conversations between McCown and Hoggard

1 in which the two discussed, among other things, McCown’s purchase of drugs from Hoggard and 2 McCown’s delivery of drugs, at Hoggard’s behest, to other co-conspirators. Finally, the government 3 offered the testimony of several government agents who testified to their surveillance of a man 4 identified through wiretap evidence as McCown delivering drugs and otherwise participating in the 5 conspiracy. 6 McCown contends that his confession was “uncorroborated” by the other evidence at trial 7 and, as such, was insufficient to support his conviction. Cf. United States v. Bryce, 208 F.3d 346, 8 354 (2d Cir. 2000) (“It is a long-settled principle that an accused may not be convicted on his own 9 uncorroborated confession.” (internal quotations omitted)). The argument is without merit. As 10 detailed above, the government’s evidence of McCown’s knowing involvement in the conspiracy 11 was overwhelming, and McCown’s confession was directly supported by both intercepted phone 12 conversations and the testimony of government agents. Indeed even if the confession was entirely 13 disregarded, the government’s other evidence was more than sufficient to permit a reasonable trier 14 of fact to conclude that McCown knowingly joined the conspiracy. To the extent McCown raises 15 other arguments with respect to the sufficiency of the evidence, we have considered them and reject 16 them as meritless. 17 II. Sentencing 18 Alternatively, McCown argues the district court erred in imposing the 120-month statutory 19 mandatory minimum. See 21 U.S.C. § 841(b). Specifically, McCown argues, for the first time on 20 appeal,1 that as a result of United States v. Booker, 543 U.S. 220 (2005), and its elimination of the

1 The government contends that the law of this Circuit does not squarely address the standard of review to be applied where a challenge to the substantive reasonableness of a sentence is not preserved below. It urges this Court to adopt the same “plain error” standard

1 mandatory guidelines, the mandatory minimum in section 841(b) must give way to the “parsimony 2 clause” in 18 U.S.C. § 3553(a) which directs district courts to “impose a sentence sufficient, but not 3 greater than necessary,” to advance the purposes of that section. In other words, McCown argues 4 that the District Court was free to impose a sentence below 120 months if it found such a sentence 5 “sufficient, but not greater than necessary” to further the goals of section 3553(a) and that it erred 6 in believing itself bound by the mandatory minimum in section 841(b). 7 This Court has previously considered and rejected this very argument in the context of a 8 mandatory minimum sentence imposed pursuant to section 841(b). See United States v. Samas, 561 9 F.3d 108, 110-11 (2d Cir. 2009). As we explained in Samas, the wording of section 3553(a) is not 10 “inconsistent with a [congressionally prescribed] sentencing floor.” Id. at 111; see also Kimbrough 11 v. United States, 552 U.S. 85, 107 (2007) (“[S]entencing courts,” although permitted by § 3553(a), 12 after Booker, to deviate from an advisory-Guidelines-recommended range of imprisonment based 13 on their policy disagreements with the Guidelines, “remain bound by the mandatory minimum 14 sentences prescribed in the [statutes].”). McCown provides no basis for disturbing that conclusion 15 and conceded at oral argument that Samas binds this Court and forecloses his argument. Moreover, 16 because he does not raise any other challenge to his sentence as imposed, we affirm the sentence as 17 reasonable. 18 III. Conclusion 19 For the foregoing reasons, the judgment of the district court is AFFIRMED. 20

applied to unpreserved procedural reasonableness challenges. See United States v. Villafuerte, 502 F.3d 204, 208-11 (2d Cir. 2007). Because McCown identifies no error, plain or otherwise, we need not and do not address the issue.

1 FOR THE COURT: 2 Catherine O’Hagan Wolfe, Clerk 3 4 5