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United States v. Roseboro

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Dec 2, 2020
No. 19-2052-cr (2d Cir. Dec. 2, 2020)

Opinion

No. 19-2052-cr

12-02-2020

UNITED STATES OF AMERICA, Appellee, v. KAREEM ROSEBORO, AKA SWISS, MICHAEL BENNETT, JONATHAN ZAYAS, MARCUS MILTON, GLEN PORTER, AKA KURAN, ROY TROTTER, AKA NEZ, CEWELL SHARPE, AKA C.C., Defendants, HARRY BLAKE, AKA HARRY-O, AKA "O", Defendant-Appellant.

For Appellee: H. GORDON HALL (Mark H. Silverman, on the brief), Assistant United States Attorneys, for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT. For Defendant-Appellant: FRANCIS O'REILLY, O'Reilly & Shaw, LLC, Fairfield, CT.


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 2nd day of December, two thousand twenty. Present: JOHN M. WALKER, JR., ROBERT A. KATZMANN, RICHARD C. WESLEY, Circuit Judges. For Appellee: H. GORDON HALL (Mark H. Silverman, on the brief), Assistant United States Attorneys, for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT. For Defendant-Appellant: FRANCIS O'REILLY, O'Reilly & Shaw, LLC, Fairfield, CT.

Appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-appellant Harry Blake appeals from a judgment of conviction entered by the United States District Court for the District of Connecticut (Arterton, J.). A jury convicted Blake of one count of conspiracy to possess with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i), and 846, and the district court sentenced him principally to 168 months of imprisonment. Blake argues that the district court erred in denying his motion for a two-point reduction in his offense level for acceptance of responsibility pursuant to § 3E1.1(a) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

The district court calculated a total offense level of 32 and a criminal history category of IV, resulting in a Guidelines range of 168-210 months of imprisonment. Had the court applied the two-level reduction under U.S.S.G. § 3E1.1(a), Blake's Guidelines range would have been 135-168 months of imprisonment.

U.S.S.G. § 3E1.1(a) directs the sentencing court to reduce a defendant's offense level by two points if that defendant "clearly demonstrates acceptance of responsibility for his offense." We review the district court's decision not to apply this adjustment in Blake's Guidelines calculation for abuse of discretion. See United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013). This standard allows for de novo review of the district court's legal conclusions about the Guidelines, but it requires us to respect the district court's factual determination that the defendant has not demonstrated acceptance of responsibility unless such determination is "without foundation." United States v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (quoting United States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994)); see also U.S.S.G. § 3E1.1 Application Note 5 ("The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.").

Here, the district court first concluded that Blake was not precluded from receiving acceptance of responsibility credit as a matter of law. The court noted that Application Note 2 to U.S.S.G. § 3E1.1 provides that the acceptance of responsibility adjustment "is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." Special App. 89 The court then explained that "[t]he Defendant doesn't fit into that category, as he effectively admitted guilt at the beginning of trial during opening statement . . . ." Id. Nevertheless, the district court declined to apply the reduction to Blake's Guidelines calculation. Acknowledging that Application Note 2 to U.S.S.G. § 3E1.1 also provides that, when a defendant is convicted at trial, "a determination that [he] has accepted responsibility will be based primarily upon pre-trial statements and conduct," the district court found that "anything that could be construed as evidence of acceptance of responsibility occurred at trial at the earliest." Id. at 90.

The district court did not err in reaching this conclusion. First, the district court properly looked to Blake's pretrial behavior in determining whether he had accepted responsibility within the meaning of the Guidelines. See U.S.S.G. § 3E1.1 Application Note 2. And the district court's finding that Blake had not demonstrated acceptance of responsibility prior to the start of his trial was hardly "without foundation." Taylor, 475 F.3d at 68. The record reveals no facts that would evince acceptance of responsibility prior to defense counsel's concession of Blake's guilt as to the heroin conspiracy during his opening statement, and Blake cites no such facts. Every additional example of Blake's acceptance of responsibility—defense counsel's concession in his summation, Blake's statement during his pre-sentence interview, and Blake's allocution at sentencing—occurred even later in time.

Blake responds that his failure to demonstrate acceptance of responsibility prior to trial should, in effect, be excused because he had no practical way to do so with respect to the heroin charge (Count One of the superseding indictment) while continuing to maintain his innocence with respect to the charges related to the murder of Kendall Willis (Counts Two through Seven of the same). We disagree. Even though the government apparently did not offer a deal in which it would dismiss Counts Two through Seven in exchange for Blake pleading guilty to Count One, Blake still could have pled guilty to the latter without a deal, while asserting his innocence to the former. See United States v. De Leon Ruiz, 47 F.3d 452, 455 (1st Cir. 1995) (denying acceptance of responsibility credit where the defendant, who was convicted on drug charges and acquitted on a firearms charge, "could have pleaded to [the drug charges], preserved his defense on [the firearms charge], and spared the government the necessity of proving his guilt at trial on the drug counts," but did not).

Nor is there is any indication in the record that Blake even offered to plead guilty to Count One in exchange for the government dismissing Counts Two through Seven—which he bears the burden to demonstrate. See United States v. Broxmeyer, 699 F.3d 265, 284 (2d Cir. 2012). To the contrary, the record belies Blake's assertion that he was "prepared" to plead guilty to the heroin count alone. During the eleven months between Blake's original and superseding indictments, Blake faced only two charges, both of which related to heroin distribution. But rather than plead guilty to those charges, Blake acted as though he was prepared to go to trial imminently, even filing proposed voir dire and jury instructions on the district court docket shortly before his original trial date. Although Blake's jury vindicated him on Counts Two through Seven, the district court did not err by looking to Blake's pretrial conduct to determine whether he had demonstrated acceptance of responsibility as to Count One within the meaning of U.S.S.G. § 3E1.1(a).

Blake's original indictment charged him with both heroin conspiracy (the same charge as Count One of the superseding indictment) as well as substantive heroin possession in violation of 21 U.S.C. § 841(b)(1)(C). The government later dismissed the substantive count. --------

We have considered Blake's remaining arguments on appeal and have found in them no basis for reversal. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk


Summaries of

United States v. Roseboro

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Dec 2, 2020
No. 19-2052-cr (2d Cir. Dec. 2, 2020)
Case details for

United States v. Roseboro

Case Details

Full title:UNITED STATES OF AMERICA, Appellee, v. KAREEM ROSEBORO, AKA SWISS, MICHAEL…

Court:UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Date published: Dec 2, 2020

Citations

No. 19-2052-cr (2d Cir. Dec. 2, 2020)