United States v. April

UNITED STATES OF AMERICA, Appellee, v. JAKEEM APRIL, Defendant-Appellant.

20-1136

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

May 13, 2021

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 13^th day of May, two thousand twenty-one.

Present: DEBRA ANN LIVINGSTON, Chief Judge, ROSEMARY S. POOLER, WILLIAM J. NARDINI, Circuit Judges.

For Defendant-Appellant:

MOLLY CORBETT, James P. Egan, Assistant Federal Public Defenders, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Albany, NY.

For Appellee:

PAUL D. SILVER, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney, Northern District of New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Northern District of New York (Mordue, J.).

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

Defendant-Appellant Jakeem April ("April") appeals from a judgment of conviction entered by the United States District Court for the Northern District of New York (Mordue, J.) on March 16, 2020, sentencing him to 41 months' imprisonment to run concurrently with a New York State sentence, as well as a six-year term of supervised release. On appeal, April contends that the district court erred by (1) determining that the conduct underlying two of his New York State drug-related convictions was not relevant conduct to his federal offense, instead counting the convictions towards his criminal history score; (2) designating the commencement of his sentence as the date of his initial appearance in federal court; and (3) sentencing him to a six-year term of supervised release without determining whether his prior conviction qualified as a "felony drug offense" resulting in an enhanced sentence. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

A. Relevant Conduct

"Under the Guidelines, a defendant's base offense level is determined based on 'relevant conduct.'" United States v. Burnett, 968 F.2d 278, 280 (2d Cir. 1992). Conduct that is "relevant" does not count as part of a defendant's criminal history. See U.S.S.G. § 4A1.2 cmt. n.1. "Relevant conduct" includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoiddetection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1); see United States v. Broxmeyer, 699 F.3d 265, 282 (2d Cir. 2012). It further includes, "with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

We review challenges to a district court's determination of whether particular acts are relevant conduct for purposes of a sentencing calculation for clear error. United States v. LaBarbara, 129 F.3d 81, 86 (2d Cir. 1997); see also United States v. Giraldo, 80 F.3d 667, 679 (2d Cir. 1996) (explaining that the determination of "whether several transactions are part of the same course of conduct is a factual one, and the district court's finding may not be overturned unless it is clearly erroneous"); United States v. Chartier, 970 F.2d 1009, 1015 (2d Cir. 1992) (same with respect to determinations of whether conduct is "part of a common scheme or plan"). A defendant bears the burden of demonstrating that conduct is relevant. See United States v. Brothers, 316 F.3d 120, 124 (2d Cir. 2003) (per curiam).

On March 12, 2020, the district court sentenced April after he pled guilty to a one-count indictment charging him with distributing heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The indictment resulted from April's November 17, 2017 sale of approximately 25 grams of heroin to a confidential informant in Schenectady, New York. On appeal, April argues that the district court erred by determining that two of his state court convictions were not relevant conduct to his federal conviction for purposes of his sentencing.¹ We disagree.

First, April has not demonstrated that his prior convictions were connected to his present offense conduct by a "common scheme or plan." U.S.S.G. § 1B1.3(a)(2). Application note 5(B)(i) to U.S.S.G. § 1B1.3 provides that "[f]or two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." This court has likewise stated that courts may consider a number of relevant factors as evidence that conduct was connected by a "common scheme or plan," including: "(1) the time period within which the offenses took place, (2) the participants involved, (3) the victims targeted, (4) the motive, (5) the modus operandi, (6) the geographic location of the crimes, (7) the substantive offenses committed, (8) whether the acts were uncovered by a common investigation, and (9) whether the offenses were jointly planned." Brothers, 316 F.3d at 123-24 (internal citations omitted).

Here, April has provided no evidence that his drug sales were jointly planned or executed, that they were carried out through common means and with common accomplices, or that they involved similar participants. Id. April's convictions were also not closely related in terms of timing and geography, and they were not uncovered by a common law enforcement exercise. Id. While April nonetheless argues that his offenses were connected by virtue of a common purpose—helping him fund his drug addiction—this purpose is insufficiently specific to support a finding of a common scheme or plan. See LaBarbara, 129 F.3d at 87 ("The fact that [the defendant] was personally enriched by the two sets of crimes is not by itself enough to establish a common scheme or plan."). Cf. United States v. Gelzer, 50 F.3d 1133, 1143 (2d Cir. 1995) (explaining that "criminalbehavior prompted by the same root causes of criminal deviance" is insufficient to constitute a "common scheme or plan" for purposes of the career offender provision); Chartier, 970 F.2d at 1016 ("The mere fact, however, that, in engaging in a pattern of criminal behavior, the defendant has as his purpose the acquisition of money to lead a particular lifestyle does not mean either that he had devised a single common scheme or plan [for the purposes of the career offender provision] or, if he had, that his course of conduct was necessarily part of it."). Accordingly, we conclude that April has not met his burden of showing a "common scheme or plan" connecting his present offense conduct with his state court convictions. See United States v. Bryant, 571 F.3d 147, 160 (1st Cir. 2009) (recognizing the "important limiting principle that not every drug transaction undertaken by every drug trafficker is necessarily linked in a meaningful sense" when determining relevant conduct (internal quotation marks omitted)).

Second, April has not demonstrated that his offenses were part of the "same course of conduct." U.S.S.G. § 1B1.3(a)(2). Application note 5(B)(ii) to U.S.S.G. § 1B1.3 provides that "[o]ffenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." Factors relevant to this determination include "the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses." Id.; see United States v. Shonubi, 998 F.2d 84, 89 (2d Cir. 1993) (explaining that when determining whether a defendant has been engaging in the "same course of conduct," courts "look[] to see if the defendant has been engaged over time in an identifiable pattern of criminal conduct"). However, "[w]hen one of the above factors is absent, a stronger presence of at least one of the other factors is required." U.S.S.G. § 1B1.3 cmt. n.5(B)(ii).

Here, April points to few similarities in his conduct to suggest "regularity," id., and "an identifiable pattern of criminal conduct," Shonubi, 998 F.2d at 89. Cf. Santiago, 906 F.2d at 873 (finding the defendant's drug sales to be part of the same course of conduct where, despite the passage of eight months, the defendant had made 13 sales to the same buyer and routinely met in the same place to carry out the sales); United States v. Colon, 961 F.2d 41, 43 (2d Cir. 1992) (finding "same course of conduct" where the defendant stated that he sold 80 glassine envelopes every two or three days for a few years to support his addictions); Shonubi, 998 F.2d at 89 (defendant made eight trips to Nigeria during which he imported heroin). Indeed, there is no evidence that the drugs involved in each of April's convictions shared a common source, supplier, or destination. April has also not supplied details as to how he found his customers and executed his transactions....