U.S. v. Williams, DO-REA

• Decision Date: 05 June 2000
• Docket Number: DO-REA,RAFAEL,Docket Nos. 99-1277,DEFENDANTS-APPELLANTS
• Citation: 260 F.3d 160
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. NOLAN WILLIAMS, ALSO KNOWN AS RAHMEL, JOHN JOHNSON, ALSO KNOWN AS GOTTI, DESTRY KEARSE, ALSO KNOWN AS CAT, DUPREE CUMBERBATCH, ALSO KNOWN ASARROYO, ALSO KNOWN AS B.T., ALSO KNOWN AS LUIS GARCIA, ALSO KNOWN AS PONCH, JERMAINE STRAIGHT, ALSO KNOWN AS SHRIMP, KEVIN NIX, DEFENDANTS, MICHAEL KING, ALSO KNOWN AS SCIENCE, RANDY HUTCHINSON, TIMOTHY RUCKER, ALSO KNOWN AS TUQUAN,(L), 99-1395(CON), 99-1428(CON) Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 160

260 F.3d 160 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. NOLAN WILLIAMS, ALSO KNOWN AS RAHMEL, JOHN JOHNSON, ALSO KNOWN AS GOTTI, DESTRY KEARSE, ALSO KNOWN AS CAT, DUPREE CUMBERBATCH, ALSO KNOWN AS DO-REAL, RAFAEL ARROYO, ALSO KNOWN AS B.T., ALSO KNOWN AS LUIS GARCIA, ALSO KNOWN AS PONCH, JERMAINE STRAIGHT, ALSO KNOWN AS SHRIMP, KEVIN NIX, DEFENDANTS, MICHAEL KING, ALSO KNOWN AS SCIENCE, RANDY HUTCHINSON, TIMOTHY RUCKER, ALSO KNOWN AS TUQUAN, DEFENDANTS-APPELLANTS.

Docket Nos. 99-1277(L), 99-1395(CON), 99-1428(CON)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 5, 2000

Decided: Aug. 9, 2001

Roger J. Bernstein, New York, New York, for Defendant-Appellant Hutchinson.

Kelly A. Moore, Assistant United States Attorney (Loretta E. Lynch, United States Attorney, Eastern District of New York, and David C. James, Assistant United

States Attorney, on the brief), Brooklyn, New York, for Appellee.

Before: Walker, Chief Judge, Pooler, Circuit Judge, and Haden, Chief District Judge.^*

John M. Walker, Jr., Chief Judge

Defendant Randy Hutchinson appeals from a June 21, 1999 judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Senior District Judge) convicting him after a guilty plea of conspiracy to possess cocaine with intent to distribute and sentencing him to twenty years' imprisonment.¹ On appeal, Hutchinson argues that section 5G1.3(b) of the United States Sentencing Guidelines mandates that his sentence should have been imposed to run concurrently with his existing undischarged state sentence, with credit for time served on that state sentence. We disagree and therefore affirm Hutchinson's sentence.

BACKGROUND

This prosecution arose from a joint investigation by the Federal Bureau of Investigation and New York Police Department into a large and violent drug distribution gang, the CIC/Cavemen, beginning in mid-1997. In the early 1990s, a street gang known as "Criminals in Charge" or "CIC" operated from the Cypress Hills Housing Projects in Brooklyn, New York. Headed by Michael King, the CIC enlisted numerous residents of the Cypress Hills Projects to sell drugs. The "CIC/Cavemen" gang came into being when the CIC combined with Timothy Rucker's Cavemen gang, from the neighboring Louis H. Pink Housing Projects. The combined gangs shared drugs, guns, workers, and a desire to eliminate rival drug dealers. Hutchinson ran a drug distribution operation in Utica, New York that was supplied by the CIC/Cavemen organization in Brooklyn.

In 1995, Hutchinson was arrested and charged in New York state court with attempted possession of 30 grams of cocaine base. He pled guilty and was sentenced in March 1997 to one to four years in state prison. While in prison, Hutchinson and nine other CIC/Cavemen associates were named in the twenty-two count federal indictment at issue here. It charged Hutchinson's involvement in (1) a drug conspiracy, (2) a continuing criminal enterprise, (3) a racketeering conspiracy, (4) a murder conspiracy, and (5) the use or carrying of a firearm during drug trafficking activity. With roughly eleven months of his state sentence behind him, Hutchinson was transferred to federal custody in January 1998.

Following jury selection, some of the defendants entered global, oral plea agreements with the government. All of the pleas involved sentence bargains under Fed. R. Crim. P. 11(e)(1)(C) (1999) and provided the pleading defendants with substantial benefits. In Hutchinson's case, in return for avoiding a lengthy and costly trial, the government permitted Hutchinson to plead guilty solely to the drug conspiracy charge. Had Hutchinson gone to trial and been convicted of all of the charged offenses, a life sentence would have been mandatory.² Under the plea agreement's stipulated sentence, however, Hutchinson faced a certain and significant, but much lighter, twenty-year prison term. The plea agreement made no mention of whether the stipulated federal sentence of twenty years would be served consecutive to, or concurrent with, the sentence Hutchinson was then serving in state prison. In the plea agreement, Hutchinson waived his right to appeal the length of his sentence.

There was some dispute in the district court about how the Sentencing Guidelines would apply to Hutchinson's sentence. At Hutchinson's January 28, 1999 plea allocution, the district court stated that

I would normally explain what the guidelines are all about and what the estimated guidelines in this case might be. That is superfluous because each of you has entered in an agreement with the government that the government has accepted the plea agreement pursuant to a particular section of the Criminal Procedure law, [whereby the] sentence... is agreed upon.

After the district court had accepted the plea, Hutchinson argued that the district court should apply U.S.S.G. § 5G1.3(b) to make the federal sentence run concurrently with his existing state sentence and to credit Hutchinson for the time already served on his state sentence. The district court rejected the argument:

With respect to the 5G1.3, I have no doubt that the part[i]es agreed upon a sentence of twenty years, not a sentence of twenty years minus two, three, or whatever time it was that Mr. Hutchinson was doing with respect to the Utica offense. And I just don't think [] 5G1.3 has any application to that situation....

The district court also denied Hutchinson's requests for (1) a hearing pursuant to United States v. Fatico, 458 F. Supp. 388 (E.D.N.Y. 1978), aff'd, 603 F.2d 1053 (2d Cir. 1979); (2) a downward departure based on family circumstances; and (3) appointment of new counsel. The district court then imposed a twenty-year sentence.

Hutchinson now appeals his sentence.

DISCUSSION

On appeal, Hutchinson's principal claim of error is that the district court failed to credit him for time served on his state conviction in contravention of section 5G1.3(b) of the United States Sentencing Guidelines. Section 5G1.3(b) states that if there is an undischarged term of imprisonment for an offense that has been "fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment." Application Note 2 to section 5G1.3 further states that, if a sentence is imposed concurrently under section 5G1.3(b), the district court "should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense." U.S.S.G. § 5G1.3 cmt. n.2.

We first hold that we have appellate jurisdiction over this appeal under 18 U.S.C. § 3742(a) and that Hutchinson has not waived his right to appeal the question presented. On the merits, we hold that the district court was required to apply section 5G1.3(b) to Hutchinson's stipulated sentence, in light of the plea agreement's failure to address the question. Because the basis of the district court's refusal to impose a concurrent sentence was unclear, however, we proceed to consider whether Hutchinson would have benefitted from section 5G1.3(b) if the district court had applied it to the Rule 11(e)(1)(C) sentence bargain. We hold that it would have made no difference to his sentence and accordingly affirm the sentence imposed by the district court.

I. Appellate Jurisdiction

The government contends that we lack jurisdiction to review the district court's failure to apply U.S.S.G. § 5G1.3(b). We disagree.

Our jurisdiction to review sentences in criminal cases is governed by 18 U.S.C. § 3742. Section 3742(a) states in part that "[a] defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence- (1) was imposed in violation of the law; [or] (2) was imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(a). We construe Hutchinson's appeal to assert either that the district court committed legal error in entirely refusing to apply section 5G1.3(b) or that the district court misapplied it. In any event, we have jurisdiction to hear the appeal under § 3742(a)(1) or (a)(2).

The transcript is ambiguous as to whether the district court viewed section 5G1.3(b) as simply inapplicable to a Rule 11(e)(1)(C) plea agreement or whether it thought that, on the specific facts of this case, section 5G1.3(b) was inapplicable because Hutchinson's prior offense had not been "fully taken into account" within the meaning of section 5G1.3(b). As we have noted, the district court stated generally that the Guidelines were inapplicable to a Rule 11(e)(1)(C) bargain and at one point stated specifically that "I just don't think... 5G1.3 has any application" to such a plea agreement. Elsewhere in the record, however, the district court implied that section 5G1.3 could mandate a concurrent sentence only if the state and federal offenses were the same, i.e., comprised the same elements, but that Hutchinson's offenses were not: "[I]t's quite clear that what Mr. Hutchinson pleaded to was not the substantive offense of distributing cocaine in Utica, he was pleading to conspiracy to possess with intent to distribute cocaine, which is a separate and distinct offense."

If the district court erred in its belief that section 5G1.3(b) is always irrelevant to a Rule 11(e)(1)(C) plea, then its failure to apply the Guideline would be an error of law cognizable by this court under 18 U.S.C. § 3742(a)(1). Hutchinson's brief on appeal argues that the district court made such an error. That contention is analogous to the more familiar complaint that a district court failed to depart downward because it believed it lacked legal authority to do so, a claim that we have held will support our jurisdiction under § 3742(a)(1). See United States v. Adeniyi, 912 F.2d 615, 619 (2d Cir. 1990) ("A...