427 F.3d 159 (2nd Cir. 2005), 04-2239, United States v. Kurti

Docket Nº:Docket No. 04-2239-CR.
Citation:427 F.3d 159
Party Name:UNITED STATES of America, Appellee, v. Ibrahim KURTI, Defendant-Appellant.
Case Date:October 19, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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427 F.3d 159 (2nd Cir. 2005)

UNITED STATES of America, Appellee,

v.

Ibrahim KURTI, Defendant-Appellant.

Docket No. 04-2239-CR.

United States Court of Appeals, Second Circuit.

October 19, 2005

Argued: May 19, 2005

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Gary Becker (Law Office of Eric Franz, Of Counsel) New York, NY, for Defendant-Appellant.

David N. Kelley, United States Attorney for the Southern District of New York (Mark A. Racanelli, Jonathan R. Streeter, Adam B. Siegel, Assistant United States Attorneys, Of Counsel) New York, NY, for Appellee.

Before: WINTER, KATZMANN, Circuit Judges, and MURTHA, District Judge. [*]

MURTHA, District Judge.

I. BACKGROUND

On July 23, 2003, the defendant-appellant, Ibrahim Kurti, waived indictment and consented to the filing of a superseding information which charged him with one count of participating in a conspiracy to distribute and possess with intent to distribute quantities of ecstasy and one count of participating in a conspiracy to distribute and possess with intent to distribute 50 kilograms or more of marijuana, both in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C). That same day, Kurti pled guilty to both counts of the information.

On October 7, 2003, Judge Preska held a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), to determine: (1) the quantities of ecstasy and marijuana involved in Kurti's offenses; and (2) whether Kurti's possession of a firearm and/or his leadership role in the offenses merited an enhancement under the Sentencing Guidelines.

On April 14, 2004, the judge issued her Fatico hearing findings and sentenced the defendant. She found over 240,000 ecstasy pills and approximately 200 to 400 kilograms of marijuana attributable to Mr. Kurti's criminal activities. These findings indicated a base offense level of 38 (A-159).

The court further found the credible testimony established Kurti possessed a firearm while operating his ecstasy business from his apartment, resulting in a two-level enhancement (A-160), and that he supervised more than five individuals, resulting in an additional three-level enhancement (A-163). She then afforded Kurti a three-point reduction for acceptance of responsibility. Based on these findings and applying the November 2002 Sentencing Guidelines, the judge determined Kurti's total offense level to be 40.

Judge Preska also established Kurti's criminal history category to be III, based on, inter alia, his prior conviction in New

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York state court for robbery in the third degree (A-164). This yielded a Guideline range of 360 months to life imprisonment. See 2001 U.S.S.G. §§ 2D1.1(a)(2) (base offense level of 38), 2D1.1(b)(1) (weapon enhancement), 3B1.1(b) (enhancement for organizer or leader role). The court sentenced Kurti to a term of 360 months' imprisonment, followed by three years' supervised release, and imposed a mandatory $200 special assessment (A-167).

II. DISCUSSION

A. Double Jeopardy Claim

Kurti pled guilty to two separate charges: one conspiracy to possess and distribute ecstasy and one conspiracy to possess and distribute marijuana. See United States v. Papadakis, 510 F.2d 287...

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