U.S. v. Legros, Docket No. 05-2828-cr.

• Decision Date: 17 June 2008
• Docket Number: Docket No. 05-2828-cr.
• Parties: UNITED STATES of America, Appellee, v. Herby LEGROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

529 F.3d 470

UNITED STATES of America, Appellee, v. Herby LEGROS, Defendant-Appellant.

Docket No. 05-2828-cr.

United States Court of Appeals, Second Circuit.

Submitted: February 22, 2008.

Decided: June 17, 2008.

Vivian Shevitz, South Salem, NY, for Appellant.

Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Peter A. Norling, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY, for Appellee.

Before: JACOBS, Chief Judge, CALABRESI, and SACK, Circuit Judges.

SACK, Circuit Judge:

Defendant Herby Legros appeals from a judgment of conviction of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) sentencing him principally to a term of imprisonment of 120 months for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Legros appeals his sentence only. We conclude that it is procedurally "unreasonable" because the district court's findings of fact, as stated on the record, do not support a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with another felony offense.¹ We therefore vacate the judgment and remand for resentencing. At resentencing, the district court may either recalculate the applicable Guidelines range without the enhancement or make additional factual findings that sufficiently support the enhancement. The judgment below is in all other respects affirmed.

BACKGROUND

On November 1, 2003, police responded to a series of "911" calls reporting multiple shots fired in the street of a residential area of West Babylon, Suffolk County, New York. Two police officers arrived on the scene almost immediately, spotted three men in the vicinity, and approached them. One of them (later identified as Legros) ran. One of the officers pursued him. During the chase, Legros tossed a handgun to the ground. He was arrested by the officer. The gun he discarded was later matched to spent shell casings and one expended bullet recovered from the scene of the reported gunshots.

Legros was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Following a jury trial, he was convicted of the offense.

Prior to sentencing the United States Probation Office prepared a presentence investigation report ("PSR") calculating a sentencing range under the United States Sentencing Guidelines of 110 to 137 months. According to the PSR, the Probation Office arrived at that range by assessing a base offense level of 20, U.S.S.G. § 2K2.1(a)(4)(A); a two-level enhancement because the firearm was stolen, id. § 2K2.1(b)(4)(A); a four-level enhancement because the firearm was possessed in connection with another felony offense, id. § 2K2.1(b)(6); and a criminal history category of V. The maximum sentence permitted by statute, however, was 120 months, ten months above the bottom of the applicable Guidelines range. See 18 U.S.C. § 924(a)(2).

The four-level enhancement under U.S.S.G. § 2K2.1(b)(6) is central to this appeal. Without the enhancement, the applicable Guidelines range would have been 77 to 96 months.

According to the PSR, the enhancement was based on the assertion that Legros had committed "aggravated assault" by shooting at one Christopher Passius in retaliation for Passius's testimony against two fellow gang members who had been convicted in state court of manslaughter for beating to death a member of a rival gang. The government argued that the enhancement was proper because Legros had "discharged the charged firearm at Christopher Passius in retaliation for what [Legros] believed was Passius's betrayal of fellow `Bloods' members through Passius's cooperation with Suffolk County law enforcement at trial." Letter from Special Assistant U.S. Attorney Sondra M. Mendelson to the district court dated Mar. 31, 2005, at 4.

Legros challenged the enhancement. He argued that there was no evidence that he was in a gang or that he had shot at Passius or anyone else.

At the sentencing hearing, the government introduced evidence intended to support the enhancement. The police had taken a statement of one Jermaine Bullock, who said he had seen Legros fire a weapon. Although Bullock himself did not testify,² Detective Christopher Loeffler, who had taken Bullock's statement, read Bullock's statement to the court. The district court found Bullock's hearsay statement reliable and admitted it. In relevant part, Loeffler said that Bullock told him:

When I was looking up the street, I saw a guy with a hood and I heard a few shots. At first I took cover, but then I tried to mediate the crisis between Chris and Herb. Herb was firing in the air. Police told me they found a bullet hole in Chris's car. I don't know how that got there.

Sentencing Transcript, May 20, 2005 ("Sentencing Tr."), at 38 (emphasis added).

At the conclusion of the hearing, the court imposed a term of imprisonment of 120 months, which was the maximum permitted by statute and within the range of 110 to 137 months recommended in the PSR based in part on the four-level enhancement. The court said that "there is proof adduced at th[e] hearing that the defendant was the individual who fired the gun in the air." Id. at 73. Noting also that the shooting occurred in a residential neighborhood, the court found that such conduct "amounts to reckless endangerment." Id. Alternatively, the court found that the enhancement was applicable on the basis relied upon in the PSR: that Legros had possessed the gun in the course of committing an aggravated assault.

Legros appeals.

DISCUSSION

I. Standard of Review

[T]he appellate court . . . must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed. . . .

Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review sentences for reasonableness under an abuse-of-discretion standard. United States v. Cutler, 520 F.3d 136, 156 (2d Cir.2008). The abuse-of-discretion standard incorporates de novo review of questions of law (including interpretation of the Guidelines) and clear-error review of questions of fact. Cutler, 520 F.3d at 157; see also United States v. Richardson, 521 F.3d 149, 156 (2d Cir.2008).

II. Enhancement Under U.S.S.G. § 2K2.1(b)(6)

Legros argues that there is insufficient evidence to support a four-level enhancement on the ground that he "used or possessed any firearm . . . in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6). According to the applicable Guidelines' commentary, this enhancement applies "if the firearm . . . facilitated, or had the potential of facilitating, another felony offense." U.S.S.G. § 2K2.1 application note 14(A). The commentary defines "another felony offense" as "any [f]ederal, state, or local offense," other than the offense of conviction, "punishable by imprisonment for a term exceeding one year, regardless of whether the criminal charge was brought, or a conviction obtained." Id., application note 14(C).

The government bears the burden of proving by a preponderance of the evidence that the defendant committed another felony offense. United States v. Spurgeon, 117 F.3d 641, 643 (2d Cir.1997) (per curiam). Each element of the underlying felony offense must be established. See United States v. Betts, 509 F.3d 441, 445 (8th Cir.2007). Although we do not require that the district court state each element on the record and declare it proved by a preponderance of the evidence, like other "facts disputed in connection with sentencing, the [district] court is required to make findings sufficient to permit appellate review." United States v. Thompson, 76 F.3d 442, 456 (2d Cir.1996).

A. Reckless Endangerment

We begin with the district court's finding that Legros's possession of the gun was in connection with his commission of the crime of reckless endangerment. In New York, there are two degrees of reckless endangerment. "A person is guilty of reckless endangerment in the second degree," a misdemeanor, "when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." N.Y. Penal Law § 120.20. "A person is guilty of reckless endangerment in the first degree," a felony, "when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." Id. § 120.25. Under New York law, depraved indifference to human life is a "culpable mental state." People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 695, 852 N.E.2d 1163, 1167 (2006).

Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill. Quintessential examples are firing into a crowd; driving an automobile along a crowded sidewalk at high speed; opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway.

People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 276, 844 N.E.2d 721, 730

(2005) (per curiam) (internal quotation marks,...