688 F.3d 74 (2nd Cir. 2012), 11-48-cr, United States v. Highsmith

Docket Nº:11-48-cr.
Citation:688 F.3d 74
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Appellee, v. John HIGHSMITH, Defendant-Appellant.
Attorney:Nicholas J. Pinto, New York, N.Y., for Defendant-Appellant. Daniel S. Silver, Susan Corkery, Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.
Judge Panel:Before: LIVINGSTON, LYNCH, and DRONEY, Circuit Judges.
Case Date:August 08, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 74

688 F.3d 74 (2nd Cir. 2012)

UNITED STATES of America, Appellee,

v.

John HIGHSMITH, Defendant-Appellant.

No. 11-48-cr.

United States Court of Appeals, Second Circuit.

August 8, 2012

Submitted: March 23, 2012.

Nicholas J. Pinto, New York, N.Y., for Defendant-Appellant.

Daniel S. Silver, Susan Corkery, Assistant United States Attorneys, for Loretta

Page 75

E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

Before: LIVINGSTON, LYNCH, and DRONEY, Circuit Judges.

PER CURIAM:

Defendant-appellant John Highsmith pled guilty to one count of conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii), and one count of weapons possession in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c). He appealed, arguing that the district court erred by failing to make a specific finding of fact as to whether the firearm, which he admits to having possessed in furtherance of a drug-trafficking crime, " [was] discharged" in violation of 18 U.S.C. § 924(c)(1)(A)(iii). While the appeal was pending, the Supreme Court decided Dorsey v. United States, __ U.S. __, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), which held that the more lenient sentences Congress created under the Fair Sentencing Act (" FSA" ), Pub.L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010), applied to those defendants who were to be sentenced after the FSA became law for crimes committed before that event. Pursuant to our order, the parties briefed Dorsey's effect on Highsmith's sentence, and agree that we must vacate the sentence and remand for resentencing consistent with Dorsey. We write to make clear that Dorsey abrogates our decision in United States v. Acoff, 634 F.3d 200 (2d Cir.2011), and to reject Highsmith's remaining argument that the district court plainly erred by adopting the presentence investigation report (" PSR" ) without making further fact-findings. We therefore vacate the sentence and remand for resentencing consistent with Dorsey and whatever additional fact-finding the district court deems necessary in light of this opinion.

BACKGROUND

On April 15, 2004, pursuant to a plea agreement, Highsmith pled guilty to a two-count superseding information. By that agreement, Highsmith acknowledged his participation in a drug conspiracy in the Gowanus Housing Development in Brooklyn, New York, from 1997 through June 1999.1 Highsmith pled guilty to conspiring to distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii). Under the law at the time of the events of the conspiracy and at the time of the plea, the quantity of crack which Highsmith admitted he conspired to sell triggered a mandatory minimum sentence of ten years of incarceration. Id. § 841(b)(1)(A).

Highsmith also pled guilty to Count Two of the information, which alleged a violation of an unspecified subsection of 18 U.S.C. § 924(c). Section 924(c) generally prohibits a person from using or carrying a firearm in furtherance of " any crime of violence or drug trafficking crime." Id. The statute provides for mandatory minimum sentences, which must be served consecutively to sentences for the underlying " crime of violence or drug trafficking crime," for different uses of firearms: five years for possession, id. § 924(c)(1)(A)(i), seven years if the " firearm is brandished," id. § 924(c)(1)(A)(ii), and ten years " if the firearm is discharged," id. § 924(c)(1)(A)(iii).

During the allocution regarding Count Two, Highsmith and the district court had the following colloquy:

Page 76

THE COURT: Now with respect to the second count, which is the firearm count, tell me what you did to commit that crime.

DEFENDANT: When I was distributing a controlled substance, I carried a firearm for protection.

THE COURT: I see. And this was between 1997 and June 1999?

DEFENDANT: Yes, sir.

...

THE COURT: And did you [carry a firearm] knowingly and intentionally in furtherance of the drug trafficking crime?

DEFENDANT: Yes.

The parties agreed to other details not relevant to this appeal, but did not specify the use to which the firearm was put, beyond the explanation Highsmith gave in the allocution quoted above.

The Probation Department's PSR included additional information about Highsmith's use of firearms. " In the early 2000's," according to the PSR, Highsmith used a weapon in the furtherance of a drug transaction. PSR ¶ 25. He brandished the weapon during that transaction and used it to " hit a drug user on the head," which caused the weapon to " fire[ ] a round." Id. There is no other evidence in the record regarding Highsmith's brandishing or discharging a firearm.

On November 18, 2010, the district court sentenced Highsmith. It concluded, and the parties agreed, that the applicable Guidelines range was 360 months to life. The district court imposed a below-Guidelines sentence of ten years on each count, to be served consecutively, and five years supervised release. For Count Two, while the district court did not cite any specific subsection of § 924(c), it did note that " Count [T]wo, which is the gun offense, carries a...

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11 practice notes
  • 813 F.3d 462 (2nd Cir. 2016), 14-4120, United States v. Guerrero
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • 11 Febrero 2016
    ...doing so would violate the ex post facto clause." Id. at 2332 (internal quotation marks omitted); accord United States v. Highsmith, 688 F.3d 74, 77 (2d Cir. 2012) (per Guerrero argues that the FSA compels vacatur of his conviction. He reasons that, while his September 1994 murder offe......
  • Dozier v. United States, 062314 NYSDC, 13 Civ. 5061 (RWS)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • 23 Junio 2014
    ...FSA but sentenced after the enactment. On August 8, 2012, the Second Circuit abrogated its holding in Acoff in United States v. Highsmith, 688 F.3d 74 (2d Cir. 2012), in light of Dozier's appellate counsel did not raise Dorsey or the retroactive applicability of the FSA with the Court of Ap......
  • Rodriguez v. United States, 081215 CTDC, 3:12-cv-42 (SRU)
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • 12 Agosto 2015
    ...clause), abrogated on other grounds by Dorsey v. United States, 132 S.Ct. 2321 (2012), as recognized in United States v. Highsmith, 688 F.3d 74, 77 (2d Cir. [2] No hearing regarding Adames's proposed testimony is necessary because, even assuming that Adames would testify that Rodriguez did ......
  • United States v. Whitmore, 071814 FED2, 10-4306-cr
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • 18 Julio 2014
    ...202 (2d Cir. 2011), abrogated by Dorsey v. United States, __ U.S. __, 132 S.Ct. 2321 (2012), as recognized in United States v. Highsmith. 688 F.3d 74, 75 (2d Cir. 2012). In light of Dorsey, however, Whitmore's sentence is subject to the FSA, and the offense charged in the indictment, upon w......
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11 cases
  • 813 F.3d 462 (2nd Cir. 2016), 14-4120, United States v. Guerrero
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • 11 Febrero 2016
    ...doing so would violate the ex post facto clause." Id. at 2332 (internal quotation marks omitted); accord United States v. Highsmith, 688 F.3d 74, 77 (2d Cir. 2012) (per Guerrero argues that the FSA compels vacatur of his conviction. He reasons that, while his September 1994 murder offe......
  • Dozier v. United States, 062314 NYSDC, 13 Civ. 5061 (RWS)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • 23 Junio 2014
    ...FSA but sentenced after the enactment. On August 8, 2012, the Second Circuit abrogated its holding in Acoff in United States v. Highsmith, 688 F.3d 74 (2d Cir. 2012), in light of Dozier's appellate counsel did not raise Dorsey or the retroactive applicability of the FSA with the Court of Ap......
  • Rodriguez v. United States, 081215 CTDC, 3:12-cv-42 (SRU)
    • United States
    • Federal Cases United States District Courts 2nd Circuit District of Connecticut
    • 12 Agosto 2015
    ...clause), abrogated on other grounds by Dorsey v. United States, 132 S.Ct. 2321 (2012), as recognized in United States v. Highsmith, 688 F.3d 74, 77 (2d Cir. [2] No hearing regarding Adames's proposed testimony is necessary because, even assuming that Adames would testify that Rodriguez did ......
  • United States v. Whitmore, 071814 FED2, 10-4306-cr
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • 18 Julio 2014
    ...202 (2d Cir. 2011), abrogated by Dorsey v. United States, __ U.S. __, 132 S.Ct. 2321 (2012), as recognized in United States v. Highsmith. 688 F.3d 74, 75 (2d Cir. 2012). In light of Dorsey, however, Whitmore's sentence is subject to the FSA, and the offense charged in the indictment, upon w......
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