U.S. v. Carlton

• Citation: 442 F.3d 802
• Decision Date: 24 March 2006
• Docket Number: Docket No. 05-0974-CR.
• Parties: UNITED STATES of America, Appellee, v. Rasheim CARLTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

442 F.3d 802

UNITED STATES of America, Appellee, v. Rasheim CARLTON, Defendant-Appellant.

Docket No. 05-0974-CR.

United States Court of Appeals, Second Circuit.

Argued September 12, 2005.

Decided March 24, 2006.

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Clinton W. Calhoun, III, Briccetti, Calhoun & Lawrence, LLP, White Plains, New York, for Defendant-Appellant.

Daniel S. Dorsky, Assistant United States Attorney, New York, New York (David N. Kelley, United States Attorney, Karl Metzner, Assistant United States Attorney, Southern District of New York, New York, New York, of counsel), for Appellee.

Before: CARDAMONE, CABRANES, and POOLER, Circuit Judges.

CARDAMONE, Circuit Judge:

Defendant Rasheim Carlton (defendant or appellant) appeals a February 22, 2005 judgment of the United States District Court for the Southern District of New York (Robinson, J.) revoking his term of supervised release imposed pursuant to 18 U.S.C. § 3583(e)(3) and sentencing him to a term of 35 months imprisonment and 25 months supervised release. Carlton contends that 18 U.S.C. § 3583(e)(3), which empowers a district court to revoke a term of supervised release without a jury trial, is invalid as applied to him because it violates his Sixth Amendment right to trial by jury as articulated by the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its related cases. He further contends that the evidence presented at his revocation hearing was insufficient to convict him for violating the conditions of his supervised release. Because we reject Carlton's constitutional challenge, but conclude the evidence at his hearing was legally insufficient with respect to one of the findings of violation, we affirm in part, vacate in part, and remand for resentencing.

BACKGROUND

For his role in several armed bank robberies and in drug trafficking a federal district court in 1998 sentenced Carlton to 150 months imprisonment, to be followed by five years supervised release, and ordered him to pay restitution in the amount of $114,806 and a special assessment of $800. Four years into his prison term, the district court amended its judgment and reduced Carlton's sentence to 78 months incarceration to be followed by five years supervised release. After completing this reduced term of imprisonment, defendant was released from custody on July 24, 2003 and began his five years of supervised release. Less than a year later Carlton committed another armed bank robbery. He and an accomplice, wearing hoods, masks, and gloves and brandishing a handgun, entered a Wachovia Bank in Ardsley, New York and robbed it on May 28, 2004. After seizing $42,000 in cash, the two robbers fled the scene of the crime in a gold-colored Mitsubishi.

A few days later federal authorities were approached by Keith Shaw, a self-described "street guy" and friend of Carlton's. Shaw, an individual with a lengthy criminal history, had been taken into custody by the White Plains, New York, Police Department as a result of an unrelated criminal charge. Hoping to gain the favor of local authorities, Shaw volunteered information regarding Carlton's involvement in the Ardsley robbery. The White Plains police promptly relayed this information to the Federal Bureau of Investigation (FBI). FBI Special Agent Michael Harkins then met with Shaw, who told him that Carlton had committed the Ardsley robbery and was planning a similar crime in the near future.

The government enlisted Shaw's aid in conducting a full investigation into Carlton's involvement in the Ardsley robbery. In addition to placing him in a hotel temporarily for his safety, the government offered Shaw free drug counseling (which he did not accept) and gave him money for clothing, food, and permanent relocation expenses. The FBI did not offer Shaw assistance with the local charges pending against him, other than to inform the White Plains police of his cooperation in the investigation. Shaw for his part agreed to meet with Carlton while under government surveillance and while wearing a recording device. This effort resulted in two recorded conversations between Carlton and Shaw, one by telephone and the other in person. Before the investigation could develop further, the government, fearing the imminent commission of another bank robbery, filed a criminal complaint against Carlton seeking a warrant for his arrest. Defendant was subsequently apprehended and detained on June 4, 2004.

Rather than pursue criminal charges against Carlton for the Wachovia robbery, the government decided to prosecute him pursuant to 18 U.S.C. § 3583(e) for violating the conditions of his supervised release. The charging petition, which recommended revocation of supervised release, specified three violations: Specification 1 alleged commission of the Ardsley armed bank robbery on May 28, 2004 in violation of 18 U.S.C. § 2113; Specification 2 alleged conspiracy to commit a second bank robbery in violation of 18 U.S.C. § 371; and Specification 3 alleged conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846. As permitted by the supervised release statute, a revocation hearing without a jury was held on July 21, 2004.

At the hearing the government relied primarily on Shaw's testimony. He testified that Carlton had approached him a week or two prior to the Ardsley bank robbery requesting his assistance, and that the night before its commission, after advising Shaw that the plan was "set," told him that he would be picked up the following morning to commit the crime. Shaw further testified that early in the morning of the robbery, May 28, 2004, Carlton left him a voicemail message asking for his whereabouts, to which Shaw did not respond because he had no intention of becoming involved in the crime. Shaw testified that he saw Carlton on the street at 10:30 a.m. later that morning, and that Carlton confirmed then that he and three accomplices had just robbed the Wachovia Bank.

Other evidence linking Carlton to the Ardsley robbery corroborated Shaw's testimony. This included a local police officer's testimony stating that he observed Carlton get out of a gold-colored Mitsubishi similar to the one used to flee the crime scene; security photographs of Carlton's female acquaintance wearing a wig inside the Wachovia Bank a week prior to the robbery; and Carlton's checking into an expensive hotel for five nights the night of the Ardsley robbery for the alleged purpose of laying low. The most damaging corroborative evidence was no doubt the recorded conversations between Shaw and Carlton, which were taped while Shaw was cooperating with the FBI and contained statements by Carlton explicitly acknowledging his participation in the Ardsley crime.

The recorded conversations also provided the basis for the government's evidence with respect to the second specification, the conspiracy to commit an additional bank robbery. The prosecutor said in his closing statement at the district court

Turning to [Specification 2], which is the planned bank robbery. Again, from Mr. Carlton's own mouth, we have him discussing a planned bank robbery, which is, in essence—I think the best evidence comes from the [recorded] conversation about the Wachovia Bank robbery, where Mr. Carlton says, "$13,000," referring to Wachovia. He then says, "We get more than that `cause there's just two of us," meaning when we do the next robbery, there's only going to be two of us.

Shaw corroborated this evidence by testifying that Carlton had approached him a few days after the Ardsley robbery to discuss "do[ing] another bank job."

Q. And you say that, a few days later on, he asked you about doing another bank robbery or doing a bank robbery with him?

A. Yes.

Q. All right. Did anything come of that?

A. No.

Q. Did he give you any details about what he wanted to do?

A. No, he didn't.

Q. Did you agree with him to do a bank robbery?

A. No. I told him I would think about it.

Q. Were you working with the government by that point?

A. Yes.

The government presented virtually no other evidence regarding the commission of the conspiracy to commit another bank robbery and specifically told the district court that Carlton's statement regarding this specification meant that "when we do the next robbery, there's only going to be two of us." It is not entirely clear from the record whether Carlton spoke with Shaw about committing a second bank robbery before or after Shaw contacted the government or at both times; but the government at oral argument conceded that Shaw was not a co-conspirator, making determination of this fact unnecessary for disposition of this appeal.

After presentation of the evidence and closing statements, the district court found Carlton guilty on Specifications 1 (commission of Ardsley robbery) and 2 (conspiracy to commit a second robbery), but not 3 (the drug charge), and sentenced him to 35 months imprisonment, to be followed by 25 months supervised release. Finding Shaw's testimony to be credible and corroborated by other evidence, the district court ruled that the government had proved by a preponderance of the evidence that Carlton had committed the Ardsley bank robbery and was guilty of a conspiracy to commit another bank robbery.

Carlton, who is currently serving his sentence, filed a timely notice of appeal challenging the district court's judgment with respect to the first two specifications. On August 3, 2005 he was separately indicted by a federal grand jury for the Ardsley bank robbery, for which if convicted he could be sentenced to another term of imprisonment and supervised release. From the judgment revoking his current term of supervised release, Carlton appeals.

DISCUSSION

A. Constitutionality of 18 U.S.C. § 3583(e)(3)

Carlton was sentenced pursuant to 18 U.S.C. § 3583(e)(3), which provides that a court, after consideration of the relevant factors set forth in 18 U.S.C. § 3553, may ...