U.S. v. Carr

• Decision Date: 19 February 2009
• Docket Number: Docket No. 06-5490-cr.
• Parties: UNITED STATES of America, Appellee, v. Sean CARR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

557 F.3d 93

UNITED STATES of America, Appellee, v. Sean CARR, Defendant-Appellant.

Docket No. 06-5490-cr.

United States Court of Appeals, Second Circuit.

Argued: October 22, 2008.

Final Briefs Submitted October 29, 2008.

Decided: February 19, 2009.

Jessica Roth, Assistant United States Attorney, New York, NY, (Michael J. Garcia, United States Attorney for the Southern District of New York, Helen V. Cantwell, Celeste L. Koeleveld, Assistant United States Attorneys, New York, NY, on the brief), for Appellee.

Tina Schneider, Portland, ME, for Defendant-Appellant.

Before: KEARSE, SACK, and KATZMANN, Circuit Judges.

KEARSE, Circuit Judge:

This case returns to us on the appeal of defendant Sean Carr from an amended judgment of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, resentencing him after a decision of this Court, United States v. Carr, 424 F.3d 213 (2d Cir.2005) ("Carr I"), cert, denied, 546 U.S. 1221, 126 S.Ct. 1447, 164 L.Ed.2d 145 (2006), which upheld Carr's convictions and the district court's various calculations under the 2002 version of the Sentencing Guidelines ("Guidelines") and remanded to the district court pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) ("Crosby"), cert, denied, 549 U.S. 915, 127 S.Ct. 260, 166 L.Ed.2d 202 (2006), for consideration of resentencing in light of the ruling in United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that application of the Guidelines is not mandatory. Carr was convicted, following a jury trial, on one count of participating in a racketeering enterprise, in violation of 18 U.S.C. § 1962(c) (Count 1); one count of racketeering conspiracy, in violation of id. § 1962(d) (Count 2); one count of conspiracy to distribute cocaine base (or "crack"), in violation of 21 U.S.C. § 846 (Count 3); one count of possession with intent to distribute cocaine base, in violation of id. §§ 812, 841(a)(1), and 841(b)(1)(C) (Count 5); and one count of using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 4). Carr was originally sentenced principally to life imprisonment. On the Crosby remand, the court resentenced Carr principally to 40 years' imprisonment, comprising two 35-year terms for Counts 1 and 2 (the racketeering (or "RICO") counts) to be served concurrently; two 20-year terms for Counts 3 and 5 (the narcotics counts), to be served concurrently with each other and with the terms imposed for the racketeering counts; and a five-year term for Count 4, the firearm count, to be served consecutively to the 35-year terms imposed for the racketeering counts; his 40-year total prison term was to be followed by a five-year period of supervised release.

On this appeal, Carr asks this Court principally (1) to revisit the Carr I decisions that affirmed his conviction and upheld the district court's Guidelines calculations, arguing that the law-of-the-case doctrine should not be applied where the district court imposes a new sentence following a Crosby remand, and (2) to vacate his sentence on the ground that a 40-year term of imprisonment is unreasonable. In addition, Carr urges us to remand for further resentencing in light of Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). For the reasons that follow, we reject all of Carr's arguments in support of this appeal and affirm his new sentence; we remand, however, for correction of the amended judgment to reflect accurately the sentence imposed.

I. BACKGROUND

The present prosecution centered on the operation of a street gang called Sex Money and Murder ("SMM") that sold narcotics in the Soundview section of the Bronx, New York. The trial evidence leading to Carr's convictions on the five counts listed above included videotapes, an audiotape, and testimony from former SMM members who were cooperating with the government. The evidence was summarized in Carr I, 424 F.3d at 217-18, familiarity with which is assumed.

A. The Trial and Carr's First Appeal

Briefly, the evidence at trial showed that Carr was a member of the SMM narcotics distribution enterprise. Carr himself, though denying that he was a member of SMM, testified that he had been a drug dealer nearly all of his adult life and had sold crack all over the Soundview area. As to his membership in SMM, the government introduced an audiotape of an SMM meeting at which Carr was present, and former SMM members "testified as to Carr's participation in crack sales and robberies, acts of intimidation, and other acts of violence," Carr I, 424 F.3d at 217.

With respect to the RICO counts, three predicate acts of racketeering activity were alleged: (1) the 1994 murder of one Tony Morton, (2) a 1996 armed robbery to which Carr had pleaded guilty in state court, and (3) narcotics conspiracy. The evidence as to the murder was that Morton, who was unarmed, had been dragged from his automobile by armed SMM members other than Carr; that while Morton was being physically restrained, Carr went up to Morton and, from inches away, shot him in the neck; and that while Morton then lay on the ground, Carr shot him in the head. (See Trial Transcript 150, 159, 282-83, 286, 374-75.) Morton's wounds were fatal.

The jury found that Carr had committed all three of the alleged acts of racketeering activity, and it found him guilty on all of the counts against him.

The Guidelines applicable to racketeering offenses provided that the base offense level should be the greater of 19 or "the offense level applicable to the underlying racketeering activity," Guidelines § 2E1.1, and that "[i]f the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used," id. Application Note 2. The district court concluded that Carr's base offense level was 43 as prescribed by Guidelines § 2A1.1 ("First Degree Murder") because the murder of Morton, a racketeering act that the jury found proven, was conduct that the court concluded was most analogous to the federal offense of first-degree murder, see 18 U.S.C. § 1111(a) ("Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by . . . any . . . kind of willful, deliberate, malicious, and premeditated killing ... is murder in the first degree."). For an offense level of 43, the Guidelines recommended life imprisonment. The district court—stating that "[i]f the murder were not in the picture the sentence would be somewhere between 20 and 30 years"— concluded,

based on the jury's verdict and their specific findings, it is my duty to impose a sentence of life imprisonment on Count One and on Count Two.

(Transcript of Original Sentencing, January 14, 2004 ("Original S.Tr."), at 16, 17.) Accordingly, Carr was sentenced principally to life imprisonment for the racketeering counts, with shorter sentences imposed for the narcotics counts to be served concurrently with the sentences on the racketeering counts, and a five-year term for Count 4, the firearm count, to be served consecutively to the life imprisonment terms imposed for the racketeering counts, see 18 U.S.C. § 924(c)(1)(D)(ii) ("Notwithstanding any other provision of law ... no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person....").

Carr appealed, challenging both his conviction and his sentence. As to his conviction, Carr contended principally that certain of the trial court's instructions to the jury were erroneous and that the government, in summation, had improperly vouched for the credibility of its witnesses. As to his sentence, Carr contended, inter alia, that because the indictment alleged that the killing of Morton constituted the state-law crime of second-degree murder, the district court should not have calculated Carr's offense level using Guidelines § 2A1.1, which applies to the federal crime of first-degree murder and prescribed an offense level of 43, but should instead have used Guidelines § 2A1.2, which governs the federal crime of second-degree murder and prescribed an offense level of 33. He also challenged the district court's Guidelines enhancements based on drug quantity, brandishing of a firearm, and criminal history.

While Carr's appeal was pending, the Supreme Court decided Booker, holding that the Guidelines are advisory rather than mandatory. Accordingly, we concluded that a remand pursuant to our post-Booker decision in Crosby was required in order to permit the district court to determine whether it would have imposed a nontrivially different sentence on Carr if it had known that the Guidelines are merely advisory. Prior to remanding, however, we considered and rejected Carr's challenges to his conviction, see Carr I, 424 F.3d at 218-30, and his challenges to the district court's Guidelines calculations, see id. at 230-31. In rejecting Carr's "conten[tion] that the district court erred in applying the base offense level for the federal offense of first degree murder," id., we stated that

as we made clear in considering a virtually identical challenge in United States v. Minicone, 960 F.2d 1099 (2d Cir.), cert. denied, 503 U.S. 950, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992), "the district court did not err in concluding that the most analogous federal offense [to the New York offense of second degree murder] was first degree murder under [18 U.S.C] § 1111," id. at 1110. "[T]he absence of reference to premeditation or malice aforethought [in the state law] does not mean that federal first degree murder is not the most analogous federal offense." United States v. Diaz, 176 F.3d 52, 123 (2d Cir.), cert. denied sub nom. Rivera v. United States, 528 U.S. 875, 120 S.Ct. 181, 145 L.Ed.2d 153 (1999). We therefore...