United States v. Bryant

• Decision Date: 24 September 2020
• Docket Number: August Term 2019,No. 18-3569,18-3569
• Citation: 976 F.3d 165
• Parties: UNITED STATES of America, Appellee, v. Robbull BRYANT, Rich, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

976 F.3d 165

UNITED STATES of America, Appellee,

v.Robbull BRYANT, Rich, Defendant-Appellant.

No. 18-3569

August Term 2019

United States Court of Appeals, Second Circuit.

Submitted: April 13, 2020

Decided: September 24, 2020

Michelle Anderson Barth, The Law Office of Michelle Anderson Barth, Burlington, VT, for Defendant-Appellant.

Nathanael T. Burris (Gregory L. Waples, on the brief), Assistant United States Attorneys, for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, VT, for Appellee.

Before: Livingston, Chief Judge, Parker and Bianco, Circuit Judges.

Joseph F. Bianco, Circuit Judge:

Defendant-Appellant Robbull Bryant appeals from a judgment of conviction entered on November 20, 2018, in the United States District Court for the District of Vermont (Sessions III, J. ), following his guilty plea to one count of conspiring to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(b)(1)(B), and one count of possession of a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g), 924(a)(2). The district court sentenced Bryant to 90 months’ imprisonment to be followed by a four-year term of supervised release.

On appeal, Bryant challenges the merits of his felon in possession of a firearm conviction in light of the Supreme Court's decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). Bryant further argues that his 90-month term of imprisonment is procedurally and substantively unreasonable, and challenges the imposition of two supervised release conditions—namely, the notification-of-risk condition (the "risk" condition) and the condition restricting his communications with known felons (the "communication" condition).

As explained below, we hold that Bryant's guilty plea to possessing a firearm as a convicted felon remains valid, even in light of Rehaif , because it is plain that Bryant knew of his unlawful status when he possessed the firearm and there is no reasonable probability that he would have not pled guilty had he been properly informed that such knowledge was a requirement for conviction under 18 U.S.C. § 922(g). We also conclude that there was no error at sentencing in the district court's consideration of potential sentencing disparities among similarly situated defendants, and that Bryant's 90-month sentence was not procedurally or substantively unreasonable. Finally, we hold that the two disputed conditions of supervised release imposed on Bryant are not unconstitutionally vague, but we will remand (1) the risk condition so that the district court can formally incorporate its oral amendment of that condition into the written judgment of conviction, and (2) the communication condition so that the district court may provide the necessary justification for restricting Bryant's communications with his brother, or exempt such communications from that condition.

Accordingly, we AFFIRM Bryant's conviction and sentence, except we VACATE the judgment as to the two challenged conditions of supervised release, and REMAND in that respect only for further proceedings consistent with this opinion.

I. BACKGROUND

A. Facts¹

In late 2014, law enforcement began investigating a drug-trafficking operation, involving the distribution of heroin and cocaine base, in the area of Brattleboro, Vermont. Between July 2015 and August 2016, law enforcement conducted 11 controlled purchases of narcotics (heroin, cocaine base, and cocaine) from members of the drug-trafficking business, which were surveilled by audio and visual means. In three of those transactions, Bryant was the individual who personally sold the cocaine base or cocaine. In the spring of 2016, law enforcement discovered that the base of operations was moved from Brattleboro to a residence in Putney, Vermont (the "Putney Residence"). A co-conspirator and a customer of the drug business separately identified Bryant as a leader of the drug organization.

The drug-trafficking operation also involved the use of firearms and violence. For example, on August 26, 2016, Bryant and an associate participated in a shootout outside the Putney Residence. This gunfight was precipitated by a dispute over $30 in narcotics and, although Bryant asserted that he was not the aggressor during the incident, Bryant discharged rounds in an exchange of gunfire with one of the individuals with whom the dispute arose. Bryant was stopped in a car in the vicinity of the Putney Residence shortly after the incident and was taken into custody. That same day, police searched the Putney Residence and seized marijuana and drug paraphernalia (including a crack pipe and scales), as well as a semi-automatic Ruger .40 caliber firearm. The police also recovered .40 caliber shell casings in the driveway and on the front porch of the Putney Residence. Several witnesses also reported observing Bryant carry various firearms in his possession on other occasions, including instances in which he waved or flashed a firearm in front of other individuals.

On August 17, 2016, a criminal complaint was filed charging Bryant with distribution of cocaine base. Subsequently, on September 30, 2016, a federal grand jury returned a seventeen-count superseding indictment. In that indictment, Bryant was charged with one count of conspiring to distribute heroin, cocaine, and 28 grams or more of cocaine base; two counts of being a felon in possession of a firearm; one count of possessing a firearm in furtherance of a drug trafficking crime; and four counts of distribution of cocaine base. The felony that formed the basis of his felon-in-possession charge was his 2007 conviction in Virginia state court for grand larceny. Bryant was sentenced to three years in prison for that conviction, but the sentence was suspended in lieu of 10 years of probation, so he spent no time in jail.² Five of Bryant's co-conspirators were also named in the superseding indictment.

B. Bryant's Guilty Plea and Sentencing

On June 7, 2018, Bryant pled guilty, pursuant to a plea agreement with the government, to a two-count superseding information charging him with the following: (1) one count of conspiring to distribute 28 grams or more of cocaine base from the fall of 2014 through August 26, 2016, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) ; and (2) one count of being a felon in possession of a firearm in August 2016, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In the plea agreement, the parties agreed, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), that Bryant should receive a term of imprisonment of no greater than ten years.

Sentencing took place on November 19, 2018. With respect to the calculation of the United States Sentencing Guidelines range, the Probation Department determined that Bryant had a total offense level of 33 and a criminal history category III, which resulted in an advisory Guidelines range of 168 to 210 months’ imprisonment.

At sentencing, the parties stipulated to the total offense level of 33, consisting of the following: a base offense level of 28 for a conspiracy involving at least 196 grams of cocaine base, U.S.S.G. § 2D1.1(c)(6) ; a two-level firearm enhancement, id . § 2D1.1(b)(1) ; a two-level enhancement for the use of violence, id. § 2D1.1(b)(2) ; a two-level enhancement for maintaining a drug-distribution premises, id. § 2D1.1(b)(12) ; a two-level enhancement for Bryant's role in the offense, id . § 3B1.1(c); and a three-level reduction for acceptance of responsibility, id . § 3E1.1. With respect to the criminal history calculation, Bryant argued that he should only be a criminal history category II because he should not receive a two-point increase for committing the crime while under supervision for a previous petit larceny conviction and, even if the two points were properly counted, he is entitled to a downward departure in his criminal history category because it overrepresented the seriousness of such history.

As to the ultimate sentence, Bryant argued that the district court should impose five years’ imprisonment, which was the mandatory minimum sentence based upon the narcotics conspiracy count, while the government argued for a sentence of ten years’ imprisonment. In support of his argument for a variance from the Guidelines range, Bryant noted, among other things, that the district court had already sentenced two of his co-defendants: Alfred Spellman, who had received a time-served sentence of approximately two years’ imprisonment; and Earl Brown, who had received a sentence of 48 months’ imprisonment. Bryant noted that Spellman was also involved in the August 26th shooting incident, including discharging his weapon with Bryant. Thus, Bryant contended that these co-defendants were "of equal standing in the offense" and, to avoid unwarranted disparity, he should receive a sentence of no more than five years’ imprisonment. App'x at 104.

On this issue, the government responded that Bryant's extensive involvement with firearms and leadership role distinguished him from other members of the conspiracy. Moreover, with respect to the particular codefendants referenced by Bryant, the government noted that it was unable to prove any controlled purchases from Spellman, and that Brown was not Bryant's primary supplier. Therefore, the government argued that these distinctions would further explain any disparity in their sentencings as compared to the ten-year sentence being requested by the government.

The district court preliminarily determined that the advisory Guidelines range was 168 to 210 months’ imprisonment, based upon a total offense level of 33 and a criminal history category III, and also noted that it would consider Bryant's argument regarding the criminal history category as part of his overall request for a non-Guidelines sentence. Within that framework, the district court granted Bryant's request to have his criminal history category lowered to category II after concluding that the lower category was ...