United States v. Pristell, 102219 FED2, 17-4121-cr
|Opinion Judge:||Chin, Circuit Judge.|
|Party Name:||United States of America, Appellee, v. Dennis Pristell, aka D, aka DP, David Young, aka Kareem, aka Reem, William Parker, aka Shah, Michael Singletary, Defendants, Lamont Moran, aka L, aka L-Sparks, aka Gudda, Defendant-Appellant.|
|Attorney:||Matthew Jacobs, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee. Joyce C. London, Joyce C. London, P.C., New York, New York; Meg...|
|Judge Panel:||Before: Calabresi, Cabranes, and Chin, Circuit Judges. Guido Calabresi, Circuit Judge, concurring|
|Case Date:||October 22, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Submitted: January 28, 2019
On Appeal from the United States District Court for the Eastern District of New York.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.) convicting defendant-appellant, upon his guilty plea, of conspiring to distribute and possess with intent to distribute heroin, and sentencing him principally to 84 months' imprisonment. Defendant-appellant contends that the district court erred by applying two sentencing enhancements under the United States Sentencing Guidelines: (1) three levels for role in the offense and (2) two levels for committing an offense as part of criminal conduct engaged in as a livelihood.
Matthew Jacobs, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.
Joyce C. London, Joyce C. London, P.C., New York, New York; Megan Wolfe Benett, Kreindler & Kreindler LLP, New York, New York, for Defendant-Appellant.
Before: Calabresi, Cabranes, and Chin, Circuit Judges.
Chin, Circuit Judge.
Defendant-appellant Lamont Moran appeals from a judgment entered December 21, 2017, following his guilty plea, convicting him of conspiring to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He was sentenced principally to 84 months' imprisonment. On appeal, Moran challenges his sentence solely on procedural grounds, arguing that the district court erroneously applied a three-level enhancement for his role as a manager or supervisor of criminal activity that involved five or more participants or was otherwise extensive, pursuant to U.S.S.G. § 3B.1.1(b), and a two-level enhancement for the commission of an offense as part of a pattern of criminal conduct engaged in as a livelihood, pursuant to U.S.S.G. § 2D1.1(b)(16)(E).1 For the reasons set forth below, the judgment of the district court is affirmed.
A. The Facts
The facts, as set forth in the presentence report (the "PSR") and adopted by the district court, may be summarized as follows:
In early 2016, the Federal Bureau of Investigation (the "FBI") and the New York City Police Department began an investigation into gang-related crimes and heroin trafficking in Jamaica, Queens, principally focused on members of the gang "Get it in Stacks" ("GI$").
During the course of the investigation, the FBI intercepted communications relating to heroin trafficking from two cellphones associated with Moran. Between March 2016 and August 2016, law enforcement conducted controlled purchases of heroin from Moran on over a dozen occasions, and on at least one occasion Moran also sold the Confidential Source ("CS") fentanyl. The purchased packets were often labeled with Moran's brand names. The NYPD obtained additional evidence of Moran's criminal conduct in February 2016 from a cellphone seized during the arrest of GI$ member Joclyn Bridges, which revealed conversations between Moran and Bridges related to heroin trafficking. Finally, photographs found on Moran's phones showed him holding a handgun and large amounts of cash.
The court-authorized intercepts revealed that a number of persons participated in Moran's drug-trafficking operation. Moran supervised co-defendants Dennis Pristell and David Young, who sold heroin in Queens, and William Parker, who obtained heroin from Moran several times a week to sell on Long Island. Parker in turn supplied co-defendant Michael Singletary, and worked with him to sell their supply. Moran also directed unindicted co-conspirator Bridges to monitor Young's drug sales. Between March 2016 and September 2016, Moran, Pristell, Young and Parker sold heroin almost every day.
Intercepted conversations between Moran and Pristell and Moran and Young demonstrated that Moran provided them heroin to sell and monitored their sales activity. For example, Moran discussed heroin trafficking with Young in an intercepted conversation on July 13, 2016: YOUNG: Yo, L . . . I got somebody that's willing to do the foot running, and I got my own spot right now. . . . I want to get back on board. I don't ever want to stop making money. I felt that what we had was damn good.
MORAN: . . . All you got to do is when your customers call you, you call me and I will send my people to them to see them and I will give you something for doing that.
App'x at 62.
There is evidence that Moran and Young were in regular contact, as pen registers revealed hundreds of communications over less than two months between Moran and a telephone number a confidential informant used to contact Young.
Moran also regularly discussed heroin trafficking with Pristell, communicating with him more than 100 times during a two-month period. For example, on June 27, 2016, Pristell informed Moran that he had flushed some quantity of heroin down the toilet to avoid arrest, and Moran responded "Oh, ok, you got to eat that shit." App'x at 55. Less than a month later, Moran chastised Pristell for turning off his cellphone, thereby missing a number of calls: PRISTELL: My phone was off. . . .
MORAN: Why in the hell would you do that? The money supposed to wake you up.
PRISTELL: I know what happened. I didn't charge my damn phone.
MORAN: Come on D what kind of business are you running man?
App'x at 58-59.
On September 8, 2016, Moran was arrested on his way to meet a CS for a controlled delivery. During a search incident to Moran's arrest, FBI agents seized packets of heroin on Moran's person and in his car, as well as a cellphone, which revealed photos of him with GI$ gang members and counting money. Moran told the officers transporting him to the courthouse that he sold heroin to feed his family, saying "I don't view [heroin] as drugs, I view it as money." App'x at 175. Though he admitted to selling heroin, he noted that he was small time and not a kingpin.
B. Proceedings Below
On April 24, 2017, Moran pleaded guilty to Count One of a three-count superseding indictment, which charged conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(i), and 846. The PSR indicated that Moran was accountable for at least 700 grams of heroin and 4.37 grams of fentanyl, which resulted in a base offense level of 28. The PSR named Pristell, Young, Parker, and Singletary as participants in Moran's criminal activity. The PSR recommended several offense level enhancements, including a two-level increase because the offense was "part of a pattern of criminal conduct engaged in as a livelihood," a two-level increase for possession of a firearm, and a three-level increase for Moran's role as a manager or supervisor. After a three-level reduction for acceptance of responsibility, Moran's total offense level was 32. Together with a criminal history category of I, the resulting Guidelines range was 121 to 151 months' imprisonment. The PSR further noted that Moran was employed as a part-time counselor, mentor, and activity specialist at Jacob Riis Settlement House between November 2011 and April 2016, and had started a new part-time position as a counselor at St. John's Residence for Boys the day before his September 2016 arrest.
Prior to the sentencing hearing, Moran objected to the PSR, challenging the managerial/supervisory role and criminal livelihood enhancements. As to the aggravating role adjustment, Moran argued that the individuals described as participants were merely customers who purchased small quantities partly for their own use and partly to sell to fund their next purchase. As to the criminal livelihood enhancement, Moran argued that his conduct did not meet the requirements for the enhancement and that his drug activities could not be considered his livelihood.  The probation office affirmed the appropriateness of the managerial/supervisory role adjustment, but agreed with Moran that the criminal livelihood adjustment was inapplicable. As a result, the probation department issued an addendum to the PSR revising Moran's total offense level to 30, and recommending a Guidelines range of 97 to 121 months'...
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