08-0837 | Omnilex

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(Argued: April 22, 2009
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UNITED STATES OF AMERICA,

# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2008

Decided: January 5, 2010)

Docket No. 08-0837-cr

Appellee,

\- V. -
ADRIAN PAYNE, also known as "A, "

Defendant-Appellant.

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

Appeal from a judgment of the United States District Court
for the Eastern District of New York, John Gleeson, Judge,
convicting defendant of racketeering offenses, 18 U.S.C.
§§ 1959 (a) (1), 1962 (c), and 1962 (d) ; and narcotics and firearms
offenses, 21 U.S.C. §§ 841(a) (1) and 846, and 18 U.S.C.
§ 924 (c) (1) (A) .

Affirmed.

ALI KAZEMI, Assistant United States Attorney,
Brooklyn, New York (Benton J. Campbell,
United States Attorney for the Eastern
District of New York, David C. James,
Assistant United States Attorney, Brooklyn,
New York, on the brief) , for Appellee.

DONNA R. NEWMAN, New York, New York (Buttermore
Newman Delanney & Foltz, New York, New York
on the brief) , for Defendant-Appellant.

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KEARSE, Circuit Judge :

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Defendant Adrian Payne appeals from a judgment entered in
the United States District Court for the Eastern District of New
York following a jury trial before John Gleeson, Judge, convicting
him of violating substantive and conspiracy provisions of the
Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. §§ 1962 (c) and (d); two counts of murder in aid of
racketeering, in violation of 18 U.S.C. § 1959 (a) (1) ; conspiracy
to distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. §§ 846 and
841 (b) (1) (A) (ii) (II); distributing and possessing with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841 (a) (1) and 841 (b) (1) (A) (ii) (II); and use of a firearm during
and in relation to the commission of a drug trafficking offense,
in violation of 18 U.S.C. § 924 (c) (1) (A) . Payne was sentenced
principally to six terms of life imprisonment on the
racketeering, murder, and narcotics counts, to be followed by a
10-year term of imprisonment on the firearms count. On appeal,
he contends principally (1) that the murder-in-aid-of-racketeering
counts were barred by the statute of limitations, (2) that there
was insufficient evidence to support his convictions, and (3) that
the court erred in sentencing him to a 10-year consecutive term of

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imprisonment on the firearms count and made other sentencing
errors affecting all counts. Finding no merit in Payne's

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contentions, we affirm.

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The present prosecution focused on narcotics distribution
and various acts of violence in the East New York section of
Brooklyn from 1985 through January 2003. The superseding
indictment ("indictment") on which Payne and his codefendant
Tyrone ("T-Black" or "Black") Hunter were tried alleged that
during that period a number of associated individuals participated
in and conducted the affairs of a RICO enterprise by, inter alia,
distributing, and conspiring to distribute, cocaine and cocaine

base ("crack"), and committing robberies and murders in
furtherance of their drug distribution operations. The

government's evidence at trial consisted principally of testimony
from law enforcement officers and cooperating witnesses, including
former enterprise leaders John "Hatchet" Hatcher and Charles "Boo"
Thomas. The evidence, viewed in the light most favorable to the
government, revealed the following.

A. The Hatcher-Thomas-Hunter "Family" Enterprise
Hatcher and Thomas, along with others to whom they
referred as "family" or "street family" (see, e.g., Trial
Transcript ("Tr. ") 548, 1172), began selling cocaine in East New
York in the mid-1980s, initially selling powder cocaine and then
switching to crack cocaine in 1987 because it was more profitable.
In 1985, Thomas, then 15 years of age, introduced Hunter to
24 Hatcher, whom Thomas "always . . . considered a boss" (Tr. 1499) .

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Hatcher invited Hunter to "join my family, " which meant " [s] hoot,
sell drugs, whatever's necessary." (Id. at 556.) Hunter at first
worked for Hatcher as a lookout, protecting the workers who were
selling drugs; he was soon made manager of drug-selling spots.
The income from crack sales at one of those spots totaled as much
as $20, 000 to $25, 000 a day; for managing that spot, Hatcher paid
Hunter $3,000 to $8,000 a week.

Payne, often referred to by the cooperating witnesses as
"A, " joined the family as Thomas's lieutenant in about 1995. (See
id. at 1175, 1612.) His responsibilities included putting the
cocaine provided by Thomas into retail sale packages, getting the
cocaine to the workers and keeping them supplied, and collecting
the proceeds of the sales. (See id. at 1318-20.) On occasion,
when Thomas had not bought the necessary cocaine, he would have
Payne purchase it. (See id. at 1319.) As weekly compensation for
his work as lieutenant, Thomas allowed Payne to keep the profits
from one day's drug sales, usually about $1,200. (See id. at
1320-21.)

Thomas fired Payne as lieutenant after about a year, but
Payne remained a member of the family and became, inter alia, an
enforcer. For example, as described in Part I.A.1. below, in
1997, complying with an "order" from Thomas (Tr. 704), Payne shot
and killed a worker who had been stealing from Thomas and
sleeping with Thomas's girlfriend. In 1998, Hunter introduced
Payne to Hatcher (who had been in prison since 1991) as "my man, "

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"a shooter" (id. at 703), a " [n]ew shooter in the family" (id. at
704).

Beginning in 2000, Payne also operated as a crack cocaine
dealer, selling his own supplies, at a family spot. (See id. at
740-43.) In addition, about once a month from late 2000 until May
2002, Payne sold bulk quantities -- approximately 125 grams -- of
crack to Hatcher. (See id. at 748, 752-53.)

Thomas testified that family members "made money together"
and "hustled together, " meaning that they would " [s]ell drugs
together" (Tr. 1172), although the family structure was not
particularly hierarchical. Thomas identified more than a dozen
family members (see id. at 1175-76) -- all of whom were allowed to
operate in family spots (see, e.q., id. at 1177) -- and as a general
matter, each member who sold drugs retained the profits from his
own sales. Describing this as "eat [ing] what you kill" (id. at
1180), Thomas testified that the family operated in this manner
for ease of administration:

There's too many of us to all try to put all the
money in one pot.

Q. Were you still a family at that point, even
though you were eating what you were killing?

A. Yes.

(Id. at 1641-42.) Although they did not pool their profits,
members of the family "looked out for each other, " meaning that
"if one of us was broke, another one would give out some money"
(id. at 1172) .

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In addition, the family supported its members who were
arrested or in prison. Hunter and Hatcher, who spent various
parts of the 1985-2003 period in prison, were prime examples.
When Hunter was arrested in 1989, Thomas raised "money to bail him
out" because "that's what we do for each other." (Tr. 1263.)
While Hunter was thereafter imprisoned, Hatcher continued to
provide him with proceeds from drug sales because Hunter "was part
of my family, so he's gonna get money regardless, whether he was
in jail or out of jail. " (Id. at 630-31.) When Hatcher himself
went to prison in 1991, Hunter bought his drug spots for $70,000
and made additional payments totaling approximately $200,000 to
Hatcher's wife and father while Hatcher was serving his sentence.
(See id. at 682.) When Hunter was imprisoned again in 1994-1996,
Thomas provided Hunter's wife and brother with money for Hunter
because family "take [s] care of each other" (id. at 1312-13) .
When Hunter was released from prison in 1996, Thomas and Payne
took him shopping and bought him a motorcycle (see id. at 1326) ;
and some two months later, Thomas made Hunter a partner in his
drug operation because Hunter was "part of the family and we
always said [if] you don't have money, come back to the block"
(id. at 1327) .

When Thomas and Hunter operated as partners, the center of
their operations was the corner of Georgia and Hegeman Avenues
and an adjacent block along Hegeman ( "Georgia/Hegeman") . Pooling
their money for bulk purchasing of crack cocaine, one or the other
would make a purchase from a supplier, and each would divide half

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of the amount purchased into salable packages. Thomas and Hunter
then alternated sale days, each selling his half of the crack
(through the workers they shared), and retaining the proceeds of
the sales made on his own day. (See, e.g., id. at 1327, 1388.)

In 1999, Thomas and Hunter had a falling out, and their
partnership ended. Hatcher became Thomas's new partner, and as
partners they operated in the same way that Thomas and Hunter had.
Thomas and Hatcher alternated days selling crack at
Georgia/Hegeman, sharing the workers who did the actual selling,
and using some of the same locations to stash their narcotics
supplies and their guns. (See Tr. 740-41, 1417-24.) Thomas
testified that he and Hatcher did not always operate as partners,
but they were always part of the family. (See id. at 1588.)

The hours during which Thomas and Hatcher sold crack at
Georgia/Hegeman were approximately 9 a.m. to 10 p.m. Beginning in
2000, Thomas, Hatcher, and Payne agreed that Payne and workers he
hired would sell at that spot at night after 10 p.m., and that
Payne would retain the proceeds of his sales. (See id. at 740,
743, 748, 1427-28, 1436.) Payne discussed his operations with
Thomas, telling Thomas that he kept his drug supplies and guns at
the homes of his girlfriends and some of his sellers (see id. at
1426-27), and that he obtained some of his supplies by robbing
other drug dealers of drugs and money (see id. at 1376, 1423) .
When Payne stole drugs, he sold half and gave the other half to
Hatcher. (See id. at 1423.)

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1\. The Murder of Eric Clemons

Payne's position as Thomas's lieutenant had lasted until
sometime in 1996 (see Tr. 1322), when Thomas's friend Eric "Sui"
Clemons returned from prison and sought to join the drug
distribution operation (see id. at 1324). Thomas was
dissatisfied with Payne's work as a lieutenant because the sellers
would run out of drugs to sell and Payne was lax about
replenishing their supplies. Accordingly, in 1996, Thomas
replaced Payne in that position with Clemons. (See id. ) Thomas
testified that Payne "stayed around, " however, available to help
if "we needed him for something" or "if something happened." (Id.
at 1325; see also id. at 1172 (members of the family "protected
each other, " meaning that if " [s]omebody d[id] something to one of
us, the rest of us would go looking for the person and do
something to him" to retaliate) ; id. at 1326-28 (Payne's services
to Thomas's drug distribution operation after Payne was fired as
Thomas's lieutenant were sufficiently valuable that Hunter, after
becoming Thomas's partner in that operation, tried
(unsuccessfully) to persuade Thomas that the partnership's profits
should be split three ways, to include Payne) . )

Payne was "upset" at being replaced as Thomas's
lieutenant (Tr. 704, 1325) ; Payne also believed that Clemons was a
"snitch" because Clemons had gone to jail at the same time as his
codefendants, and only Clemons had been released (see id. at
1325) . Hunter, who was released from prison in 1996 after Clemons

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had succeeded Payne, also believed Clemons was a snitch and
expressed that view to Thomas (see id. at 1328) .

In early 1997, Thomas realized that someone was stealing
cocaine from his operation; he at first suspected Billy Lopez, who
sold for Thomas and in whose Hegeman Avenue home Thomas stashed
cocaine until it could be individually packaged and distributed.
Thereafter, however, noticing that Clemons was spending money
lavishly, Thomas realized that it was Clemons who was stealing
from him. Also in 1997, Thomas became aware that his girlfriend
was having an affair with Clemons. To punish Clemons for showing
such disrespect for him, Thomas shot Clemons in the leg.

Thomas described these events to Payne and Hunter, who
reiterated their belief that Clemons was also a snitch. (See
Tr. 1338-39.) Thomas testified that Payne advised him that, for
disrespecting him, Clemons should be killed. Thomas agreed and
he, Hunter, and Payne promptly armed themselves and prepared to
kill Clemons. (See id. at 1340-41.)

Thomas telephoned Lisa Toney, the woman with whom Clemons
had been staying after returning from prison. Thomas told her
that Clemons had been stealing from him and was sleeping with
Thomas's girlfriend; he also disclosed that Clemons had yet
another girlfriend as well. Thomas asked Toney to let him know
when she learned Clemons's whereabouts. Toney soon informed
Thomas that Clemons would shortly be arriving at her home by taxi.
Hunter then drove Thomas and Payne to Toney's address in time to
intercept Clemons. As Clemons attempted to exit the cab, Thomas

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approached from one side and Payne approached from the other.
(See Tr. 1346-47.) Payne "lean [ed] into the car" and shot Clemons
" [a]t least six or seven" times (id. at 1347-48) ; Clemons died
from his wounds (see id. at 1358). Thomas and Payne fled in the
car driven by Hunter. (See id. at 1349.)

Hatcher was in prison at the time of the Clemons murder,
but Hunter informed him of it. When Hatcher was released in June
1998, Hunter and Payne picked him up, and Hunter introduced Payne
as the " [n]ew shooter in the family" (id. at 704). Hatcher and
Payne thereafter had several discussions about the details of the
murder. Hatcher testified that Payne said he was glad " [w] hen
'Boo' gave the order for [Clemons] to be killed, " because Payne
had never liked Clemons and had been "upset" when Thomas gave
Clemons Payne's job as lieutenant. (Id.)

## 2. The Robbery of Tacuma Kinsey

Tacuma Kinsey was the brother of one of Payne's
girlfriends. In April 1998, Kinsey's friend Michael Johnson, who
worked for an armored car company that picked up money from a
K-Mart store, devised a plan to steal the money. Johnson provided
Payne and Kinsey with company uniforms, and Payne and Kinsey went
to K-Mart posing as armored car guards. (See Tr. 1111-16.)
K-Mart employees handed Kinsey bags containing checks and
approximately $100, 000 in cash.

Returning to Johnson's house, Payne, Kinsey, and Johnson
divided the money, with Kinsey and Payne each receiving $30,000,

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and Johnson receiving the rest. (See id. at 1116-17.) Kinsey
returned home and hid most of his share in his closet.

Payne had previously described the K-Mart plan to Thomas,
but he did not disclose his participation in the eventual robbery.
When Hunter learned of the K-Mart robbery, he and Payne told
Thomas that Kinsey had robbed the K-Mart without them. (See id.
at 1385-86.) Hunter, angry that Kinsey had excluded Hunter (and,
he believed, Payne) from participation in that lucrative robbery,
decided that Kinsey himself should be robbed. Thus, at about 4
a.m the following morning, Payne and Hunter (and a third man whom
Kinsey did not recognize) broke into Kinsey's room (see id. at
1119-20) . They held Kinsey at gunpoint, tied him up, and beat
him, repeatedly hitting him in the face with a gun, and stole his
hidden stash of K-Mart money. (See id. at 1120-22.)

## 3. The Murder of Pedro Newton

Pedro Newton was a "friend" with whom Thomas had grown up.
In January 2000, Newton acquired 100 grams of heroin from "some
Colombians, " and he asked Thomas to help him find a buyer. Since
Thomas did not deal in heroin, he introduced Newton to Henry
"Boobie" Harley, who bought the heroin from Newton for $7,000.
(See Tr. 1390-95.) After making that sale to "Boobie, " Newton
told Thomas and "Boobie" that Newton would soon have an additional
600 grams of heroin and that he hoped "Boobie" would buy that too.
"Boobie, " however, decided that Newton should be robbed of the 600
grams of heroin, rather than paid for it (see id. at 1395-96), and

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he wanted Newton killed in order to avoid any retaliation for the
robbery (see id. at 1978). After "Boobie" told Thomas of his
plan, Thomas enlisted Hatcher to rob and kill Newton (see id. at
728) . Hatcher enlisted Payne, who had become Hatcher's "robbing
buddy" (id. at 729) ; and Payne and Hatcher then persuaded Thomas
that they should "rob [Newton] before 'Boobie' and them get to rob
him" (id. at 1398) .

To implement their plan, Thomas told Newton that Hatcher
would buy the 600 grams of heroin, which Newton was to bring to
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Billy Lopez's house on January 27, 2000. When Newton arrived,
Thomas escorted Newton to the basement, where Payne and Hatcher
were hiding. Payne jumped out from behind a wall, put a gun to
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Newton's bag of heroin and ran back upstairs. (See Tr. 732,
1402-03.) As Newton was lying on the floor with Payne's gun
pointed at his head, Hatcher shot Newton in the base of the
skull. (See id. at 732-33.) Thomas thereafter sold Newton's
heroin to "Boobie" for $30-$45, 000. The proceeds were split among
Thomas, Hatcher, and Payne, with Payne receiving $13,000. (See
id. at 738, 1412.)

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## B. The Present Prosecution

Thomas and Hatcher were arrested in May 2002. They
agreed to cooperate with the government and testified at the trial
of Payne and Hunter as indicated above. Payne continued to sell
drugs on Hegeman Avenue until he was arrested in January 2003.

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(See Tr. 2365, 2379-82.) In postarrest searches of the homes of
Payne's workers and one of his girlfriends, law enforcement
authorities seized, inter alia, handguns, ammunition, drug
packaging material, and other paraphernalia bearing crack residue.
The original indictment in this case was filed on March 7,
2005, contemporaneously with the issuance of an arrest warrant for
Hunter. The superseding indictment on which Payne and Hunter
were tried included charges of participation in and conduct of the
affairs of a RICO enterprise -- to wit, the Hatcher-Thomas-Hunter
drug distribution family -- through a pattern of racketeering
activity, in violation of 18 U.S.C. § 1962 (c) (count one) ; RICO
conspiracy, in violation of 18 U.S.C. § 1962 (d) (count two) ; the
murders of Clemons and Newton in aid of racketeering, in violation
of 18 U.S.C. § 1959 (a) (1) (counts four and six, respectively) ;
conspiracy to distribute, and to possess with intent to
distribute, crack and powder cocaine, in violation of 21 U.S.C.
§§ 846 and 841 (b) (1) (A) (ii) (II) (count ten) ; distribution of, and
possession with intent to distribute, crack and powder cocaine,
in violation of 21 U.S.C. §§ 841 (a) (1) and 841 (b) (1) (A) (ii) (II)

(count eleven) ; and use of a firearm during the commission of the
drug trafficking offenses charged in counts ten and eleven, in
violation of 18 U.S.C. § 924 (c) (1) (A) (count twelve). Payne was
also initially charged in other counts that were eventually
dismissed on motion pursuant to Fed. R. Crim. P. 29 -- at or after
trial -- for untimeliness, in that the offenses were completed prior
to March 7, 2000, i.e., more than five years before the March 7,

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2005 filing of the original indictment, see 18 U.S.C. § 3282 (a) ,
or for insufficiency of the evidence.

To the extent pertinent to this appeal, the jury found
Payne guilty on the seven counts listed above. In finding him
guilty of racketeering (count one) and racketeering conspiracy
(count two), the jury found that the government had proven that
Payne committed various racketeering acts ( "RAs") : distributing
and conspiring to distribute crack and powder cocaine (RAs 1B and
1A), murdering and conspiring to murder Clemons (RAs 7B and 7A) ,
robbing and conspiring to rob Kinsey (RAs 8B and 8A) , and robbing
and murdering Newton, and conspiring to do so (RAs 9B, 9C, and
9A) .

Payne was sentenced principally to six terms of life
imprisonment on the racketeering, murder, and narcotics counts,
and to a consecutive term of 10 years' imprisonment on the
firearms count.

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unpersuaded.

On this appeal, Payne challenges his convictions on two
principal grounds, arguing (A) that the § 1959 (a) (1) murder-in-
aid-of-racketeering counts should have been dismissed because the
murders of Clemons and Newton occurred in May 1997 and January
2000, respectively, prior to the five-year limitations period
provided by 18 U.S.C. § 3282 (a) ; and (B) that the evidence was
insufficient to support his conviction on any count. We are

### A. Statute of Limitations for Murder in Violation of § 1959 (a) (1)

The federal criminal code contains two general statute-of-
limitations provisions. The usual limitations period is five
years :

Except as otherwise expressly provided by law, no
person shall be prosecuted, tried, or punished for
any offense, not capital, unless the indictment is
found or the information is instituted within five
years next after such offense shall have been
committed.

18 U.S.C. § 3282 (a) (emphasis added) . However, " [a]n indictment
for any offense punishable by death may be found at any time
without limitation." Id. § 3281 (emphasis added) .

Section 1959, to the extent pertinent to this appeal,
provides that

(a) Whoever,
for the purpose of gaining
entrance to or maintaining or increasing position in
an enterprise engaged in racketeering activity,
murders . . . any individual in violation of the laws

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of any State or the United States,
shall be
punished- -

(1) for murder, by death or life
imprisonment, or a fine under this title, or
both . . . .

18 U.S.C. § 1959 (a) (1) (emphases added) . The term "enterprise" in
§ 1959 (a) , like the RICO definition of enterprise, see id.
§ 1961 (4) , "includes any . . . group of individuals associated in
fact although not a legal entity, " id. § 1959 (b) (2) .

Payne contends that the § 1959 (a) (1) murder-in-aid-of -
racketeering counts against him were "not capital" offenses,
18 U.S.C. § 3282 (a) , i.e., were not "punishable by death" within
the meaning of § 3281, because in order to permit imposition of
the death penalty in accordance with the Federal Death Penalty
Act, 18 U.S.C. § 3591 et seq., an indictment is required to

allege, and the jury is required to find, an aggravating factor
set out in § 3592 (c), see, e.g., id. § 3593 (d) (" [i]f no
aggravating factor set forth in section 3592 is found to exist,
the court shall impose a sentence other than death"), and here
there was no allegation or finding of any such aggravating factor.
In so arguing, Payne relies principally on a half-century-old
interpretation of "punishable by death, " see United States v.
Parrino, 180 F.2d 613 (2d Cir. 1950) ("Parrino"), that has been
overtaken by more recent cases.

In Parrino, this Court considered a statute that made
kidnaping punishable by death, if the jury so recommended, in
cases in which the victim had not been released unharmed, see 18
U.S.C. § 408a (1946). We held that the elimination, by the

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predecessor of § 3281, of any time limitation on the prosecution
of an offense "'punishable by death[] ' did not make the character
of the crime the test." 180 F.2d at 615. We stated that an
offense "does not become 'punishable' by [the decisionmaker] until
all the conditions imposed upon the exercise of [the
decisionmaker's] discretion have been satisfied," id. (emphases
added), i.e., unless and until all of the factors warranting
imposition of the death penalty have been found by the factfinder.
This interpretation of "punishable by death" has not been
followed, however, either by the Supreme Court in interpreting the
same kidnaping provision, or by this Court in interpreting other
statutes, including § 1959 (a) (1) .

In Smith v. United States, 360 U.S. 1 (1959), the Supreme
Court considered whether a prosecution under the kidnaping statute
that was at issue in Parrino, recodified at 18 U.S.C. § 1201
(Supp. II 1949) , could be initiated by the filing of an
information rather than an indictment, given the Fifth Amendment's
provision that, in general, " [n]o person shall be held to answer
for a capital . . . crime unless on a presentment or indictment of
a Grand Jury, " id. at 6 (internal quotation marks omitted), and
given the Fed. R. Crim. P. 7 (a) provision that " [a]n offense which
may be punished by death shall be prosecuted by indictment, " id.
(internal quotation marks omitted) (emphases in Smith) . The Smith
Court indicated that whether an offense is punishable by death
depends on the punishments authorized by the charging statute,

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rather than the appropriateness of that penalty in light of the
proof at trial :

Under the statute, [interstate kidnapping] is
punishable by death if certain proof is introduced at
trial. When an accused is charged, as here, with
transporting a kidnapping victim across state lines,
he is charged and will be tried for an offense which
may be punished by death. Although the imposition of
that penalty will depend on whether sufficient proof
of harm is introduced during the trial, that
circumstance does not alter the fact that the offense
itself is one which may be punished by death and thus
must be prosecuted by indictment. In other words,
when the offense as charged is sufficiently broad to
justify a capital verdict, the trial must proceed on
that basis, even though the evidence later
establishes that such a verdict cannot be sustained
because the victim was released unharmed. It is
neither procedurally correct nor practical to await
the conclusion of the evidence to determine whether
the accused is being prosecuted for a capital
offense.

360 U.S. at 8 (emphases in original) .

This Court reached a similar conclusion in United States
v. Kostadinov, 721 F.2d 411 (2d Cir. 1983) ("Kostadinov"), in
which the question was whether a provision authorizing the denial
of pretrial bail for a person "charged with an offense punishable
by death," 18 U.S.C. § 3148 (Supp. IV 1969), authorized the
district court to deny bail where the government was not seeking
the death penalty. We upheld the denial of bail, ruling that "the
purpose of the 'capital case' distinction in the bail statute
derives from the nature of the offense with which a given
defendant is charged and not from the potential severity of the
punishment. " 721 F.2d at 412 (emphasis added) (other internal
quotation marks omitted) .

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Just as that provision curtailing the defendant's right to
bail reflects the seriousness of the alleged offense, a provision
that subjects a person accused of certain crimes to prosecution
without time limitation reflects the serious nature of those
crimes. See, e.g., United States v. Manning, 56 F.3d 1188, 1196
(9th Cir. 1995) (in § 3281, "Congress has made the judgment that
some crimes are so serious that an offender should always be
punished if caught"). Accordingly, in United States v.
Petrucelli, 97 F. App'x 355, 359-60 (2d Cir. ) ( "Petrucelli") ,
cert. denied, 543 U.S. 993 (2004), we adopted the Kostadinov
interpretation of "punishable by death" in considering whether a
charge of murder in aid of racketeering in violation of
§ 1959 (a) (1) is governed by § 3281 or § 3282 (a). We concluded
that § 1959 (a) (1) 's prohibition against murder in aid of
racketeering activity "describes an offense 'punishable by death'
within the meaning of 18 U.S.C. § 3281," 97 F. App'x at 360,
despite the defendant's contention that "none of the aggravating
factors which would have justified a death sentence" were -- or
could have been -- alleged in the indictment, id. at 359. We
stated:

Kostadinov held that, irrespective of whether the
death penalty was sought by the government, the
appellant's crime was properly categorized as being
punishable by death simply because the death penalty
was authorized by the statute under which the
appellant was charged. In accordance with
Kostadinov, we find that 18 U.S.C. § 1959 (a) (1)
describes an offense "punishable by death" within the
meaning of 18 U.S.C. § 3281.

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97 F. App'x at 359-60. Although we decided Petrucelli by
nonprecedential summary order, rather than by opinion, our
" [d] enying summary orders precedential effect does not mean that
the court considers itself free to rule differently in similar
cases, " Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1.

In any event, we agree with Petrucelli that, in
determining whether an offense is "punishable by death" within the
meaning of § 3281 -- a provision designed to deny the defendant any
right of repose -- we look to the character of the offense and the
penalties that are set out by statute. An offense "punishable by
death, " within the meaning of § 3281, is one for which the statute
authorizes death as a punishment, regardless of whether the death
penalty is sought by the prosecution or ultimately found
appropriate by the factfinder or the court. Because § 1959 (a) (1)
provides that a person who "murders" in aid of racketeering may be
"punished
by death, " we conclude that the indictment for
that offense "may be found at any time without limitation, "
18 U.S.C. § 3281.

Our Sister Circuits that have considered arguments that
the five-year statute of limitations in § 3282 applies to other
murder offenses that are "punishable by death" have likewise
concluded that § 3281, rather than § 3282 applies. See, e. g.,
United States v. Ealy, 363 F.3d 292, 296-97 (4th Cir.) (murder in
furtherance of a continuing criminal enterprise and murder of a
witness, in violation of 21 U.S.C. § 848 (e) (1) (A) and 18 U.S.C.
§ 1512 (a) (1) (C) : "whether a crime is 'punishable by death' under

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§ 3281 or ' [not ]capital' under § 3282 depends on whether the
death penalty may be imposed for the crime under the enabling
statute, not on whether the death penalty is in fact available for
defendants in a particular case" (other internal quotation marks
omitted) (emphasis in Ealy) ), cert. denied, 543 U.S. 862 (2004) ;
United States v. Edwards, 159 F.3d 1117, 1128 (8th Cir. 1998)
(murder by arson, in violation of 18 U.S.C. § 844 (i) : § 3281
applicable even though the death penalty procedures in the
charging statute had been ruled unconstitutional), cert. denied,
528 U.S. 825 (1999) ; United States v. Manning, 56 F.3d at 1196
(murder by mail bomb, in violation of 18 U.S.C. § 1716 (a) : "the
statute of limitations provisions of sections 3281 and 3282 are
inextricably tied to the nature of the offense"); id. ("sections
3281 and 3282
derive their justification from the serious
nature of the crime rather than from a concern about, for
example, what procedural protections those who face a penalty as
grave as death are to receive") .

Accordingly, we reject Payne's contention that the five-
year statute of limitations barred his prosecution under
§ 1959 (a) (1) for the murders of Clemons and Newton in aid of
racketeering.

## B. Sufficiency of the Evidence

Payne contends that his convictions should be overturned
on the grounds that there was insufficient evidence to prove (1)
that there existed a RICO enterprise, (2) that there was a single

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narcotics conspiracy as alleged in the indictment, rather than a
group of individual, independent drug dealers, and that he was a
member of the conspiracy (and the enterprise) alleged in the
indictment, (3) that he committed the Clemons and Newton murders
for the purpose of furthering his position within the RICO
enterprise, and (4) that the racketeering acts concerning the
Clemons and Newton murders and the robberies of Newton and Kinsey
established a pattern of racketeering.

Our standard of review for sufficiency challenges is well
established. We must view the evidence in the light most
favorable to the government, crediting every inference that could
have been drawn in the government's favor. See, e.g., United
States v. Chavez, 549 F.3d 119, 124-25 (2d Cir. 2008) ; United
States v. Eppolito, 543 F.3d 25, 45-46 (2d Cir. 2008)
( "Eppolito"), cert. denied, 129 S. Ct. 1027 (2009) ; United States
v. Pimentel, 346 F.3d 285, 295 (2d Cir. 2003), cert. denied, 543
U.S. 955 (2004). Assessments of witness credibility and choices
between competing inferences lie solely within the province of the
jury. " [W]here there are conflicts in the testimony, we must
defer to the jury's resolution of the weight of the evidence and

the credibility of the witnesses
11
United States v.
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Miller, 116 F.3d 641, 676 (2d Cir. 1997), cert. denied, 524 U.S.
905 (1998) ; see, e.g., United States v. Jones, 393 F.3d 107, 111
(2d Cir. 2004) . We must uphold the conviction if "any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307,

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319 (1979) (emphasis in original). Given these principles, we
reject all of Payne's sufficiency challenges.

### 1. Existence of the RICO Enterprise

The indictment alleged that from 1985 through January 2003
a number of associated individuals participated in and conducted
the affairs of a RICO enterprise by, inter alia, distributing
crack and powder cocaine and committing robberies and murders in
furtherance of their drug distribution operations. RICO defines
the term "enterprise" to include "any . . . group of individuals
associated in fact." 18 U.S.C. § 1961(4). The existence of a
RICO enterprise may be "proved by evidence of an ongoing
organization, formal or informal, and by evidence that the various
associates function as a continuing unit." United States v.
Turkette, 452 U.S. 576, 583 (1981). "' [A]n association-in-fact is
oftentimes more readily proven by what it does, rather than by
abstract analysis of its structure. '" United States v. Jones, 482
F.3d 60, 69-70 (2d Cir. 2006) (quoting United States v. Coonan,
938 F.2d 1553, 1559 (2d Cir. 1991), cert. denied, 503 U.S. 941
(1992) (emphasis in Coonan) ), cert. denied, 549 U.S. 1231 (2007) .

"An 'individuals associated in fact' enterprise, 18 U.S.C.
§ 1961 (4) , may continue to exist even though it undergoes changes
in membership." Eppolito, 543 F.3d at 49; see, e.g., Coonan, 938
F.2d at 1560-61.

Although Payne contends that the evidence at trial merely
showed a group of "neighborhood friends" who "may have given each

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other sporadic assistance" (Payne brief on appeal at 60), that
characterization plainly does not view the evidence in the light
most favorable to the government. As described in Part I.A.
above, there was testimony by Thomas and Hatcher that there were
more than a dozen individuals distributing narcotics in the East
New York section of Brooklyn; although there was no highly
structured organization, Thomas and Hatcher testified that these
individuals were members of a "family" or "street family" who
"made money together, " i.e., they would "sell drugs together, "
"protect [] each other, " and take "care of each other" by providing
funds for family members who were "broke" or in jail. The family
was protective of its territory, allowing family members to sell
drugs at family spots, coordinating family members' selling hours
if they used the same spot and otherwise avoiding conflicts with
one another, excluding nonmembers of the family from those spots,
and using violence against rivals who attempted to possess or
repossess family spots. Thomas and Hatcher, by their own accounts
at trial, were members of the family from the mid-1980s until they
were arrested in connection with this case in 2002 and began to
cooperate with the government. The evidence permitted the
inference that Hatcher was a member of the family throughout that
period even though he was in prison during most of the 1990s.
While he was in prison, Hunter paid Hatcher's wife and father some
$200, 000; and Hatcher (who "was always a person [Thomas]
considered a boss" (Tr. 1499) ) kept track of what was going on in
family territory through periodic reports from Hunter (see id. at

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687-90). When family members were released from prison, other
family members promptly saw to it that they were supplied with
money and guns. Thus, the evidence to establish the existence of
a group of drug dealers who were associated in fact was abundant.

There was also ample testimony that Payne became a member
of the family in 1995 and fulfilled various family needs
thereafter. At first he was a lieutenant for Thomas, packaging
cocaine, keeping the workers supplied, collecting the proceeds of
the sales, and occasionally making the purchases from Thomas's
suppliers. Although Payne lost his lieutenant position in 1996,
the evidence easily permitted the jury to infer that he remained a
member of the family, as Thomas testified that Payne was there to
provide whatever assistance was needed. Indeed, Hunter, as
Thomas's drug-selling partner, considered Payne's post-lieutenancy
services so integral to their operations that he tried in 1996 to
persuade Thomas that the partnership's profits should be split
three ways, to include Payne. In 1997, when Thomas confided to
Hunter and Payne that Clemons had slept with Thomas's girlfriend,
Payne participated in the ambush of Clemons and shot him to death.
When Hatcher was released from prison in 1998 and arrived in
Manhattan, Hunter and Payne picked him up, and Payne was
introduced to Hatcher as a new "shooter in the family";

thereafter, Payne and Hatcher became "robbing budd [ies] ." When
Thomas and Hatcher decided to rob and kill Newton in 2000, Hatcher
enlisted Payne. In 2000, Thomas, Hatcher, and Payne agreed that
Payne would distribute drugs at the Thomas-Hatcher partnership

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spot during the nighttime hours when Thomas and Hatcher were not
operating; Payne would not have been allowed to sell there had he
not been a member of the family (see, e.g., id. at 1436, 1630) .
And when Payne obtained narcotics by robbing other drug dealers,
he gave half of the stolen drugs to Hatcher.

In sum, Payne's contention that the evidence was
insufficient to permit inferences that the RICO enterprise alleged
in the indictment existed, and that he participated in it, borders
on the frivolous.

### 2. Existence of a Single Narcotics Conspiracy

Payne's contention that the evidence was insufficient to
show his participation in the single drug distribution conspiracy
alleged in the indictment -- i.e., a conspiracy "between 1985 and
January 2003, both dates being approximate and inclusive" -- fares
no better. "[A] single conspiracy is not transformed into
multiple conspiracies merely by virtue of the fact that it may
involve two or more phases or spheres of operation, so long as
there is sufficient proof of mutual dependence and assistance."
United States v. Geibel, 369 F.3d 682, 689 (2d Cir.) (internal
quotation marks omitted), cert. denied, 543 U.S. 999 (2004).
"Changes in membership[ and/or] differences in time periods
do not necessarily require a finding of more than one
conspiracy." United States v. Jones, 482 F.3d at 72. "In the
24 context of narcotics operations
we have held that even where
there are multiple groups within an alleged conspiracy, a single

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conspiracy exists where the groups share a common goal and depend
upon and assist each other, and we can reasonably infer that each
actor was aware of his part in a larger organization where others
performed similar roles." United States v. Berger, 224 F.3d 107,
115 (2d Cir. 2000) (internal quotation marks omitted) .

"The matter of whether there existed a single conspiracy
as charged in the indictment, " or instead multiple conspiracies
that did not include the conspiracy alleged, "is a question of
fact for a properly instructed jury." United States v. Chavez,
549 F.3d at 125 (internal quotation marks omitted). Even if
multiple conspiracies are found, the jury should convict the
defendant if it finds that one of the proven conspiracies was the
one alleged in the indictment and that the defendant was a member
of it. See, e.g., United States v. Thompson, 76 F.3d 442, 454 (2d
Cir. 1996) ; United States v. Lam Lek Chong, 544 F.2d 58, 68 (2d
Cir. 1976) , cert. denied, 429 U.S. 1101 (1977); United States v.
Tramunti, 513 F.2d 1087, 1107 (2d Cir.), cert. denied, 423 U.S.
832 (1975). We will affirm the jury's verdict unless, on the
evidence presented, no rational factfinder could have found that
the conspiracy alleged in the indictment existed.

The district court here properly instructed the jury that
it could not find Payne guilty on count ten unless it found that
the government had proven the existence of the conspiracy alleged
in the indictment and Payne's membership in that conspiracy; and
we see no basis on which to overturn the jury's verdict. Payne's
contentions (a) that " [t]here was not one narcotic [s] conspiracy

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spanning eighteen years but a host of conspiracies, actually a
variety of drug dealers, friendly, but running separate
business [es] " (Payne brief on appeal at 55), and (b) that his
association with the family ended in 1996 when he was fired as
Thomas's lieutenant (see id. at 56; see also id. at 45 (arguing
that Payne "was thrown out of the group") ) are belied by the
evidence discussed in Parts I.A. and II.B.1. above. The jury was
entitled to find that the alleged conspiracy existed in light of
the evidence that Thomas and Hatcher became members of the drug
distribution "family" in the mid-1980s; that, by agreement, family
members would " [s]ell drugs together" (Tr. 1172), coordinating and
not competing with each other (see, e.g., id. at 743, 708-09), and
supporting each other with money, weapons, and retaliatory actions
when needed; that Thomas sold drugs throughout the 1985-2002
period; that although Hatcher spent several years in prison in the
1990s, he remained a member of the drug distribution family and
was supported monetarily while incarcerated; that when Hunter was
released from prison in 1996, Payne and Thomas helped him
financially (see id. at 1326) ; that when Hatcher was released
from prison in 1998, Payne and Hunter helped him financially (see
id. at 709-10) ; and that Hatcher, upon his release from prison,
could have, as a family member, sold drugs on the same block as
Thomas, but he declined because that would have been "a conflict
of interest" as Hatcher and Thomas were "family, period" (id. at
708-09). Hatcher said, "We don't do business like that. Why
would we compete against ourselves?" (Id. at 709.)

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The record also included evidence that Hunter was a member
of the conspiracy throughout the period alleged in the indictment,
working first with Hatcher and later with Thomas. Although in and
out of jail with considerable frequency, he was supported during
periods of incarceration by Thomas and/or Hatcher. On at least
one occasion while Hunter was incarcerated, he was consulted by
Hatcher with respect to the appropriateness of killing a person
who was acting in a manner detrimental to the interests of the
family. (See id. at 634-37.)

The evidence discussed in Parts I.A. and II.B.1. above
showed that Payne joined the ongoing conspiracy in 1995. He
served as a lieutenant for Thomas in the procurement, packaging,
delivery, and protection of crack cocaine in 1995-1996; as a
killer and robber at the behest of Thomas in 1997 and 2000; as a
robbery partner of Hunter in 1998; as a robbery partner of Hatcher
after Hatcher was released from prison in 1998 and through at
least January 2000; as a supplier of drugs to Hatcher in and after
2000; and, by agreement with Thomas and Hatcher, as a fellow
seller of crack at Georgia/Hegeman beginning in 2000.

In sum, the evidence was ample to permit the jury to find
that there was, as alleged in the indictment, a single ongoing
narcotics conspiracy of which Hatcher, Thomas, and Hunter were
core members, and that Payne was a member of that conspiracy,
joining in 1995 and continuing to participate in it at least until
Thomas and Hatcher were arrested in connection with this case in
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3\. Murder To Increase or Maintain Payne's Enterprise Position
Payne contends that the evidence was insufficient to
establish that his motivation in participating in the murders of
Clemons and Newton was to further his position in the Hatcher-
Thomas-Hunter enterprise, based in part on his contention that he
had been "thrown out of the group" in 1996 (Payne brief on appeal
at 45). Again, we disagree.

Section 1959 (a) 's phrase "for the purpose of
maintaining or increasing position in an enterprise engaged in
racketeering activity" is to be interpreted in accordance with
"its plain terms," giving those terms their "ordinary meaning, "
United States v. Dhinsa, 243 F.3d 635, 671 (2d Cir.), cert.
denied, 534 U.S. 897 (2001). "Thus, on its face, section 1959
encompasses violent crimes intended to preserve the defendant's
position in the enterprise or to enhance his reputation and wealth
within that enterprise." Id. (emphases in original). Further,
maintaining or increasing his position in the RICO enterprise need
not have been the defendant's sole, or even his principal,
motivation. Rather, "the motive requirement is satisfied if the
jury could properly infer that the defendant committed his violent
crime because he knew it was expected of him by reason of his
membership in the enterprise or that he committed it in
furtherance of that membership." United States v. Pimentel, 346
F.3d at 295-96 (internal quotation marks omitted) .

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Here, the record was ample to permit the jury to infer
that Payne was not in fact "thrown out of the group" in 1996 but
rather remained a member of the family enterprise, and that he
participated in the Newton and Clemons murders -- as asked or
ordered (see, e.g., Tr. 704 ("'Boo' gave the order for [Clemons]
to be killed") ) to do by the principal leaders of the enterprise --
with the requisite motivation. As described in Part I.A.1. above,
after losing his lieutenant position to Clemons, Payne nonetheless
remained a member of the family; Thomas testified that Payne
thereafter "stayed around" to "help us" if "we needed him for
something. " Both Thomas and Hatcher testified that Payne was
"upset" that he had been replaced as lieutenant by Clemons, and
the jury was entitled to infer that Payne's subsequent actions
toward Clemons -- including accusing Clemons of being a "snitch"
who might jeopardize the family's security, advising Thomas that
Clemons be killed, and finally shooting and killing Clemons as
ordered by Thomas -- all reflected a desire by Payne to regain his
lieutenancy and/or to enhance his position in the family.

The evidence as to the killing of Newton was also
sufficient to support an inference that Payne assisted in that
murder in part in order to maintain his position in the family.
The enterprise's purpose in robbing Newton of his 600 grams of
heroin was to enrich core members of the family; the purpose of
murdering Newton was to minimize the possibility of reprisals for
that robbery. Payne was asked to participate by Hatcher, an
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the jury to infer that Payne complied with Hatcher's request to
participate in that murder in order to maintain or increase
Payne's position in the enterprise.

## 4. Pattern of Racketeering Activity

Finally, we reject Payne's contention that the murders of
Clemons and Newton and the robberies of Newton and Kinsey lacked
the relatedness needed to establish a pattern of racketeering
activity, as required by 18 U.S.C. § 1962 (c). The pattern
requirement is designed "to prevent the application of RICO to the
perpetrators of isolated or sporadic criminal acts." United
States v. Indelicato, 865 F.2d 1370, 1383 (2d Cir.) (internal
quotation marks omitted), cert. denied, 493 U.S. 811 (1989) .
Thus, "to prove a pattern of racketeering activity a . . .
prosecutor must show that the racketeering predicates are related,
and that they amount to or pose a threat of continued criminal
activity. " H. J. Inc. v. Northwestern Bell Telephone Co., 492 U.S.
229, 239 (1989) (emphasis omitted). To meet this test, the
racketeering acts must be related both to each other and to the
enterprise. See, e.q., United States v. Minicone, 960 F.2d 1099,
1106 (2d Cir.), cert. denied, 503 U.S. 950 (1992). "[C]riminal
conduct forms a pattern if it embraces criminal acts that have the
same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by
distinguishing characteristics and are not isolated events. " H.J.
Inc., 492 U.S. at 240 (internal quotation marks omitted) (emphases

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ours) . " [E]vidence of prior uncharged crimes and other bad acts
that were committed by defendants []" may be "relevant . . . to
prove the existence, organization and nature of the RICO
enterprise, and a pattern of racketeering activity by each
defendant []." United States v. Diaz, 176 F.3d 52, 79 (2d Cir.),
cert. denied, 528 U.S. 875 (1999).

The evidence as to the killings of Clemons and Newton and
the robberies of Newton and Kinsey easily met these tests. The
robberies were related to the enterprise because they were
designed to enrich core members of the enterprise. Thus, the
robbery of Kinsey, instigated by Hunter, enriched Hunter and
Payne, along with a third person, by nearly $30,000. The robbery
of Newton, as planned by Hatcher, Thomas, and Payne, enriched them
by the $30-$45, 000 that "Boobie" paid them for Newton's heroin.
The murders of Newton and Clemons were related to the enterprise
because they, inter alia, reduced the risk of interference with
the enterprise's operations. By killing Newton, the family
minimized the chance of retaliation by the persons from whom
Newton had obtained the heroin. By killing Clemons, the family
both punished a worker for disrespecting his boss, thereby
promoting internal discipline, and eliminated a person suspected
of being a "snitch, " thereby reducing the threat of interruptions
by law enforcement. Thus, the purposes of murdering Newton and
Clemons were or included facilitation of the enterprise's
continuation of its criminal activities.

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These racketeering acts were related to each other not
only by their shared purposes but also by the commonality of the
participants and the ways in which they were committed. The same
methods were used to achieve the enterprise's goals. In each case
at least two men attacked the victim at gunpoint; and in each case
the victim was brutally physically assaulted, despite the fact
that each was supposedly a friend of the family. Payne was a
participant in all of these events; and in each of them his co-
participants were either Thomas and Hunter, or Hunter, or Thomas
and Hatcher. These robberies and assaults in furtherance of the
enterprise's purposes were hardly isolated incidents. The
essence of being a family member was described by Hatcher and
Thomas as "sell [ing] drugs" and " [s]hoot [ing] " (Tr. 556), and
retaliating if " [s]omebody d[id] something to one of us" (id. at
1172). In addition to evidence as to the crimes specified as
Payne's racketeering acts, there was other evidence that Payne was
committing robberies in the late 1990s while Hatcher was still in
prison (see id. at 1362) ; that after Hatcher was released from
prison he and Payne "were doing robberies" together (id. at 1375;
see also id. at 724, 729) ; that Payne "used to rob drug dealers
and get the money so that he could get drugs from them so that
they could sell them on the block" (id. at 1376) ; that Payne and

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Hunter attempted unsuccessfully to rob, and had planned to kill, a
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woman they believed to possess $500,000 belonging to her bank-
robber boyfriend (see id. at 1375-83) ; and that Payne, because he
was "part of the family" (id. at 1452), participated in repeated

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attempts to locate, and kill, two individuals who had shot Thomas
(see, e.g., id. at 1446-52) .

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In sum, the evidence was more than sufficient to permit
the jury to find that the murders of Clemons and Newton and the
robberies of Newton and Kinsey were not isolated incidents but
instead were part of a pattern of racketeering activity.

### III. SENTENCING CHALLENGES

Payne also contends that the sentence imposed on him is
unreasonable. His most precise challenges are to the 10-year term
of imprisonment imposed on the firearms count; he also makes a
number of general challenges to the sentencing proceedings with
respect to the other counts. We find no merit in his contentions.

### A. The 10-Year Sentence on the Firearms Count

Section § 924 (c) (1) (A), under which the court sentenced
Payne to 10 years' imprisonment as a mandatory minimum, to be
served consecutively to his terms of life imprisonment on the
RICO, murder-in-aid-of-racketeering, and narcotics counts,
provides as follows:

(c) (1) (A) Except to the extent that a greater
minimum sentence is otherwise provided by this
subsection or by any other provision of law, any
person who, during and in relation to any crime of
violence or drug trafficking crime (including a crime
of violence or drug trafficking crime that provides
for an enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in

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furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime --

(i) be sentenced to a term of imprisonment
of not less than 5 years;

(ii) if the firearm is brandished, be
sentenced to a term of imprisonment of not less
than 7 years; and

(iii) if the firearm is discharged, be
sentenced to a term of imprisonment of not less
than 10 years.

18 U.S.C. § 924 (c) (1) (A) (emphases added) . Payne contends (1),
relying on United States v. Williams, 558 F.3d 166 (2d Cir.)
( "Williams") , petition for cert. filed, No. 09-466, 78 U.S.L.W.
3254 (U.S. Oct. 20, 2009), that this section's provisions for
mandatory minimum sentences were not applicable to him because he
was subject to a "greater minimum sentence, " and (2) that
subsection (iii) could not be applied because there was no
finding, by the jury or by the sentencing court -- and no evidence --
that he had discharged a firearm within the five-year statute-of-
limitations period. We find no basis for reversal.

1\. The Contention that $ 924 (c) (1) (A) Was Not Applicable

Payne did not argue in the district court that
§ 924 (c) (1) (A) was not applicable on the ground that other
provisions subjected him to a longer minimum sentence.
Accordingly, this contention is reviewable only for plain error.
See Fed. R. Crim. P. 52 (b). A plain error is an "error" that is
"plain" and that prejudicially affected the defendant's
"substantial rights" and "seriously affect [ed] the fairness,

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integrity or public reputation of judicial proceedings." United
States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation
marks omitted) . Payne does not meet this standard.

Our decision in Williams, on which Payne relies, was
preceded by United States v. Whitley, 529 F.3d 150 (2d Cir. ),
reh'g denied, 540 F.3d 87 (2d Cir. 2008), in which we closely
examined the literal language of § 924 (c) (1) (A) as it affected a
defendant who had been sentenced to both the 15-year mandatory
minimum prison term provided by 18 U.S.C. § 924 (e) for armed
career criminals and the 10-year mandatory minimum sentence
provided by § 924 (c) (1) (A) (iii) for a defendant who discharged a
weapon during and in relation to a crime of violence. We ruled
that § 924 (c) (1) (A) 's "except clause, " i.e., " [e]xcept to the
extent that a greater minimum sentence is otherwise provided by
this subsection or by any other provision of law," should be
applied in accordance with its terms. See Whitley, 529 F.3d at
153, 158. Since § 924 (e) provided a longer mandatory minimum
prison term than § 924 (c) (1) (A) , we concluded that the defendant
was exempt from the latter, and that the imposition of the
§ 924 (c) (1) (A) (iii) sentence constituted plain error. See 529
F.3d at 158; id. at 152 n.1.

In Williams, 558 F.3d 166, the defendant was convicted of
drug trafficking in violation of 21 U.S.C. § 841 (b) (1) (A), for
which he was sentenced to a mandatory minimum of 10 years'
imprisonment; and he was convicted of possession of a firearm in
furtherance of that crime, for which he was sentenced to the

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mandatory minimum five-year prison term provided by 18 U.S.C.
§ 924 (c) (1) (A) (i), consecutive to his 10-year sentence on that
underlying narcotics count. The government argued, inter alia,
that the rule announced in Whitley should be limited to cases in
which the "greater minimum sentence, " impeding application of
§ 924 (c) (1) (A) 's mandatory minimums, was a punishment for a
firearms offense. We rejected that argument. Although stating
that "we do not hold that the 'except' clause is unbounded, " we
held that "the 'except' clause includes minimum sentences for
predicate statutory offenses arising from the same criminal
transaction or operative set of facts." 558 F.3d at 170-71.
Thus, we concluded that, in light of the greater mandatory minimum
provided for the predicate drug offense, 10 years, the imposition
of a mandatory minimum term of five years' imprisonment pursuant
to § 924 (c) (1) (A) (i) constituted plain error.

The boundary suggested in Williams was applied in our
subsequent decision in United States v. Parker, 577 F.3d 143 (2d
Cir. 2009). The defendant in Parker was convicted on several
narcotics counts, including one that charged him with trafficking
in a "detectable amount" of crack in July 2002 in violation of
21 U.S.C. §§ 841 (a) (1) and 841 (b) (1) (C) (Count II), and one that
charged him with trafficking in five grams or more of crack in
April-May 2002 in violation of § 841 (a) (1), a quantity that
subjected him, because he had a prior drug felony conviction, to a
mandatory minimum sentence of 10 years, see 21 U.S.C.
§ 841 (b) (1) (B) (Count V). He was also convicted on two firearms

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counts, on one of which (Count I) he was given a mandatory minimum
sentence of five years' imprisonment pursuant to 18 U.S.C.
§ 924 (c) (1) (A) (i). We pointed out that one element of a § 924 (c)
offense is an underlying crime of violence or drug trafficking
crime during and in relation to which the firearm was used or
carried, and that the underlying crime specified in Count I of the
indictment was the July 2002 distribution alleged in Count II. We

noted that the Count II "§ 841 (b) (1) (C) offense
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contrast to the § 841 (b) (1) (A) predicate in Williams, 'provides
for no mandatory minimum' sentence." 577 F.3d at 146 (quoting
United States v. Pressley, 469 F.3d 63, 64 (2d Cir. 2006), cert.
denied, 549 U.S. 1297 (2007) (emphasis in Parker) ). Accordingly,

"Parker's predicate drug-trafficking crime provide [d] for no
'greater minimum sentence, ' 18 U.S.C. § 924 (c) (1) (A), than that
mandated by § 924 (c) (1) (A) (i) ." Parker, 577 F.3d at 146.

Although a different count of the indictment in Parker,
Count V, alleged a drug offense in April-May 2002 that did carry a
mandatory minimum sentence of 10 years, the Count V offense was
not alleged to be a predicate offense for the § 924 (c) firearms
offense. We stated that " [a]s Williams observed, the 'except'
clause is not unbounded, " and we held that "it applie [d] only to
'minimum sentences for predicate statutory offenses arising from
the same criminal transaction or operative set of facts. ""
Parker, 577 F.3d at 147 (quoting Williams, 558 F.3d at 171
(emphasis in Parker) ). We concluded that because the indictment
did not allege, and the jury did not find, that the weapon Parker

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possessed was carried in furtherance of the April-May offense
alleged in Count V,

the district court's statutory obligation under 21
U.S.C. § 841 (b) (1) (B) to sentence Parker to a minimum
120-month prison term on Count V did not relieve it
of its statutory obligation under 18 U.S.C.
§ 924 (c) (1) (A) (i) to sentence Parker to a consecutive
60-month prison term on Count I for the drug offense
detailed in Count II.

577 F.3d at 147.

In the present case, count twelve of the indictment
charged Payne with using and carrying a firearm during and in
relation to the drug offenses charged in counts ten and eleven, to
wit, conspiracy to distribute, and distribution of, cocaine. The
jury, after being instructed that it could not convict Payne of
the firearms offense unless it first found him guilty on one or
both of those drug counts, found him guilty on both drug counts
and on the firearms count. As the drug trafficking crimes in the
count ten and count eleven predicate offenses for Payne's
§ 924 (c) (1) (A) conviction carried mandatory minimum prison terms
of 10 years, and the mandatory minimum prison term imposed on
Payne on the firearms count pursuant to § 924 (c) (1) (A) (iii) was
10 years, the mandatory minimums provided for the drug offenses
were the same as, not greater than, the 10-year firearms sentence.
Accordingly, the "except clause" of § 924 (c) (1) (A) was not
triggered by the mandatory minimums provided for Payne's narcotics
offenses.

Payne argues, however, that by reason of his convictions
on the murder-in-aid-of-racketeering counts he was subject to

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mandatory minimum prison terms greater than the 10 years to which
he was sentenced under § 924 (c) (1) (A) because "18 U.S.C.
§ 1959 (a) (1) carries a mandatory minimum sentence of life in
prison, " United States v. James, 239 F.3d 120, 127 (2d Cir. 2000)
("James"), cert. denied, 532 U.S. 1000 (2001). Under the
principle established in Parker, however, § 924 (c) (1) (A) 's "except
clause" does not encompass those counts in this case because
murder in aid of racketeering was neither alleged nor found to be
a predicate offense for Payne's firearms offense.

Accordingly, we see no error, plain or otherwise, in the
district court's imposition on Payne of a mandatory consecutive
prison term pursuant to § 924 (c) (1) (A) . And were we to find
error, we would be bound to conclude that the plain-error test is
not met: Given that the firearms sentence is not to begin until
Payne has completed his life, the 10-year sentence does not
affect his substantial rights.

2\.
The Contentions that the $ 924 (c) (1) (A) (iii)
Sentence Was Improper Because It Was Unsupported
by Findings or Evidence

Payne also contends that he could not properly be
sentenced to the 10-year term of imprisonment provided by
subsection (iii) of § 924 (c) (1) (A) -- rather than the five-year term
provided by subsection (i) -- because (a) there was no finding by
the jury, or even by the court, that he discharged a firearm
within the five-year statute-of-limitations period, and (b) there

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was no evidence that could support such a finding.
These
contentions have no merit.

Payne's contention that he could not be punished under
subsection (iii) unless a finding of discharge was made by the
jury, a contention he advanced in the district court, is
foreclosed by the Supreme Court's decision in Harris v. United
States, 536 U.S. 545 (2002). Harris held that "§ 924 (c) (1) (A)
defines a single offense" and that "brandishing and discharging
[are] sentencing factors to be found by the judge, not offense
elements to be found by the jury," 536 U.S. at 556 (emphasis
added) . Although Payne contends that the holding of Harris is no
longer viable in light of United States v. Booker, 543 U.S. 220,
244 (2005), this Court has rejected such contentions and has
continued to follow Harris, see, e.g., United States v. Gomez, 580
F.3d 94, 104 (2d Cir. 2009) ; United States v. Johnson, 507 F.3d
793, 798 n.6 (2d Cir. 2007), cert. denied, 128 S. Ct. 1750 (2008) .
Payne's contention that the imposition of sentence on him
pursuant to § 924 (c) (1) (A) (iii) was error because even the
sentencing judge failed to make a finding of discharge -- a
contention not raised in the district court -- does not meet the
test for plain error. Having presided over the trial, and having
listened at the sentencing hearing to the government's
description -- without contradiction by Payne -- of Payne as "the
shooter" in the Clemons murder, "sh [ooting] Mr. Clemens [from] 3
25 feet, 4 feet away
in the back of a livery cab" (Sentencing
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Transcript, February 1, 2008 ("S. Tr. "), at 14), the court stated

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that Payne's murders "couldn't get more brutal, more cold-blooded"
(id. at 16). We conclude that the court implicitly found that
Payne had discharged his firearm.

Finally, Payne contends that he could not be sentenced on
the basis that he discharged a firearm because, although the jury
found that he had used or carried a firearm within the five-year
statute-of-limitations period, the only evidence of his shooting
concerned events prior to that period. Given the nature of
Payne's firearms offense, we reject this contention.

Conspiracy is a continuing offense. See, e.g., United
States v. Kissel, 218 U.S. 601, 607 (1910); Eppolito, 543 F.3d at
47. A continuing offense is, in general, one that involves a
prolonged course of conduct; its commission is not complete until
the conduct has run its course. See, e.q., Toussie v. United
States, 397 U.S. 112, 115, 120-21 (1970). When a defendant is
convicted of violating § 924 (c) (1) (A) for using or carrying a
firearm during and in relation to a crime that is a continuing
offense, the § 924 (c) (1) crime itself is a continuing offense.
See, e.g., United States v. Cuervo, 354 F.3d 969, 992 (8th Cir.
2004) , vacated on other grounds sub nom. Norman v. United States,
543 U.S. 1099 (2005) ; cf. United States v. Rodriquez-Moreno, 526
U.S. 275, 281 (1999) (holding that § 924 (c) (1) constitutes a
continuing offense for purposes of venue where the predicate
offense is a continuing offense: "In our view, § 924 (c) (1) does
not define a 'point-in-time' offense when a firearm is used during
and in relation to a continuing crime of violence. ") .

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Because the narcotics distribution conspiracy that was a
predicate of Payne's firearms offense was a continuing crime,
Payne's firearms offense was likewise a continuing offense, rather
than a "point-in-time" offense. And because, as discussed above,
"brandishing and discharging [are] sentencing factors to be found
by the judge, not offense elements to be found by the jury, "
Harris, 536 U.S. at 556, the district court could properly
consider, in determining Payne's appropriate sentence, whether
Payne discharged a firearm at any point during the continuation of
his § 924 (c) (1) (A) offense. See also United States v. Silkowski,
32 F.3d 682, 688 (2d Cir. 1994) (a district court may properly
rely on acts performed outside the five-year statute-of-
limitations period as "relevant conduct" in calculating the
defendant's term of imprisonment under the Guidelines) .

## B. Other Sentencing Contentions

Payne also makes a number of general sentencing
challenges, all of which we find meritless. None of them requires
extended discussion.

Payne contends that the district court abused its
discretion in denying his request for an adjournment of his
sentencing hearing in order to present "factors in mitigation of
sentencing." (Payne brief on appeal at 63.) This contention
provides no basis for reversal. In support of the request for "an
adjournment for an extended period" (S.Tr. 2), Payne's principal
trial counsel stated that he was not prepared to present

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mitigating factors because he had assumed, based on this Court's
holding in James, 239 F.3d 120, that sentences of life
imprisonment for Payne's convictions on the murder-in-aid-of -
racketeering counts were mandatory, that he believed James to be
wrongly decided, and that he wished an adjournment in order to
prepare mitigating factors in case either the district court or
the court of appeals concluded, contrary to James, that the
district court did have discretion to impose a prison term of less
than life (see S. Tr. 2-6, 13; id. at 5 ("if in fact your Honor has
a discretion, then I would hope the Second Circuit on appeal will
determine that the case should be remanded for resentencing") ) .
We see no abuse of discretion in the district court's denial of
this adjournment request, which, in any event, has become moot, as
the contention that James was wrongly decided has not been pursued
on this appeal.
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Payne also contends that the district court "failed to
calculate Payne's Guidelines sentence
and appeared to treat
Payne's guideline sentence as mandatory as opposed to advisory."
(Payne brief on appeal at 63.)
Neither of these apparently
inconsistent contentions is supported by the record. "A district
court satisfies its obligation to make the requisite specific
factual findings when it explicitly adopts the factual findings
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set forth in the presentence report.
It may do so either at
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the sentencing hearing or in the written judgment it files later. "
United States v. Molina, 356 F.3d 269, 275-76 (2d Cir. 2004).
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Here, the sentencing ranges recommended by the Guidelines were

computed in the presentence report on Payne ("PSR") prepared by
the United States Probation Department; the district judge filed
with the judgment a STATEMENT OF REASONS in which he expressly
stated that he adopted the PSR. Further, the record of the
sentencing hearing itself suggests that the court was adopting the
PSR, as the court indicated that the "probation report" would be
amended to reflect the fact that, subsequent to the preparation of
the PSR, three counts of conviction had been dismissed pursuant to
Payne's Rule 29 motion (see S. Tr. 15-16). The record at
sentencing also indicates that the court considered the
Guidelines. For example, a discussion of whether Payne was
responsible for more than 4.5 kilograms of crack (see id. at 6-7,
14) plainly concerned Payne's Guidelines offense level, see
Guidelines § 2D1.1 (c) (1) (prescribing the highest offense level
for a defendant responsible for "4.5 KG or more of Cocaine Base") .
And the court discussed Payne's objection to an obstruction-of-
justice "enhancement" (S.Tr. 9) and "adjustment" (id. at 10) --
clearly Guidelines terms. As to the nature of the Guidelines, the
PSR, which the district court adopted in its STATEMENT OF REASONS,
cited Booker and stated that although the Guidelines must be
consulted, they are advisory. At the hearing, Payne's attorney
himself spoke in terms of "the advisory guidelines" (S.Tr. 6), and
nothing in the sentencing transcript -- or anything else in the
record -- indicates that the court viewed the Guidelines as anything
other than advisory.

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With regard to the Guidelines calculation of the amount of
crack cocaine for which Payne was responsible, the district court
stated, "I
find that 4.5 kilograms of crack cocaine is a
gross understatement of the amount involved in this offense."
(Id. at 6-7.) Payne contends that this finding constitutes a
procedural error because the court did not calculate the amount of
crack cocaine "attributable to Payne, as opposed to the conspiracy
in general" (Payne brief on appeal at 64). We disagree. Payne
was accountable for "all reasonably foreseeable quantities" of
crack distributed by the conspiracy of which he was a member, see,
e.g., United States v. Chavez, 549 F.3d at 136; Guidelines § 1B1.3
Application Note 2. According to the evidence at trial, on which
the district court expressly relied (see S. Tr. 7) -- and the verdict
of the jury which found Payne guilty after it was instructed that
in order to do so it must find that he was a member of the single
conspiracy alleged in the indictment -- Payne was a member of the
conspiracy at least during the period beginning in 1995 and
continuing well into the 2000s. But even considering only the
one-year period during which Payne served as Thomas's lieutenant,
the district court's finding was unimpeachable. Thomas testified
that as his lieutenant, Payne, inter alia, packaged the crack and
delivered the packages to sellers " [f]or about a year or so"
(Tr. 1322) ; that they were selling seven days a week (see id. at
1320) ; and that sales averaged 62 to 125 grams of crack a day (see
id.).
Thus, considering just the one year when Payne was
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of Thomas's estimate as to the quantities sold, Payne was
responsible for the distribution of more than 22.6 kilograms of
crack.

Finally, we reject Payne's contentions that his sentence
was procedurally flawed on the ground that the court "failed to
consider 3553 (a) factors" (Payne brief on appeal at 63) and
"failed to adequately explain the sentence it imposed on Counts
One, Two, Ten and Eleven, " i.e., the RICO and narcotics counts
9 (id. at 65) .

In determining whether the district court has
considered the appropriate factors, we do not require
"robotic incantations" by the sentencing judge.
United States v. Brown, 514 F.3d 256, 270 (2d Cir.
2008) ; United States v. Fernandez, 443 F.3d 19, 30
(2d Cir.), cert. denied, 549 U.S. 882 . . . (2006) ;
[United States v.] Crosby, 397 F.3d [103,] 113 [ (2d
Cir. 2005)]. In the absence of record evidence
suggesting otherwise, we presume that the district
court has faithfully discharged its duty to consider
the § 3553 (a) factors. See, e.g., United States v.
Brown, 514 F.3d at 264; United States v. Fernandez,
443 F.3d at 30.

United States v. Carr, 557 F.3d 93, 107 (2d Cir.), cert. denied,
130 S. Ct. 169 (2009) ; see, e.g., United States v. Fleming, 397
F.3d 95, 100 (2d Cir. 2005) ("As long as the judge is aware of
both the statutory requirements and the sentencing range or ranges
that are arguably applicable, and nothing in the record indicates
misunderstanding about such materials or misperception about their
relevance, we will accept that the requisite consideration has
occurred. "). In the present case, the district court's
explanation at sentencing, though sketchy, reflects explicit
consideration of such § 3553 (a) factors as "the nature and

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circumstances of the offense," 18 U.S.C. § 3553 (a) (1), "the need
for the sentence imposed . . . to reflect the seriousness of the
offense, " id. § 3553 (a) (2) (A) , "the kinds of sentences available, "
id. § 3553 (a) (3), and the sentencing court's duty to impose a
sentence "sufficient, but not greater than necessary" to serve the
§ 3553 (a) (2) purposes of sentencing, id. § 3553 (a). The court
stated:

I believed the evidence just like the jury did and
this series of crimes couldn't get more serious,
couldn't get more brutal, more cold-blooded, couldn't
get more damaging to the community, all the drug
trafficking and the murders.

There is no appropriate sentence for you, sir,
but life in prison. An argument can be made that
this maximum sentence falls short of the need to
reflect the seriousness of your crimes, but it is the
maximum sentence.

(S.Tr. 16.) We see no indication that the district court did not
consider all of the requisite § 3553 (a) factors; and it plainly
explained why it sentenced Payne to imprisonment for life.

# CONCLUSION

We have considered all of Payne's arguments on this appeal
and have found them to be without merit. The judgment of the
district court is affirmed.

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August Term, 2008 Decided: January 5, 2010 Docket No. 08-0837-cr v. - ADRIAN PAYNE, also known as "A, "

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