United States v. Robinson

14-809-cr
United States v. Robinson
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2014 3
(Argued: March 25, 2015 Decided: August 26, 2015) 4
Docket No. 14-809-cr 5
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 6
UNITED STATES OF AMERICA, 7
8 Appellee, 9
10 v. 11
12 SHARIF ROBINSON, 13
14 Defendant-Appellant, 15
16 MARCUS HUTCHINSON, 17
18 Defendant. 19
20 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 21
22 B e f o r e: WINTER, LIVINGSTON, and CHIN, Circuit Judges. 23
Appeal from a conviction after a guilty plea, in the United 24
States District Court for the Eastern District of New York 25
(Joanna Seybert, Judge), to aiding and abetting carjacking and 26
the brandishing of a firearm during a crime of violence. On 27
appeal, appellant challenges the sufficiency of the evidence 28
underlying his plea in light of Rosemond v. United States, 134 29
S.Ct. 1240 (2014), and the failure of the district court to 30
depart downwardly from the Sentencing Guidelines. We affirm. 31
1

-- 1 of 11 --

MITCHELL A. GOLUB, Golub & Golub, 1 LLP, New York, New York, for 2 Defendant-Appellant. 3
4 MICHAEL P. CANTY, Assistant United 5 States Attorney, for Kelly T. 6 Currie, Acting United States 7 Attorney, Eastern District of New 8 York, Brooklyn, New York, for 9 Appellee. 10
11 WINTER, Circuit Judge: 12
Sharif Robinson appeals from his conviction and sentence 13
after pleading guilty before Judge Seybert to aiding and 14
abetting, 18 U.S.C. § 2: (i) carjacking, in violation of 18 15
U.S.C. § 2119; and (ii) the brandishing of a firearm during a 16
crime of violence, i.e., the carjacking, in violation of 18 17
U.S.C. § 924(c). Appellant challenges the sufficiency of the 18
evidence supporting his plea in light of Rosemond v. United 19
States, 134 S. Ct. 1240 (2014), and asks us to vacate the plea 20
and conviction. 21
We hold that his conviction for aiding and abetting a 22
violation of Section 924(c) was supported by his admission that 23
he knew that a firearm was being used during the carjacking and 24
thereafter aided and abetted the carjacking. Alternatively, 25
appellant attacks the procedural reasonableness of his sentence. 26
We hold that the district court did not err in failing to depart 27
downwardly from the Sentencing Guidelines because of appellant’s 28
confinement in decrepit and unsafe conditions of confinement at 29
the Nassau County Correctional Center. Accordingly, we affirm. 30
2

-- 2 of 11 --

BACKGROUND 1
Based on the colloquy accompanying the guilty plea, the 2
following facts were the basis for appellant’s conviction. 3
On August 26, 2012, appellant was "hanging out" with Marcus 4
Hutchinson and two other men on Albemarle Avenue in Hempstead, 5
New York, when they observed a Cadillac turning the corner to 6
Nostrand Place. Hutchinson, recognizing the male driver, left 7
the group, telling the others that he was going to rob the 8
driver. No mention was made of the use of a gun. 9
Hutchinson followed the car and disappeared around the 10
corner, but the driver retreated to a nearby house. Hutchinson 11
then decided to steal the Cadillac, in which a female passenger 12
remained. As this confrontation was happening, appellant 13
"decided to go around the corner to make sure everything was all 14
right." J. App. at 36. After rounding the corner, appellant saw 15
Hutchinson pointing a gun at the Cadillac's female passenger, who 16
“was getting out of the car.” J. App. at 41. Appellant told 17
Hutchinson to "put the gun away." J. App. at 41-42. Hutchinson 18
did so; the female passenger fled; and appellant and Hutchinson 19
then drove off in the vehicle. They were soon apprehended. 20
Appellant was indicted for aiding and abetting, under 18 21
U.S.C. § 2: (i) carjacking, in violation of 18 U.S.C. § 2119; 22
and (ii) brandishing a firearm during a crime of violence, i.e., 23
the carjacking, in violation of 18 U.S.C. § 924(c). 24
3

-- 3 of 11 --

During his plea colloquy, appellant stated that he had been 1
initially unaware that Hutchinson was planning to use a gun 2
during the robbery. Appellant admitted that, at all pertinent 3
times, he knew that a robbery was intended and that the female 4
passenger was involuntarily surrendering the Cadillac. He also 5
acknowledged that he learned that the gun was being used to take 6
the vehicle, although he did tell Hutchinson to put the gun away 7
when he saw it. 8
During the colloquy, the prosecutor noted that appellant did 9
not "turn[] and run[] the other way" after realizing that a gun 10
was being used. J. App. at 40. Instead, he continued to join in 11
as a reinforcement in the stealing of the vehicle. The district 12
judge asked appellant if he agreed with the version of events as 13
stated by the prosecutor, and appellant replied "yes." After 14
appropriate warnings to appellant of the consequences of pleading 15
guilty, the district judge accepted the plea. 16
On February 28, 2014, the district court sentenced appellant 17
to 28 months of imprisonment on the aiding and abetting a 18
carjacking count and 84 months of imprisonment on the aiding and 19
abetting the brandishing of a firearm during a crime of violence 20
count. At sentencing, appellant's counsel requested that the 21
district court downwardly depart from the applicable Sentencing 22
Guidelines based on the conditions of confinement at Nassau 23
County Correctional Center ("NCCC"). Counsel alleged, inter 24
alia, that food preparation takes place under unsanitary 25
4

-- 4 of 11 --

conditions; access to the law library is restricted to only 45 1
minutes a day; heating systems are non-existent; inmate housing 2
is substandard with water leaks and roach infestations; and 3
unaffiliated inmates are not segregated from violent gang 4
members. The district court denied the request, noting that it 5
had past experience with cases out of NCCC. The court also 6
suggested that counsel had not provided enough evidence to 7
warrant a downward departure. The sentence described above was 8
then imposed. 9
On March 5, 2014, the Supreme Court decided Rosemond v. 10
United States, 134 S. Ct. 1240 (2014), clarifying the 11
relationship of the aiding and abetting statute, 18 U.S.C. § 2, 12
and 18 U.S.C. § 924(c)'s prohibition against using a firearm 13
during a crime of violence. On appeal, appellant argues that his 14
plea lacked a sufficient factual basis under Rosemond because he 15
was unaware that Hutchinson planned to use a gun in the 16
carjacking until he turned the corner and saw the weapon. 17
Alternatively, appellant attacks the procedural reasonableness of 18
his sentence given the district court’s failure to depart from 19
the Sentencing Guidelines. 20
DISCUSSION 21
a) Sufficiency of the Evidence in Light of Rosemond 22
Under Fed. R. Crim. P. 11, the district court may accept a 23
guilty plea only if the plea has a "factual basis." Fed. R. 24
Crim. P. 11(b)(3). The court is not required “to weigh evidence 25
5

-- 5 of 11 --

to assess whether it is even more likely than not that the 1
defendant is guilty." United States v. Maher, 108 F.3d 1513, 2
1524 (2d Cir. 1997). Instead, the district court must simply 3
satisfy itself that "the conduct to which the defendant admits is 4
in fact an offense under the statutory provision under which he 5
is pleading guilty." Id.; see also Fed. R. Crim. P. 11(f). 6
In making this inquiry, the district court can accept a 7
defendant's own admissions as true. Maher, 108 F.3d at 1521. 8
The court can rely on the defendant’s admissions and any other 9
evidence placed on the record at the time of the plea, including 10
evidence obtained by inquiry of either the defendant or the 11
prosecutor. Irizarry v. United States, 508 F.2d 960, 967 (2d 12
Cir. 1974); see also United States v. Adams, 448 F.3d 492, 499 13
(2d Cir. 2006). But, any plea colloquy must involve more than 14
simply "a reading of the indictment to the defendant coupled with 15
his admission of the acts described in it." United States v. 16
McFadden, 238 F.3d 198, 201 (2d Cir. 2001) (internal quotation 17
marks omitted). 18
We review objections to the sufficiency of a guilty plea, 19
where -- as here -- the defendant raised no objection below, for 20
plain error. United States v. Vonn, 535 U.S. 55, 62-63 (2002); 21
see also United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 22
2005). We find no error here, much less plain error. 1
23
1 As noted in United States v. Needham, we have “applied a modified plain error
analysis in cases where, as here, the source of plain error is a supervening
decision,” whereby “the government, not the defendant, bears the burden to demonstrate
6

-- 6 of 11 --

Under Section 924(c), it is a crime to brandish a firearm 1
"during and in relation to any crime of violence." 18 U.S.C. § 2
924(c)(1)(A). For its part, the federal aiding and abetting 3
statute punishes, as a principal, an individual that "aids, 4
abets, counsels, commands, induces or procures" the commission of 5
an underlying federal offense. 18 U.S.C. § 2. In Rosemond, the 6
Supreme Court explained “what it takes to aid and abet a § 924(c) 7
offense." 134 S. Ct. at 1245. 8
The Court noted that the aiding and abetting statute 9
requires both an affirmative act furthering the underlying 10
offense and an intent to facilitate that offense's commission. 11
Id. The Supreme Court emphasized that the affirmative act 12
requirement is met when the defendant facilitates any element of 13
the underlying offense. Id. at 1247. Therefore, a defendant’s 14
conduct can satisfy the affirmative act requirement of aiding and 15
abetting the Section 924(c) offense, even if the act did not 16
specifically facilitate the use of the firearm. Id. at 1248. 17
The intent requirement is stricter than the facilitation 18
requirement in that "the intent must go to the specific and 19
entire crime charged -- so here, to the full scope (predicate 20
crime plus gun use) of § 924(c)." Id. It is true that the 21
that the error . . . was harmless.” 604 F.3d 673, 678 (2d Cir. 2010) (internal
quotation marks and citations omitted). This standard may be incorrect in light of
Johnson v. United States, where the Supreme Court applied plain error review when the
error stemmed from a change in Supreme Court law decided after the defendant’s
conviction. See 520 U.S. 461, 466 (1997). We “need not resolve this open question
[here] because, whether plain error or some modified approach is applied, our
conclusions would be the same.” Needham, 604 F.3d at 678.
7

-- 7 of 11 --

requisite intent to use a gun is shown only when a defendant has 1
prior knowledge that a firearm will be used. However, the 2
requisite prior knowledge "means knowledge at a time the 3
accomplice can do something with it -- most notably, opt to walk 4
away." Id. at 1249-50. In other words, "[a] defendant manifests 5
that greater intent, and incurs the greater liability of 6
§ 924(c), when he chooses to participate in a [violent crime] 7
knowing it will involve a firearm; but he makes no such choice 8
when that knowledge comes too late for him to be reasonably able 9
to act upon it." Id. at 1251. And, a defendant can reasonably 10
walk away upon learning of a gun's use or planned use, so long as 11
withdrawing would not "increase the risk of gun violence." See 12
id. 13
At the time of appellant’s plea, there was a sufficient 14
factual basis on the record for the district court to accept 15
appellant's plea. The affirmative act requirement is easily met 16
because appellant joined Hutchinson in taking the car. The 17
intent requirement is also satisfied because, upon learning that 18
a gun was being brandished, appellant, as he conceded in his plea 19
colloquy, had a chance to "turn[] and run[] the other way" but 20
did not. J. App. at 40. See id. at 1250 n.9 (noting that 21
advance knowledge can be inferred "if a defendant continues to 22
participate in a crime after a gun was displayed or used by a 23
confederate"). Robinson saw the gun as he rounded the corner, 24
and joined the carjacking while Hutchinson was still 25
8

-- 8 of 11 --

“brandishing” the gun within the meaning of § 924(c)(4). Instead 1
of leaving then and there, he continued to participate. Thus, 2
there was a sufficient “temporal and relational conjunction,” id. 3
at 1248, between the predicate crime and the use of the firearm 4
to support a § 924(c)(1)(A)(ii) conviction under an aiding and 5
abetting theory of liability. Finally, there is no reason on 6
this record to believe that appellant’s withdrawing would 7
increase the risk of gun violence, although Robinson could 8
certainly have argued so had he gone to trial. 9
In sum, appellant could have reasonably retreated -- but did 10
not -- and the requirement described in Rosemond was met. We 11
accordingly conclude that the district court properly accepted 12
appellant's plea. 13
b) The Sentence’s Procedural Reasonableness 14
Appellant attacks the procedural reasonableness of his 15
sentence –- arguing that the district court erred by not 16
downwardly departing from the Sentencing Guidelines given the 17
conditions of confinement at NCCC. Appellant also contends that 18
the court erred by not adequately explaining its reasons for 19
refusing to depart. We review sentences for procedural 20
reasonableness under a deferential abuse-of-discretion standard. 21
United States v. Adams, 768 F.3d 219, 224 (2d Cir. 2014). A 22
district court commits procedural error when, inter alia, it 23
"treat[s] the Guidelines as mandatory" or fails "to adequately 24
explain the chosen sentence." Gall v. United States, 552 U.S. 25
9

-- 9 of 11 --

38, 51 (2007); see also United States v. Preacely, 628 F.3d 72, 1
79 (2d Cir. 2010). The district court committed neither of these 2
errors. 3
While it is true that "pre-sentence confinement conditions 4
may in appropriate cases be a permissible basis for downward 5
departures," United States v. Carty, 264 F.3d 191, 196 (2d Cir. 6
2001), appellant provides insufficient reason to overturn the 7
district court's failure to depart from the Guidelines. 8
First, a district court's decision not to depart from the 9
Guidelines is generally unreviewable, unless it misunderstood its 10
authority to do so. Adams, 768 F.3d at 224; see also United 11
States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005) ("[A] refusal 12
to downwardly depart is generally not appealable" unless "a 13
sentencing court misapprehended the scope of its authority to 14
depart or the sentence was otherwise illegal."). And, "[i]n the 15
absence of clear evidence of a substantial risk that the judge 16
misapprehended the scope of his departure authority, we presume 17
that a sentenc[ing] judge understood the scope of his authority." 18
United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per 19
curiam) (internal quotation marks omitted). There is nothing in 20
the record suggesting that the district court misunderstood its 21
ability to depart from the Guidelines. After implying that a 22
departure would be possible, albeit a "special consideration," 23
the court listened to arguments on the merits of a downward 24
departure. 25
10

-- 10 of 11 --

Second, while the court must explain how it arrived at a 1
given sentence, it need not engage in a prolonged discussion of 2
its reasoning, especially if the matter is conceptually simple. 3
See Rita v. United States, 551 U.S. 338, 356-59 (2007). This is 4
because “we entertain a strong presumption that the sentencing 5
judge has considered all arguments properly presented to her, 6
unless the record clearly suggests otherwise.” United States v. 7
Fernandez, 443 F.3d 19, 29 (2d Cir. 2006). 8
In the present case, the district court adequately explained 9
its reasoning, noting its past experience with other NCCC 10
inmates. The court further suggested that the evidence provided 11
by appellant’s counsel was insufficient to justify a departure. 12
In any event, a district court is under no obligation to engage 13
in an express discussion of every argument made by a defendant at 14
sentencing. See United States v. Bonilla, 618 F.3d 102, 111 (2d 15
Cir. 2010). Therefore, the district court committed no 16
procedural error in its sentencing. 17
CONCLUSION 18
For the foregoing reasons, we affirm. 19
20
11

-- 11 of 11 --