USA v. Calderon-Valcarcel et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
LAVON PARKS and JAMES C. PARKS,
Defendants.
19-CR-87-LJV-JJM
DECISION & ORDER
On December 29, 2023, a jury convicted the defendants, Lavon Parks (“Lavon”)
and James C. Parks (“James”), of various drug and firearm offenses.1 See Docket Item
1057. More specifically, the jury convicted both Lavon and James of conspiring to
possess narcotics—including at least 5 kilograms of cocaine, at least 400 grams of
fentanyl, and at least 100 grams of heroin—with the intent to distribute them (count 1);
discharging a firearm in furtherance of a drug trafficking crime (count 4); and
discharging a firearm causing death (count 5). See id. The jury also convicted Lavon of
attempting to possess 500 grams or more of cocaine with the intent to distribute it
(count 2) and possessing a firearm in furtherance of a drug trafficking crime (count 3).
See id. This Court subsequently granted Lavon’s motion for a judgment of acquittal
under Federal Rule of Criminal Procedure 29 on count 2 based on improper venue.
See Docket Item 1237 at 15-22.
The United States Probation Office filed a Presentence Investigation Report
(“PSR”) for each defendant calculating the United States Sentencing Guidelines
1 Because the defendants have the same last name, the Court will refer to them
by their first names solely for ease of reference.
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(“U.S.S.G.” or “Guidelines”) range. Docket Items 1232 (James)2 and 1241 (Lavon).
Both PSRs applied the first-degree murder cross reference. Docket Item 1232 at ¶ 37;
Docket Item 1241 at ¶ 41; see U.S.S.G. § 2D1.1(d)(1) (instructing that if victim was
killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had
such killing taken place within the jurisdiction of the United States, apply section 2A1.1
(first-degree murder) if resulting offense level is greater than that determined under
section 2D1.1). The first-degree murder cross reference results in a base offense level
of 43, see U.S.S.G. § 2A1.1(a), which carries a Guidelines range of life regardless of
the criminal history category, see id., Ch. 5 Pt. A, Sentencing Table.
Each defendant objected to his PSR’s application of the first-degree murder
cross reference. See Docket Item 1249 at 7-20; Docket Item 1257 at 4-5; Docket Item
1270 at 36-38. Each also objected to his PSR’s inclusion of various drug transactions
as part of his relevant conduct. See Docket Item 1249 at 20-33; Docket Item 1257 at 2-
4; Docket Item 1270 at 30-34. In addition, Lavon argued that his criminal history
category should be reduced because it “overrepresents the seriousness of his past
record.” See Docket Item 1249 at 33-37. And James argued that if the Court does not
apply the first-degree murder cross reference, he is entitled to a downward adjustment
under U.S.S.G. § 3B1.2 for being a minimal participant. See Docket Item 1270 at 35-
36.3
2 James’s report was revised several times. See Docket Items 1174 and 1230.
Docket Item 1232 is the most recent version.
3 In addition, each defendant objected to his PSR’s inclusion of numerous
specific facts. The Court will not rule on each of these objections individually, as it is not
the Court’s role to rewrite the PSR. See United States v. Reiss, 186 F.3d 149, 156-57
(2d Cir. 1999) (explaining that district court is not required to “perform a line-by-line
review of the PSR”). If there are any specific issues that the parties think this Court
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The defendants also moved to dismiss counts 3 and 4 as multiplicitous of count
5. Docket Items 1244 and 1245. The government has indicated that it “will move at
sentencing to vacate the defendants’ convictions on count [4] and request that the Court
enter judgment [only] on count [5].” Docket Item 1258 at 3 (some capitalization
omitted). Thus, the motions to dismiss count 4 appear to be moot. But the government
asserts that this Court should maintain the convictions and sentence Lavon on both
counts 3 and 5. Id. at 4-7.
For the reasons that follow, this Court denies the defendants’ motions to dismiss
and overrules their objections to the first-degree murder cross reference. The Court
also overrules Lavon’s objection to his criminal history category. With respect to
relevant conduct, this Court finds by a preponderance of the evidence that each
defendant is responsible for at least the amount of drugs the jury found beyond a
reasonable doubt; that is: 5 kilograms or more of cocaine, 400 grams or more of
fentanyl, and 100 grams or more of heroin. See Docket Item 1057 at 2-7. The Court
further finds that in determining the defendants’ sentences, it may consider drug
quantities that were suppressed4 and for which Lavon was acquitted in count 2. Finally,
should address and did not in this decision, the Court will hear from the parties and
address those issues at sentencing.
4 In 2022, this Court granted the defendants’ motion to suppress a large quantity
of drugs found in their car during a traffic stop in Tennessee. See Docket Item 573 at 5-
25.
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the Court grants the defendants’ request to have the Probation Office calculate the drug
quantity that it deems relevant conduct for each defendant.5
The United States Probation Office shall revise the PSRs consistent with this
decision by January 20, 2026. Each defendant shall file any objections to his revised
PSR (that were not already raised) by January 23, 2026. The government may
respond by January 26, 2026. And, if necessary, the Court will hear argument at the
defendants’ sentencings on January 28, 2026.
LEGAL PRINCIPLES
I. 	SENTENCING GUIDELINES CALCULATION
The now-advisory Guidelines, see United States v. Booker, 543 U.S. 220 (2005),
are the requisite starting point for a district court’s determination of a sentence. See
Rita v. United States, 551 U.S. 338, 350 (2007). Under the Guidelines, a defendant’s
sentencing range is calculated by determining a base offense level; applying any
adjustments to that level based on specific offense characteristics, the defendant’s role
in the offense, and whether the defendant accepted responsibility for the offense; and
then factoring in the defendant’s criminal history category. See U.S.S.G. § 1B1.1(a).
II. 	EVIDENTIARY STANDARDS IN SENTENCING
Even though a defendant is adjudged guilty by the time of sentencing, the
defendant’s due process rights are not checked at the courtroom door. See United
5 Because the Court overrules the objections regarding the first-degree murder
cross reference, it need not decide whether James is entitled to the minimal participant
reduction.
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States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir. 1986). On the contrary, the sentencing
court must balance the defendant’s procedural rights against the defendant’s guilt and
the need to impose a fair punishment. See id.
Under Federal Rule of Criminal Procedure 32, prior to sentencing, a court must
“rule on [any] dispute [regarding the PSR] or determine that a ruling is unnecessary
either because the matter will not affect sentencing[] or because the court will not
consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). A court is not required
to “perform a line-by-line review of the PSR,” however, as long as it “resolve[s] the
substantive challenges” to it. United States v. Reiss, 186 F.3d 149, 156-57 (2d Cir.
1999).
At a trial, the government must prove a defendant’s guilt beyond a reasonable
doubt; at a sentencing hearing, on the other hand, the government must prove the
relevant facts only by a preponderance of the evidence. See United States v. Salazar,
489 F.3d 555, 557 (2d Cir. 2007) (per curiam). A sentencing court has broad discretion
in deciding what information to consider: So long as the defendant is afforded an
opportunity to respond and information has some indicia of reliability to ensure that it is
likely accurate, that information is fair game, and the formal rules of evidence do not
apply. United States v. Concepcion, 983 F.2d 369, 387-88 (2d Cir. 1992); U.S.S.G. §
6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing
determination, the court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial, provided that the information
has sufficient indicia of reliability to support its probable accuracy.”). By the same
token, “[u]nreliable allegations shall not be considered” by the sentencing court.
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U.S.S.G. § 6A1.3 cmt. And if the reliability of certain information is challenged,
corroborating evidence can help the court determine whether the information is, in fact,
reliable. United States v. Romano, 825 F.2d 725, 728-29 (2d Cir. 1987); United States
v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978).
III. 	RELEVANT CONDUCT
“[I]n the case of a jointly undertaken criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the defendant in concert with others, whether or
not charged as a conspiracy),” relevant conduct includes:
all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal
activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that
criminal activity[]
that 	occurred 	during 	the 	commission 	of 	the 	offense 	of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.
U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Molina, 106 F.3d 1118, 1121 (2d
Cir. 1997) (“Under the relevant conduct principles of subsection 1B1.3(a)(1)(B), all
‘reasonably foreseeable acts and omissions of others’ in furtherance of the conspiracy
may be taken into account to determine a defendant’s sentence.”).
Thus, to determine relevant conduct with respect to jointly undertaken criminal
activity, “the district court must make two particularized findings.” United States v.
Mulder, 273 F.3d 91, 118 (2d Cir. 2001). “First, it must determine ‘the scope of the
criminal activity agreed upon by the defendant.’” Id. (quoting United States v. Studley,
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47 F.3d 569, 574 (2d Cir. 1995)). “Second—and only if it finds that the scope of the
activity to which the defendant agreed was sufficiently broad to include the conduct in
question—the court ‘must make a particularized finding as to whether the activity was
foreseeable to the defendant.’” Id. (quoting Studley, 47 F.3d at 574). With respect to
drug quantity, “[t]he defendant need not have actual knowledge of the exact quantity of
narcotics involved in the entire conspiracy; rather, it is sufficient if he could reasonably
have foreseen the quantity involved.” United States v. Snow, 462 F.3d 55, 72 (2d Cir.
2006).
DISCUSSION6
I. 	MULTIPLICITY OF COUNTS 3, 4, AND 5
A. 	Dismissal of All Three Counts
In addition to their arguments regarding sentencing, the defendants argue that
government fundamentally violated their rights by charging counts 3, 4, and 5 as
separate counts. 	See, e.g., Docket Item 1276 at 13-14. Therefore, they say, all three
counts should be dismissed. See id. This Court disagrees.
The Second Circuit has held that “[w]here there has been no prior conviction or
acquittal, the Double Jeopardy Clause does not protect against simultaneous
prosecutions for the same offense, so long as no more than one punishment is
eventually imposed.” United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006).
Accordingly, when “[n]o convictions have been entered . . . , the Double Jeopardy
6 The Court assumes the reader’s familiarity with the factual background and will
recount only those facts necessary to explain its opinion.
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Clause’s guarantee against multiple punishments for the same offense has not yet been
triggered.” United States v. Polouizzi, 564 F.3d 142, 157 (2d Cir. 2009); see, e.g.,
United States v. Mostafa, 965 F.Supp.2d 451, 464 (S.D.N.Y. 2013) (“It is well
established that the Double Jeopardy clause does not prohibit simultaneous
prosecutions for the same offense; it prohibits duplicative punishment. Accordingly,
multiplicity is properly addressed by the trial court at the sentencing stage.” (citation
omitted)); United States v. Burke, 2011 WL 2609839, at *8 (E.D.N.Y. Feb. 26, 2011)
(holding that where section 924(c) count was lesser-included offense of a section 924(j)
charge, “overlap between the two counts [wa]s no bar to their simultaneous prosecution,
and that [defendant] instead [was] entitled only to have the sentences on both counts
merged in the event he [wa]s found guilty of both”).
Moreover, the Court does not see any undue prejudice of charging overlapping
offenses as separate counts as long as a defendant is not ultimately sentenced twice for
the same offense. In fact, as the government noted at oral argument, counts like these
often are charged separately; and if the jury convicts on multiplicitous counts, the court
chooses one on which to sentence. See United States v. Gillon, 2023 WL 8177113, at
*1 (2d Cir. Nov. 27, 2023) (summary order) (remanding to this Court to choose which
conviction and sentence to vacate where defendant was sentenced on violation of 21
U.S.C. § 848 and lesser-included offense under 21 U.S.C. § 846).
B. 	Counts 3 and 5
There are two issues before the Court with respect to counts 3 and 5. First, the
parties dispute whether count 3 is a lesser-included offense of count 5. Compare
Docket Item 1245 at 6-7, with Docket Item 1258 at 4-7. Second—and regardless of the
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answer to the first question—the parties disagree about whether the Second Circuit’s
decision in United States v. Barrett, 102 F.4th 60 (2d Cir. 2024), cert. granted in part,
145 S. Ct. 1307 (2025), requires this Court to sentence Lavon on both counts.
Compare Docket Item 1276 at 8-13, with Docket Item 1258 at 2-5. The Court will
address each issue in turn.
1. 	Lesser-Included Offense
Count 3 charged Lavon with possessing a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Docket Item 712 at 2-3.
Count 5 charged him with discharging a firearm in furtherance of a drug trafficking crime
causing death in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 924(j)(1)-(2). Docket Item
712 at 3-4. The government argues that counts 3 and 5 are “distinct” offenses because
they consisted of different conduct, including different firearms. See Docket Item 1275
at 2; Docket Item 1258 at 7. Thus, the government says—even aside from its
arguments under Barrett—this Court may sentence on both counts without running afoul
of the Double Jeopardy Clause. See Docket Item 1275 at 2.
Lavon counters that because counts 3 and 5 are based on the same predicate
offense—the narcotics conspiracy charged in count 1—count 3 is a lesser-included
offense of count 5. See Docket Item 1271 at 32. This Court agrees with him.
The Second Circuit has held that “the appropriate unit of prosecution under
[section] 924(c)(1) is the predicate offense.” United States v. Mejia, 545 F.3d 179, 204-
05 (2d Cir. 2008). In other words, “[o]nly where the defendant commits multiple drug-
trafficking crimes or violent crimes, and the government can link the firearms to those
crimes, may the government prosecute for multiple violations of [section] 924(c)(1).”
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United States v. Lindsay, 985 F.2d 666, 674 (2d Cir. 1993) (citation omitted). By
contrast, “[w]here the government links multiple firearms to a single crime, only one
[section] 924(c)(1) violation occurs.” Id. Therefore, even if the government is correct
that the conduct underlying counts 3 and 5 is distinct, because they are based on the
same predicate offense—count 1—count 3 is a lesser-included offense of count 5.
2. 	United States v. Barrett
That does not end the inquiry, however. In its 2024 decision in Barrett, the
Second Circuit held that section “924(c)(1) and [section] 924(j) crimes are separate
offenses for which Congress has clearly authorized cumulative punishments . . . even
when . . . the defendant’s [section] 924(c) firearms predicate count is a lesser-included
offense of his [section] 924(j) murder count.” 102 F.4th at 89. So Barrett precludes
Lavon’s argument that count 3 should be vacated on Double Jeopardy grounds. And—
unless and until the Supreme Court says otherwise—Barrett is binding on this Court.
Lavon notes that “Barrett does not address—and does not disturb—the separate
line of Second Circuit precedent governing multiplicitous [section] 924(c) charges
predicated on the same underlying offense (here [c]ounts 3 & 4).” Docket Item 1276 at
8. Lavon is correct that counts 3 and 4—both section 924(c) charges based on the
same predicate offense—are multiplicitous, and this Court therefore could not sentence
him on both of them. See Mejia, 545 F.3d at 204-05; Lindsay, 985 F.2d at 674. The
government already has agreed to move to dismiss count 4, however. See Docket Item
1258 at 3. And Lavon’s argument does not affect the viability of count 5, which charged
a violation of section 924(j). See Barrett, 102 F.4th at 89.
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Lavon also argues that the Supreme Court is likely to overturn Barrett in the
coming months. See Docket Item 1276 at 12-13. He may well be correct. But rather
than attempt to read the tea leaves, this Court is bound to follow Second Circuit
precedent unless and until it is no longer good law. And if Lavon is correct and Barrett
is ultimately overturned, his counsel has ably preserved that issue for appeal.
II. 	FIRST-DEGREE MURDER CROSS REFERENCE
Regarding the first-degree murder cross reference, the defendants argue that the
government’s evidence was insufficient to show the premeditation required for first-
degree murder under 18 U.S.C. § 1111. See Docket Item 1249 at 7-20; Docket Item
1270 at 36-38; see also United States v. Mulder, 273 F.3d 91, 117 (2d Cir. 2001)
(explaining that “premeditated killing . . . is murder in the first degree” (alteration in
original) (quoting 18 U.S.C. § 1111(a)). This Court disagrees. In fact, the government
presented ample evidence at trial that Kevin Turner’s murder was not a heat-of-the-
moment killing but rather a planned event. And that is especially so given the
preponderance of the evidence standard that applies at sentencing. See Salazar, 489
F.3d at 557.
For example, Timothy Harris and Michelle Edwards testified that when Lavon and
James came to their residence on the day of the shooting, Lavon asked whether Harris
knew “a guy named Buffalo.” See Docket Item 1073 at 9; Docket Item 1020 at 9-10.
Harris later learned that “Buffalo” was one of Turner’s nicknames. Docket Item 1073 at
19-20, 66. At Lavon’s request, Harris and Edwards then took a ride in a truck with
Lavon and James, who was driving. See Docket Item 1020 at 12-14. While they were
riding around, Lavon asked Harris whether he knew of any “drug houses.” Docket Item
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1073 at 9; see Docket Item 1020 at 16. After a short drive “around the corner,” they
returned to the house where Harris and Edwards lived. See Docket Item 1073 at 9-11.
Edwards saw a gun on the front seat “[i]n between [Lavon] and [James],” and as she
exited the truck, she told Harris what she saw. Docket Item 1020 at 17-18, 41-42;
Docket Item 1073 at 12-13.
Lavon then told Edwards “to give him a call” when they “purchased some drugs.”
Docket Item 1020 at 19. When they got back to their house, Edwards and Harris texted
Turner and asked him to bring them $20 worth of crack cocaine. Docket Item 1073 at
13-14; Docket Item 1020 at 19-21. At Edwards’s direction, Harris then did what Lavon
had told them to do: he texted Lavon to “[c]ome now.” Docket Item 1073 at 15; see
Docket Item 1020 at 19-20. Turner soon delivered the crack cocaine to Harris and
Edwards, and almost immediately after Turner left, Harris and Edwards heard four
shots. Docket Item 1073 at 16; Docket Item 1020 at 22-23. When they looked out their
window, they saw that Turner had been shot on their porch. Docket Item 1073 at 16;
Docket Item 1020 at 22-23.
Additionally, video surveillance showed a pickup truck that Detective Troy Earp
testified belonged to James arriving at a Coastal gas station—approximately two blocks
from the murder scene and one block from Lavon’s apartment—about 40 minutes
before the shooting. See Docket Item 1026 at 70-71, 85-86, 95. James went inside the
gas station; looked at the video monitors, which show all the angles of video
surveillance; and then exited the gas station without purchasing anything. See id. at 93-
94. And at approximately 4:28 p.m., a few minutes before the murder, other video
surveillance showed James’s truck pulling into a Valero gas station about a block from
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the shooting, stopping in the parking lot in front of a camera, and then pulling away.
See id. at 94-97.
All that suggests that Lavon did not kill Turner impulsively. In particular, the fact
that Lavon told Edwards to contact him when she and Harris had purchased drugs, and
then arrived and killed Turner shortly after Edwards and Harris told him to “come now,”
shows some premeditation. And with respect to James, the evidence of his driving
Lavon around with Harris and Edwards while they looked for drug houses and talked
about Turner, as well as the evidence of his countersurveillance at the gas stations,
show that he participated in the planning process—at least under the preponderance of
the evidence standard that applies at sentencing.
In sum, the government proved by at least a preponderance of the evidence that
Lavon and James were looking for Turner and devised a way to find him using Edwards
and Harris. And the jury found beyond a reasonable doubt that Lavon killed Turner and
that James aided and abetted Lavon. That is enough to apply the first-degree murder
cross reference.
III. 	RELEVANT CONDUCT
Because the Court overrules the objections to the first-degree murder cross
reference, the drug weight included in the defendants’ relevant conduct does not impact
their Guidelines calculations. But they nonetheless argue that drug weight still is an
important factor for this Court to consider in determining their sentences. See, e.g.,
Docket Item 1271 at 9-10. Because this Court agrees that the amount of drugs
attributable to each defendant might impact the sentencing factors under 18 U.S.C. §
3553(a), it weighs in on that issue.
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As an initial matter, the Court rejects the defendants’ argument that it cannot—or
should not—consider evidence of the drug quantities that were suppressed or that were
charged in count 2 on which Lavon was acquitted on venue grounds. See, e.g., Docket
Item 1271 at 17-18. As the defendants acknowledge, “[w]hile Amendment 826 [to the
Guidelines] prohibits acquitted conduct from being used by federal judges in
determining offense levels during their sentencing guidelines computations, federal
judges can still consider acquitted conduct overall when determining the appropriate
sentence.” Id. (emphasis added); see 18 U.S.C. § 3661 (“No limitation shall be placed
on the information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and consider for
the purpose of imposing an appropriate sentence.”); see also United States v. Tejada,
956 F.2d 1256, 1258 (2d Cir. 1992) (“We hold that a sentencing judge should consider
illegally obtained evidence where it was not seized expressly to enhance the
sentence.”). Thus, the Court may consider drug quantities from the suppressed
Tennessee stop and on which Lavon was acquitted on count 2—not in computing the
Guidelines range—but in determining the appropriate sentence.
The Court further finds that based on the evidence presented at trial and the
jury’s verdict, both defendants are responsible for at least the minimum amount of drug
weight that the jury found was reasonably foreseeable to them: 5 kilograms of cocaine,
400 grams of fentanyl, and 100 grams of heroin. See Docket Item 1057 at 2-7. The
Court agrees with the defendants that it is not bound at sentencing by the jury’s verdict:
Unlike the inquiry on a Rule 29 motion, this Court is not required at sentencing to view
the evidence in the light most favorable to the government; it is instead tasked with
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evaluating the evidence independently. That being said, the preponderance of the
evidence standard at sentencing is far lower than the beyond a reasonable doubt
standard applicable at trial and on a Rule 29 motion. See Salazar, 489 F.3d at 557.
And the same evidence that caused this Court to deny the defendants’ Rule 29 motions
with respect to the drug quantity amounts, see Docket Item 1237 at 4-14, leads this
Court to find those amounts supportable on an independent review—at least by a
preponderance of the evidence.
The defendants also argue that certain witnesses, such as Alphonso Diggs, were
not credible and that their testimony therefore should not be included in the PSRs. See,
e.g., Docket Item 1249 at 15-17. This Court disagrees. The Court heard that testimony
and will credit it for what the Court thinks it is worth. But none of it was so
“fundamentally compromised,” see id. at 16, that it should be excised from the PSR.7
The Court will, however, grant the defendants’ request to have the Probation
Office calculate the drug weight that the office believes should be included in each
defendant’s relevant conduct. And, if necessary, the Court will hear and decide any
further objections to those calculations at the defendants’ sentencings.
7 The defendants rely on United States v. Juwa, 508 F.3d 694, 702 (2d Cir.
2007), to support their argument that “a sentencing court may not rely on
uncorroborated statements from a witness whose credibility is fundamentally
compromised.” Docket Item 1259 at 16 (citing Juwa, 508 F.3d at 702). Juwa does not
stand for the proposition cited and is inapposite. There, the Second Circuit found that
the district court had erred in relying on charges in a “bare-bones indictment” in the
defendant’s state case, which “without more, [wa]s insufficient to support a factual
underpinning for sentencing purposes.” Juwa, 508 F.3d at 701. The district court had
opted not to consider a victim impact statement from the alleged victim in the state case
following defense counsel’s objection that the statement was “not [from] a victim of the
federal offense.” Id. at 697. That is entirely different than this Court’s considering
testimony of sworn witnesses whom the Court saw testify at the defendants’ federal
trial.
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IV. 	LAVON’S CRIMINAL HISTORY CATEGORY
The PSR gave Lavon seven criminal history points, placing him in Criminal
History Category IV. Docket Item 1241 at ¶¶ 63-64. But, Lavon says, “if either [his]
marijuana or menacing misdemeanor conviction was not counted, the resulting 6 points
would move him into Criminal History Category III.” Docket Item 1249 at 35. Thus, he
says that his “criminal history calculation overrepresents the seriousness of his past
record” and that he is entitled to a reduced criminal history category under U.S.S.G.
§ 4A1.3. Docket Item 1249 at 35. The government counters that “[s]urely, the
downward departure calculated in [section] 4A1.3(b) was not intended for violent
murderers with a history of drug trafficking.” Docket Item 1259 at 3-4.
Although this Court questions the government’s contention that the current
offense is relevant to the criminal history category, it also is not convinced that the
PSR’s calculation of Lavon’s criminal history “significantly overrepresents the
seriousness of [that] criminal history.” See U.S.S.G. § 4A1.3. And regardless, as the
government observes, see Docket Item 1259 at 4, because this Court overrules the
objection to the first-degree murder cross reference, Lavon’s Guidelines are the same
whether his criminal history category is III or IV: life, see U.S.S.G. Ch. 5 Pt. A,
Sentencing Table. Thus, this Court overrules that objection to the PSR.
CONCLUSION
For the reasons stated above, this Court denies the defendants’ motions to
dismiss and overrules their objections to the first-degree murder cross reference. The
Court also overrules Lavon’s objection to his criminal history category. With respect to
relevant conduct, this Court finds by a preponderance of the evidence that each
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defendant is responsible for at least the amount of drugs found by the jury beyond a
reasonable doubt; that is: 5 kilograms or more of cocaine, 400 grams or more of
fentanyl, and 100 grams or more of heroin. See Docket Item 1057 at 2-7. The Court
further finds that it may consider drug quantities that were suppressed and of which
Lavon was acquitted in count 2 not in computing the Guidelines range but in applying
the factors under 18 U.S.C. § 3553(a) and determining the appropriate sentence. In its
revised PSRs, the Probation Office shall calculate what it finds to be the drug quantity
that qualifies as relevant conduct for each defendant.
The United States Probation Office shall revise the PSRs accordingly by
January 20, 2026. The defendants shall file any additional objections to the revised
PSRs (that is, objections that were not already raised) by January 23, 2026. The
government may respond by January 26, 2026. If necessary, the Court will hear
argument at the defendants’ sentencings on January 28, 2026.
SO ORDERED.
Dated: 	January 13, 2026
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
Case 1:19-cr-00087-LJV-JJM Document 1277 Filed 01/13/26 Page 17 of 17