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    United States v. Vyron U. Hargrett, AKA Sealed 1 Andre v. Williams, AKA Sealed 10 and Roger Mattison, AKA Sealed 14, Derrick D. Hargrett, AKA Sealed 2 Shondale L. Mable, AKA Sealed 3 Vernon W. Youngblood, Jr., AKA Sealed 4 Iris M. Stevens, AKA Sealed 5 Miles David Smith, AKA Sealed 6 David McKinney AKA Sealed 7 Richard A. Brown, AKA Sealed 8 William Sanders, AKA Sealed 9 Alvin Branch, AKA Sealed 11 Alonzo Lewis, AKA Sealed 12 John Paul Pennisi, AKA Sealed 13 and Timothy Lewis, 156 F.3d 447, 2d Cir. (1998)

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    This document summarizes an appeals case involving three defendants - Vyron Hargrett, Andre Williams, and Roger Mattison - who pleaded guilty to various narcotics offenses. Hargrett and Williams received downward departures from their sentencing guidelines ranges and argue on appeal that the district court failed to adequately explain the extent of the downward departures as required by law. The court dismisses their appeals for lack of jurisdiction. Mattison challenges aspects of his sentencing, including drug quantity, acceptance of responsibility reductions, and eligibility for safety valve provisions. The court affirms Mattison's sentence, finding that the district court did not err in its guidelines calculations or factual findings.

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    United States v. Vyron U. Hargrett, AKA Sealed 1 Andre v. Williams, AKA Sealed 10 and Roger Mattison, AKA Sealed 14, Derrick D. Hargrett, AKA Sealed 2 Shondale L. Mable, AKA Sealed 3 Vernon W. Youngblood, Jr., AKA Sealed 4 Iris M. Stevens, AKA Sealed 5 Miles David Smith, AKA Sealed 6 David McKinney AKA Sealed 7 Richard A. Brown, AKA Sealed 8 William Sanders, AKA Sealed 9 Alvin Branch, AKA Sealed 11 Alonzo Lewis, AKA Sealed 12 John Paul Pennisi, AKA Sealed 13 and Timothy Lewis, 156 F.3d 447, 2d Cir. (1998)

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    148 views7 pages
    This document summarizes an appeals case involving three defendants - Vyron Hargrett, Andre Williams, and Roger Mattison - who pleaded guilty to various narcotics offenses. Hargrett and Williams received downward departures from their sentencing guidelines ranges and argue on appeal that the district court failed to adequately explain the extent of the downward departures as required by law. The court dismisses their appeals for lack of jurisdiction. Mattison challenges aspects of his sentencing, including drug quantity, acceptance of responsibility reductions, and eligibility for safety valve provisions. The court affirms Mattison's sentence, finding that the district court did not err in its guidelines calculations or factual findings.

    Original Description:

    Filed: 1998-09-29 Precedential Status: Precedential Citations: 156 F.3d 447 Docket: 97-1205

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    This document summarizes an appeals case involving three defendants - Vyron Hargrett, Andre Williams, and Roger Mattison - who pleaded guilty to various narcotics offenses. Hargrett and Williams received downward departures from their sentencing guidelines ranges and argue on appeal that the district court failed to adequately explain the extent of the downward departures as required by law. The court dismisses their appeals for lack of jurisdiction. Mattison challenges aspects of his sentencing, including drug quantity, acceptance of responsibility reductions, and eligibility for safety valve provisions. The court affirms Mattison's sentence, finding that the district court did not err in its guidelines calculations or factual findings.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    148 views7 pages

    United States v. Vyron U. Hargrett, AKA Sealed 1 Andre v. Williams, AKA Sealed 10 and Roger Mattison, AKA Sealed 14, Derrick D. Hargrett, AKA Sealed 2 Shondale L. Mable, AKA Sealed 3 Vernon W. Youngblood, Jr., AKA Sealed 4 Iris M. Stevens, AKA Sealed 5 Miles David Smith, AKA Sealed 6 David McKinney AKA Sealed 7 Richard A. Brown, AKA Sealed 8 William Sanders, AKA Sealed 9 Alvin Branch, AKA Sealed 11 Alonzo Lewis, AKA Sealed 12 John Paul Pennisi, AKA Sealed 13 and Timothy Lewis, 156 F.3d 447, 2d Cir. (1998)

    Uploaded by

    Scribd Government Docs
    This document summarizes an appeals case involving three defendants - Vyron Hargrett, Andre Williams, and Roger Mattison - who pleaded guilty to various narcotics offenses. Hargrett and Williams received downward departures from their sentencing guidelines ranges and argue on appeal that the district court failed to adequately explain the extent of the downward departures as required by law. The court dismisses their appeals for lack of jurisdiction. Mattison challenges aspects of his sentencing, including drug quantity, acceptance of responsibility reductions, and eligibility for safety valve provisions. The court affirms Mattison's sentence, finding that the district court did not err in its guidelines calculations or factual findings.

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    of 7

    156 F.

    3d 447

    UNITED STATES of America, Appellee,


    v.
    Vyron U. HARGRETT, aka Sealed Defendant # 1; Andre V.
    Williams, aka Sealed Defendant # 10; and Roger
    Mattison, aka Sealed Defendant # 14,
    Defendants-Appellants,
    Derrick D. Hargrett, aka Sealed Defendant # 2; Shondale L.
    Mable, aka Sealed Defendant # 3; Vernon W. Youngblood, Jr.,
    aka Sealed Defendant # 4; Iris M. Stevens, aka Sealed
    Defendant # 5; Miles David Smith, aka Sealed Defendant # 6;
    David McKinney, aka Sealed Defendant # 7; Richard A.
    Brown, aka Sealed Defendant # 8; William Sanders, aka
    Sealed Defendant # 9; Alvin Branch, aka Sealed Defendant #
    11; Alonzo Lewis, aka Sealed Defendant # 12; John Paul
    Pennisi, aka Sealed Defendant # 13 and Timothy Lewis,
    Defendants.
    Docket Nos. 97-1205, 97-1277, 97-1287.

    United States Court of Appeals,


    Second Circuit.
    Argued Feb. 25, 1998.
    Decided Sept. 29, 1998.

    Grant C. Jaquith, Assistant United States Attorney for the Northern


    District of New York, Syracuse, NY, (Thomas J. Maroney, United States
    Attorney for the Northern District of NY, of counsel), for Appellee.
    J. Scott Porter, Syracuse, NY, for Appellant, Vyron U. Hargrett.
    George F. Hildebrandt, Syracuse, NY, for Appellant, Andre V. Williams.
    Bruce R. Bryan, Syracuse, NY, for Appellant, Roger Mattison.
    Before: WINTER, Chief Judge, PARKER, Circuit Judge, and
    SCHWARZER, District Judge.*

    WINTER, Chief Judge:

    Vyron Hargrett, Andre Williams, and Roger Mattison appeal from sentences
    imposed by Judge Munson after each pleaded guilty to various narcotics
    offenses. Hargrett and Williams received downward departures and now argue
    that the resultant sentences should be vacated because the district court failed to
    state reasons explaining, pursuant to 18 U.S.C. 3553(c), the extent of the
    downward departure. Mattison, on the other hand, challenges the district court's
    determination of the quantity of crack cocaine for which he was held
    accountable, the failure to reduce his offense level for acceptance of
    responsibility, the characterization of his role as "minor," rather than
    "minimal," and the failure to reduce his offense level under the United States
    Sentencing Guidelines' (the "Guidelines") "safety valve" provision. We dismiss
    Hargrett's and Williams's appeals for lack of jurisdiction and affirm Mattison's
    sentence.

    A. Hargrett and Williams


    2

    Hargrett was charged with, inter alia, engaging in a continuing criminal


    enterprise in violation of 21 U.S.C. 841(a)(1), 843(b), and 846, and
    possessing crack cocaine with intent to distribute. After entering into a plea
    agreement with the government, Hargrett pleaded guilty to engaging in a
    continuing criminal enterprise involving the distribution of cocaine and crack
    cocaine in violation of 21 U.S.C. 848. Hargrett acknowledged that he had
    participated in the distribution of at least 1.5 kilograms of crack cocaine and,
    consequently, was subject to a statutory minimum sentence of life
    imprisonment. However, the government moved pursuant to Guidelines
    5K1.1 for a downward departure because of Hargrett's substantial assistance to
    the government. The court granted this motion, departed downwardly from the
    appropriate Guidelines range, and sentenced Hargrett to 216 months'
    imprisonment. However, it did not explain how it determined the extent of the
    departure.

    Williams was charged with, inter alia, engaging in a continuing criminal


    enterprise, conspiracy to distribute cocaine and crack cocaine, and possessing
    cocaine with intent to distribute. Pursuant to a plea agreement, Williams
    pleaded guilty to the conspiracy charge, which, after his acceptance of
    responsibility and role as a minor participant were taken into account, yielded a
    sentencing range of 108 to 135 months' imprisonment. The district court,
    however, downwardly departed, again after granting a government motion
    under Section 5K1.1, and sentenced Williams to 57 months' imprisonment.

    Once more, the court did not explain why it departed to this extent.
    4

    Williams and Hargrett appeal on the ground that the district court failed to
    explain adequately the extent of the downward departure from the Guidelines,
    as required by 18 U.S.C. 3553(c).

    Section 3553(c) provides in pertinent part:

    6 court, at the time of sentencing, shall state in open court the reasons for its
    The
    imposition of the particular sentence, and, if the sentence-7

    (1) is of the kind, and within the range [established by the Sentencing
    Guidelines], and that range exceeds 24 months, the reason for imposing a
    sentence at a particular point within the range; or

    (2) is not of the kind, or is outside the range, [established by the Sentencing
    Guidelines], the specific reason for the imposition of a sentence different from
    that described.

    18 U.S.C. 3553(c)(1),(2). Hargrett and Williams rely principally upon our


    decision in United States v. Reyes, 116 F.3d 67 (2d Cir.1997), where we
    vacated a sentence based on the claim that, even when a district court departs
    downwardly from the Guidelines, it must indicate why it has imposed a
    particular sentence. See id. at 72. However, United States v. Lawal, 17 F.3d
    560 (2d Cir.1994), held that because we lack jurisdiction to review a
    defendant's challenge to the extent of a downward departure, we similarly lack
    jurisdiction to entertain a challenge to the district court's explanation of the
    extent of that departure, absent evidence that the district court misunderstood its
    authority to depart. See id. at 563-64.

    10

    Reyes and Lawal are thus inconsistent. Both involved downward departures
    under Guidelines 5K1.1, and both involved colorable claims that the
    sentencing judge had not sufficiently explained the extent of the departures.
    Reyes held that the sentence should be vacated and remanded for resentencing.
    Lawal held that we lacked jurisdiction to entertain the claim.

    11

    We hold that Lawal is the law of this circuit. In Reyes, the government never
    raised the jurisdictional issue, and we are confident that the Reyes panel, one
    member of which serves on this panel, would have dismissed the appeal had the
    issue come to its attention.1 As we explained in Lawal, the statute which
    governs the appeal of criminal sentences, 18 U.S.C. 3742, generally gives us

    jurisdiction to review the imposition of a downward departure only when raised


    on appeal by the government. See 18 U.S.C. 3742(b)(3). On an appeal by the
    defendant, by contrast, we may only review: (i) the imposition of an upward
    departure; (ii) a sentence imposed in violation of law; (iii) a sentence imposed
    as a result of an incorrect application of the sentencing guidelines; or (iv) in the
    case of an offense for which there is no applicable guideline, a sentence that is
    plainly unreasonable. See 18 U.S.C. 3742(a). Section 3742(a) does not
    generally confer jurisdiction on courts of appeals to review a district court's
    refusal to grant a downward departure or the extent of any downward departure
    that is granted. See United States v. Moe, 65 F.3d 245, 251 (2d Cir.1995);
    United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993) (per curiam).
    12

    For the reasons stated in Lawal, we believe that a simple failure to explain the
    extent of a downward departure is, without more,2 unreviewable on an appeal
    by a defendant. See Lawal, 17 F.3d at 563 ("[T]o interpret the phrase in
    'violation of law' as permitting a defendant to appeal from a downward
    departure simply because the district court fails to state reasons therefor, would
    impermissibly erode the jurisdictional limitation contained in 3742(a)(3)....").
    A legal structure that prohibits review of the extent of a downward departure
    while permitting review of the failure to explain that extent would not only be
    anomalous but also lead to appeals that could not have a practical effect on the
    appellants' sentences. We have circulated this opinion to the active judges of
    this court. See Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991).

    B. Mattison
    13

    Mattison was sentenced to 120 months' imprisonment after he pleaded guilty to


    conspiracy to possess crack cocaine with intent to distribute in violation of 21
    U.S.C. 841(a)(1). In determining this sentence, the district court found
    Mattison accountable for the distribution of 50 to 150 grams of crack cocaine.
    In addition, the court found that Mattison was not eligible for a reduction in his
    offense level for acceptance of responsibility because he failed to notify the
    government of his intent to plead guilty, until the day before jury selection was
    scheduled to commence. See U.S.S.G. 3E1.1(b)(2). The court also classified
    Mattison as a "minor" rather than "minimal" participant in the conspiracy.
    Finally, the court found that Mattison never gave the government a complete
    and truthful account of his criminal activities and was thus not eligible for a
    "safety valve" reduction pursuant to Sentencing Guidelines 5C1.2(5).

    14

    The district court based its finding that Mattison is accountable for the
    distribution of over 50 grams of crack cocaine on tape recordings of drug
    transactions involving Mattison and on the testimony of Mattison's co-

    conspirators. Specifically, the government introduced at trial (of other


    defendants) recordings of Mattison's phone calls from January 5-8, 1996. When
    sentencing Mattison, Judge Munson observed that these phone conversations
    showed Mattison's participation in drug transactions with Hargrett and one
    David McKinney involving over 50 grams of crack cocaine. Moreover,
    Mattison's co-conspirators testified that these transactions involved primarily
    crack cocaine or powder cocaine that was cooked into crack for distribution.
    15

    Mattison argues that the district court erroneously determined the quantity of
    crack cocaine for which he is accountable by crediting the unreliable testimony
    of Mattison's co-conspirators and by counting transactions involving powder
    cocaine as involving crack cocaine. We disagree.

    16

    Because Mattison failed to object to the district court's determination of the


    quantity of cocaine for which he was held accountable, we will review the
    district court's calculation only for plain error. See United States v. Keppler, 2
    F.3d 21, 23-24 (2d Cir.1993). There was no error. The district court did not
    consider facially unreliable testimonial evidence in determining the quantity of
    crack cocaine. See U.S.S.G. 6A1.3(a); Townsend v. Burke, 334 U.S. 736,
    740, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). Although the testimony of
    Mattison's co-conspirators contained minor inconsistencies and lack of detail, it
    was not particularly vulnerable. Indeed, it was largely consistent with
    Mattison's own testimony and was substantiated by recorded phone
    conversations and phone and pager records. As a result, there were more than
    sufficient indicia of the reliability of this testimony. See U.S.S.G. 6A1.3(a).

    17

    Nor can we say that the district court plainly erred in holding that the 50 grams
    for which Mattison was held responsible involved crack cocaine. In a single
    uncontroverted incident, Mattison's co-conspirator "cooked" two ounces of
    powder cocaine into crack for distribution. Tape recordings and testimony
    demonstrate that Mattison made the phone call to obtain this cocaine, saw his
    co-conspirator cook the powder into crack, and could reasonably foresee that
    this crack was intended for distribution. Therefore, he was properly held
    accountable for this crack cocaine. See United States v. Miller, 116 F.3d 641,
    684 (2d Cir.1997). Moreover, a number of other transactions involving crack
    cocaine were substantiated by testimony and recordings of phone conversations
    involving Mattison and his co-conspirators. The district court could, therefore,
    easily have concluded that Mattison participated in transactions involving well
    over 50 grams of crack cocaine.

    18

    With respect to the lower court's failure to reduce Mattison's sentence under
    U.S.S.G. 3E1.1(b)(2), Mattison would have qualified for this acceptance-of-

    responsibility reduction only if he had "timely notif[ied] authorities of his


    intention to enter a plea of guilty, thereby permitting the government to avoid
    preparing for trial and permitting the court to allocate its resources efficiently".
    U.S.S.G. 3E1.1(b)(2). Section 3E1.1(b)(2) does not mandate an automatic
    reduction in the offense level for those who plead guilty; instead, it allows a
    reduction for those who actually conserve prosecutorial resources. The district
    court denied Mattison this reduction because his guilty plea was entered a day
    before jury selection was to commence. In light of Mattison's tardy plea and the
    resources spent by the government in preparing for trial, the district court was
    well within its discretion in denying the reduction. See United States v.
    Patasnik, 89 F.3d 63, 73 (2d Cir.1996).
    19

    Mattison's remaining arguments are similarly unavailing. The evidence amply


    showed Mattison's role as a middleman in drug transactions, including a
    recorded phone conversation in which Mattison told a co-conspirator that he,
    Mattison, had just sold 14 grams of crack for the co-conspirator. We cannot
    say, therefore, that the district court erred when it characterized Mattison as a
    "minor" (rather than "minimal") participant in the conspiracy. See United States
    v. Colon, 884 F.2d 1550, 1551-52 (2d Cir.1989).

    20

    We also reject Mattison's argument that he should have received a safety valve
    reduction under 18 U.S.C. 3553(f)(5); U.S.S.G. 5C1.2. To qualify for this
    reduction, Mattison had, inter alia, to disclose truthfully and fully all the
    information he had concerning his offense. See 18 U.S.C. 3553(f)(5);
    U.S.S.G. 5C1.2(5). Ample evidence demonstrates that Mattison did not
    disclose all the drug transactions in which he was involved. Indeed, he did not
    disclose his involvement in transactions where the government had actually
    recorded his participation.

    21

    We therefore dismiss Hargrett's and Williams's appeals and affirm Mattison's


    sentence.

    The Honorable William W Schwarzer of the United States District Court for
    the Northern District of California, sitting by designation

    One source of confusion may stem from the Reyes panel's exclusive reliance on
    Section 3553(c)(1) in finding that the district court's explanation of the
    departure was inadequate. Subsection (c)(1) applies to sentences within the
    range designated under the offense level determined to be applicable under the
    Guidelines. Subsection (c)(2) applies to sentences outside that range and is

    applicable to a downward departure that results from a government motion


    under Guidelines 5K1.1 based on the defendant's "substantial assistance."
    In Reyes, the district court downwardly departed under Section 5K1.1, but, for
    analysis purposes, stated that the sentence would be within the mid-range
    designated for an offense level lower than that applicable under the Guidelines.
    This mode of analysis was not required by the Guidelines. A downward
    departure based on Section 5K1.1 does not require the district judge to pick a
    new offense level and a particular sentence within the range set for that level;
    rather, the court may simply pick a sentence of so many months without
    mention of an offense level. See, e.g., United States v. Campo, 140 F.3d 415,
    419 (2d Cir.1998). Nevertheless, Reyes evaluated the lack of explanation for
    the departure under (c)(1), which, as noted, governs sentences within a range
    determined by the applicable offense level. In fact, however, there was no
    legally relevant offense level or Guidelines range in Reyes because the sentence
    involved a downward departure, and the reference to an offense level by the
    district court was for analysis purposes only. It is doubtful, therefore, that (c)
    (1), rather than (c)(2), applied in Reyes.
    2

    None of this is to say, of course, that we would lack jurisdiction to review a


    claim that the record or other evidence indicated that a downward departure
    was limited in size because of an impermissible consideration such as race. See
    United States v. Avellino, 136 F.3d 249, 260 (2d Cir.1998)

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