13-3227(L)
United States v. Mongo, Logan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of October, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, Jr.,
8 Circuit Judges.*
9
10 - - - - - - - - - - - - - - - - - - - -X
11 UNITED STATES OF AMERICA,
12 Appellee,
13
14 -v.- 13-3227(L)
15 13-3260(CON)
16 EQUAN MONGO, CLYDE C. LOGAN
17 Defendants-Appellants.**
18 - - - - - - - - - - - - - - - - - - - -X
*
Judge Christopher F. Droney, originally assigned to
this panel, recused himself. The remaining two members of
the panel, who are in agreement, decide this appeal in
accordance with Internal Operating Procedure E(b) of the
Rules of the United States Court of Appeals for the Second
Circuit. See 28 U.S.C. § 46(d); cf. United States v.
Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
**
The Clerk of Court is directed to amend the caption as
above.
1
1
2 FOR APPELLANTS: SAMUEL CONROY BRESLIN, Hinckley
3 Allen & Snyder LLP, Albany, New
4 York.
5
6 JAMES EDWARD GROSS, Albany, New
7 York.
8
9 FOR APPELLEE: JOHN M. PELLETTIERI, for Leslie
10 R. Caldwell, David A. O’Neil,
11 United States Department of
12 Justice, Washington, District of
13 Columbia.
14
15 Daniel Hanlon, for Richard S.
16 Hartunian, United States
17 Attorney for the Northern
18 District of New York, Syracuse,
19 New York.
20
21 Appeal from judgments of the United States District
22 Court for the Northern District of New York (McAvoy, J.).
23
24 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
25 AND DECREED that the judgments of the district court be
26 AFFIRMED.
27
28 Equan Mongo and Clyde C. Logan appeal from respective
29 judgments of the United States District Court for the
30 Northern District of New York (McAvoy, J.), sentencing Mongo
31 after a jury trial to 120 months imprisonment and sentencing
32 Logan after a guilty plea to 135 months imprisonment, each
33 for conspiracy to distribute and possess with intent to
34 distribute cocaine base (crack). On appeal, Mongo argues
35 that: (1) the district court erred in admitting in evidence
36 more than 200 grams of powder cocaine and the accompanying
37 testimony of a Drug Enforcement Administration (“DEA”)
38 chemist; and (2) the evidence at trial was insufficient to
39 support his conviction. Logan argues that he should be re-
40 sentenced because his decision to plead guilty was based on
41 the mistaken belief that the district court would not
42 consider him a career offender as defined by the U.S.
43 Sentencing Guidelines (“USSG”). We assume the parties’
44 familiarity with the underlying facts, the procedural
45 history, and the issues presented for review.
46
2
1 I. Mongo’s Appeal
2
3 The jury found Mongo guilty of one count of conspiring
4 to distribute and possess with intent to distribute more
5 than 28 grams of cocaine base. Government witness Anton
6 Boone testified that he had sold crack cocaine to Mongo in
7 amounts of up to 50 grams in approximately seven
8 transactions; government witness Davell Lee testified that
9 he had made four or five crack cocaine sales to Mongo, with
10 each sale involving 7 to 50 grams. In an audio of phone
11 calls between Mongo and Boone, intercepted pursuant to a
12 Title III wiretap, the two negotiated sales of narcotics.
13 In the last intercept, recorded on November 13, 2011, Mongo
14 confirms: “that sounds like a plan man.” The government
15 further introduced in evidence more than 200 grams of powder
16 cocaine, which had been seized from Boone during his arrest
17 two days after that conversation; Boone testified he had
18 intended to “cook” this powder into crack cocaine. (A DEA
19 chemist described the properties of the seized powder
20 cocaine.)
21
22 Mongo contends that the district court erred by
23 admitting the powder cocaine and the DEA chemist’s
24 testimony, which he insists were irrelevant and unduly
25 prejudicial. We review a district court’s evidentiary
26 rulings “only for an abuse of discretion,” United States v.
27 Khalil, 214 F.3d 111, 122 (2d Cir. 2000), and even such an
28 abuse of discretion “does not warrant reversal if it is
29 harmless,” United States v. Rea, 958 F.2d 1206, 1220 (2d
30 Cir. 1922). The district court ruled, over Mongo’s
31 objections, that the powder cocaine and the DEA chemist’s
32 analysis of it were relevant and not unduly prejudicial
33 because: other evidence already admitted had demonstrated a
34 pattern in which Boone would buy powder cocaine in New York
35 City, bring it to the Schenectady area, cook it into crack
36 cocaine, and sell it to Mongo; and the jury could infer that
37 some of the cocaine seized from Boone’s car two days after
38 the November 13 phone call was intended for Mongo. The
39 district court did not abuse its discretion in reaching this
40 conclusion.
41
42 Mongo argues that the verdict was unsupported by
43 sufficient evidence of an agreement or an intent to
44 distribute. In considering such an argument, “the relevant
45 question is whether, after viewing the evidence in the light
46 most favorable to the prosecution, any rational trier of
47 fact could have found the essential elements of the crime
3
1 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
2 307, 319 (1979). The jury heard Boone and Lee testify to a
3 pattern of crack cocaine sales to Mongo, with up to 50 grams
4 of cocaine base sold each time. The jury also heard Mongo
5 negotiating crack cocaine prices in intercepted phone calls,
6 in one of which Mongo confirmed, “that sounds like a plan
7 man.” Moreover, Boone and Lee testified that they never saw
8 Mongo under the influence of crack cocaine himself, and Lee
9 testified that in his experience purchasers of narcotics in
10 this quantity and frequency resold the drugs. The trial
11 evidence amply supports Mongo’s conviction.
12
13 II. Logan’s Appeal
14
15 Pursuant to an agreement, Logan pled to one count of
16 conspiring to distribute and possess with intent to
17 distribute more than 28 grams of cocaine base. At the time
18 of the agreement, the government estimated that Logan’s
19 offense level would be 26 and his criminal history category
20 would be 4, corresponding to a Guidelines range under the
21 Sentencing Guidelines of 92 to 115 months imprisonment.
22 This estimate took into account Logan’s 2007 state court
23 felony conviction for possession of crack cocaine. The
24 Probation Office later discovered a second prior felony
25 conviction for possession of crack cocaine, from 2006. In
26 light of the two prior felony narcotics convictions, the
27 Presentence Investigation Report (“PSR”) found that Logan
28 was a career offender under USSG § 4B1.1, resulting in an
29 offense level of 34 and a criminal history category of 6.
30 Logan objected to the PSR’s finding that the two prior
31 felony convictions conferred on him career offender status.
32
33 At sentencing, the district court found that the PSR
34 had correctly calculated Logan’s career offender status,
35 offense level, and criminal history category. The district
36 court found that the advisory range was 262 to 327 months
37 imprisonment. It sentenced Logan to 135 months imprisonment
38 and eight years supervised release. On appeal, Logan
39 contends that he pled guilty on the mistaken belief that he
40 was not a career offender and that we should therefore
41 direct the district court to re-sentence him on remand as if
42 he were not a career offender.
43
44 We review sentences for reasonableness, United States
45 v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),
46 which “amounts to review for abuse of discretion,” United
47 States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en
4
1 banc). This concept applies both to “the sentence itself
2 and to the procedures employed in arriving at the sentence.”
3 United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.
4 2008) (internal citation and quotation marks omitted).
5 Underlying findings of fact are reviewed for clear error,
6 see United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir.
7 2012), and this standard applies to a district court’s
8 determination that prior convictions are unrelated for
9 purposes of career offender status, see United States v.
10 Brothers, 316 F.3d 120, 122-23 (2d Cir. 2003).
11
12 The thrust of Logan’s argument is that his plea
13 agreement was unfair because the government did not alert
14 him to his career offender status. This Court “interpret[s]
15 plea agreements according to principles of contract law
16 . . . look[ing] to the reasonable understanding of the
17 parties.” United States v. Rodgers, 101 F.3d 247, 253 (2d
18 Cir. 1996). Without suggesting that the government actually
19 knew the full extent of his criminal history at the time of
20 the plea agreement, Logan maintains that he was justified in
21 relying on the government’s estimate of his offense level
22 and criminal history category. The agreement in this case
23 is replete with disclaimers that the government’s estimate
24 of the offense level and criminal history category was not
25 binding and that it might change depending on the Probation
26 Office’s investigation. Logan’s reliance on the
27 government’s estimate was therefore not objectively
28 reasonable.1
29
30 Logan further challenges his career offender status by
31 contending that his prior felony convictions are not
32 separate from each other or from the instant conviction.
33 Prior convictions are separate from each other if the
34 offenses “were separated by an intervening arrest (i.e., the
35 defendant is arrested for the first offense prior to
36 committing the second offense),” or else are separate from
37 each other if they arose from different charging instruments
38 and resulted in two sentences imposed on different days.
1
We need not consider here whether the same
conclusion would obtain if Logan lacked effective assistance
of counsel.
5
1 USSG § 4A1.2(a)(2); see id. § 4B1.2(c). A prior conviction
2 is unrelated to the instant conviction if the two were “not
3 [] part of the same course of conduct or common scheme or
4 plan.” Id. § 1B1.3 cmt. 8.
5
6 Logan’s 2006 and 2007 felony convictions were separated
7 by an intervening arrest, arose from different charging
8 instruments, and resulted in different sentences imposed on
9 different days. Moreover, neither was part of the same
10 course of conduct as Logan’s offense in the instant case, a
11 conspiracy which began in mid-2011 according to the
12 indictment. Cf. USSG § 1B1.3 cmt. 8 ex. 1 (describing
13 successive cocaine sales “to the same person, using the same
14 accomplices and modus operandi,” but separated by an
15 intervening arrest and prison sentence, as unrelated for
16 purposes of career offender status).
17
18 Finally, Logan relies on a disparity between his 135-
19 month sentence and the lesser sentences imposed on co-
20 defendants. However, “a disparity between non-similarly
21 situated co-defendants is not a valid basis for a claim of
22 error.” United States v. Fernandez, 443 F.3d 19, 28 (2d
23 Cir. 2006), abrogated on other grounds by Rita v. United
24 States, 551 U.S. 338 (2007). Logan does not argue that his
25 co-defendants are similarly situated to him in terms of
26 their criminal history, so he has shown no error in the
27 disparity between them.
28
29 For the foregoing reasons, and finding no merit in
30 Mongo and Logan’s other arguments, we hereby AFFIRM the
31 judgments of the district court.
32
33 FOR THE COURT:
34 CATHERINE O’HAGAN WOLFE, CLERK
35
6