14‐3812
United States v. Reed
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 16th day of October, two thousand fifteen.
PRESENT: CHESTER J. STRAUB,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
______________________
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ No. 14‐3812‐cr
LAMONT REED, aka L‐Wop,
Defendant‐Appellant.
______________________
FOR APPELLANT: Walter C. Bansley, IV, Bansley Law Offices, LLC, New
Haven, CT.
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FOR APPELLEES: Anthony E. Kaplan, Sandra S. Glover, Assistant United
States Attorneys, for Deirdre M. Daly, United States
Attorney for District of Connecticut, New Haven, CT.
Appeal from the United States District Court for District of Connecticut
(Warren W. Eginton, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the defendant’s sentence is AFFIRMED.
On November 7, 2013, Defendant Lamont Reed pled guilty to one count
of conspiracy to possess with intent to distribute 28 grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), 846. After a
sentencing hearing, Reed was sentenced to 110 months’ imprisonment. On
appeal, he challenges, both through counsel and proceeding pro se, the
procedural reasonableness and substantive reasonableness of his sentence. In
sentencing, “[w]e review the work of district courts under a deferential abuse‐of‐
discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
banc) (internal quotation marks omitted). We assume the parties’ familiarity with
the facts and the record below, which we reference only as necessary to explain
our decision.
A sentence is procedurally unreasonable if the district court “fails to
calculate (or improperly calculates) the Sentencing Guidelines range, treats the
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Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.
2012). We review “the district court’s interpretation of the Sentencing Guidelines
de novo and its findings of fact for clear error.” United States v. Phillips, 431 F.3d
86, 89 (2d Cir. 2005). The statute further requires that the district court must
“state in open court the reasons for its imposition of the particular sentence.” 18
U.S.C. § 3553(c).
Reed first argues, through counsel, that the District Court failed to
consider the “nature and circumstances of the offense” properly, as required by
§ 3553(a), specifically failing to consider Reed’s limited role in the enterprise. We
disagree. Even if the record were not clear, we would presume “in the absence
of record evidence suggesting otherwise . . . that a sentencing judge has faithfully
discharged her duty to consider the statutory factors.” United States v.
Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (internal quotation marks omitted).
Here, there is no need to presume, as Judge Eginton clearly stated his agreement
with the Government’s contention that Reed’s role was not minor, Gov’t App. 34,
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but nonetheless set the sentence at the bottom of the Guidelines range based on
defense counsel’s arguments.
Reed next argues, also through counsel, that the District Court erred in
failing to consider the gross disparities between sentences for offenses involving
crack and powder cocaine. It is clear the argument regarding crack‐to‐powder
ratios was made to the District Court and the judge considered it in his
sentencing. Although the District Court stated that it agreed “philosophically”
with the 1:1 ratio, it determined that it would “stick[] to a uniform approach” in
order to avoid disparity in sentencing between defendants in the same case.
Gov’t App. 32–33. Uniform sentencing of codefendants is a legitimate (but not
compulsory) consideration in sentencing, see United States v. Williams, 524 F.3d
209, 216 (2d Cir. 2008), and thus the District Court did not abuse its discretion in
sentencing Reed under a ratio used for his codefendants as well.
In his supplemental pro se brief, Reed mounts three additional challenges
to his sentencing. Before proceeding, we pause to note that we construe
arguments in pro se appellate briefs “liberally and interpret them to raise the
strongest arguments they suggest.” Wright v. Commissioner, 381 F.3d 41, 44 (2d
Cir. 2004).
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Reed argues the District Court improperly applied the sentencing
guideline for calculating prior criminal history in two ways. First, he contends
that the Guidelines always require that sentences in the same charging
instrument or imposed on the same day be counted as a single sentence.
Reviewing the Guidelines de novo, we find Reed’s argument inconsistent with the
plain text: sentences are only counted as a single sentence “[i]f there is no
intervening arrest,” U.S.S.G. § 4A1.2(a)(2), and Reed’s two sentences—one for
carrying a dangerous weapon and the second for failing to appear on that
charge—were separated by such an arrest. Second, Reed contends that the
District Court incorrectly counted a partially suspended sentence as over one
year and one month in violation of U.S.S.G. § 4A1.2(e). Again, Reed’s argument
is inconsistent with the plain text: Reed’s parole on the suspended sentence was
revoked, which under the Guidelines, combines the time he initially served with
the time to which he was sentenced upon revocation, U.S.S.G. § 4A1.2(k). Thus,
the District Court committed no error in calculating Reed’s prior criminal
history.
Reed next argues the District Court was obligated to order a competency
hearing when, during the sentencing colloquy, Reed admitted to taking other
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inmates’ medication. A district court is required to order a competency hearing
“on its own motion, if there is reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect rendering him mentally
incompetent.” 18 U.S.C. § 4241(a) (emphasis added). There are “no fixed or
immutable signs which invariably indicate the need for further inquiry,” and a
district court’s decision that reasonable cause is absent “is reviewed only for
abuse of discretion.” United States v. Quintieri, 306 F.3d 1217, 1233 (2d Cir. 2002)
(internal quotation marks omitted). The District Court did not abuse its
discretion in failing to hold a competency hearing. Reed’s statements that he
took medication in jail did not indicate he had taken them at the time of
sentencing, and he had in fact testified under oath just previously that he was not
under the influence of drugs or alcohol. Gov’t App. 20–21. The District Court
was entitled to rely on this sworn statement, cf. United States v. Hernandez, 242
F.3d 110, 112 (2d Cir. 2001) (per curiam), especially when Reed’s defense counsel
did not suggest his client was unable to assist in his own defense, see United
States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995), and when Reed himself engaged
with the District Court in a clearly competent manner, cf. United States v. Lora, 895
F.2d 878, 881 (2d Cir. 1990).
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Next, Reed argues that he was sentenced for a quantity of crack cocaine—
203 grams—that was unsupported by the facts. However, multiple times in
proceedings below, Reed both personally and through counsel agreed not to
contest the 203‐gram quantity, which waives any such argument on appeal. See
United States v. Jackson, 346 F.3d 22, 24 (2d Cir. 2003). Nevertheless, mindful of
our obligation to construe pro se filings liberally and in their strongest light, we
interpret Reed’s brief to argue that the explicit agreement to the quantity was
procured by coercion—specifically, the Government’s threat to withdraw the
three‐level reduction in offense level available for cooperating defendants under
U.S.S.G. § 3E1.1.
In such circumstances, “the relevant inquiry is whether the sentencing
stipulation was informed and uncoerced on the part of the defendant, not
whether it is factually sound.” Libretti v. United States, 516 U.S. 29, 42 (1995).
Reed was clearly fully informed of the consequences of the agreement, so the
question is whether the threat of removing the cooperation benefit is sufficiently
coercive to override Reed’s waiver. We hold it is not. The Supreme Court has
approved the use of incentives to encourage cooperation in criminal trials, even
if it “clearly may have a discouraging effect on the defendant’s assertion of his
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trial rights.” Corbitt v. New Jersey, 439 U.S. 212, 220 (1978) (internal quotation
marks omitted). Reed’s decision to accept a stipulated gram amount in order to
avoid a gram hearing constituted a strategic choice, not a coerced one.
Consequently, because Reed voluntarily waived his right to contest the gram
amount, his arguments to the contrary cannot be heard on appeal.
Finally, in his counseled brief, Reed challenges the substantive
reasonableness of his sentence on two grounds: his limited participation in the
offense and the disparity inherent in the Guidelines’ crack‐to‐powder ratio. We
will “set aside a district court’s substantive determination only in exceptional
cases where the trial court’s decision cannot be located within the range of
permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks
omitted). Such is not the case here. The District Court here was well within its
discretion to conclude, as it did, that Reed substantially participated in a serious
offense and that the bottom of the Guidelines range was sufficient to achieve the
goals of § 3553(a). Cf. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)
(“[I]n the overwhelming majority of cases, a Guidelines sentence will fall
comfortably within the broad range of sentences that would be reasonable in the
particular circumstances.”). Consequently, Reed’s sentence is hardly the “rare
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case” where the sentence “was shockingly high, shockingly low, or otherwise
unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d
Cir. 2009).
For the reasons stated above, the defendant’s sentence is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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