12‐4402‐cr(L)
United States v. Welch
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 11th day of February, two thousand sixteen.
PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 12‐4402‐cr(L)
12‐5004‐cr(Con)
MICHAEL WELCH and ALLAN SNYDER,
Defendants‐Appellants,
DANIEL METTLER, aka Boone, BETHLYN FELIX,
PATRICK GRAHAM, aka Pete, STEVE CAYEA, ALLEN
SNYDER,
Defendants.
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FOR APPELLEE: Monica J. Richards, Assistant United States
Attorney, for William J. Hochul, Jr., United
States Attorney for the Western District of New
York, Buffalo, New York.
FOR DEFENDANT‐APPELLANT David R. Morabito, Law Office of David R.
MICHAEL WELCH: Morabito, East Rochester, New York.
FOR DEFENDANT‐APPELLANT Roland Richard Acevedo, Scopetta
ALLAN SNYDER: Seiff Kretz & Abercrombie, New York, New
York.
Appeal from the United States District Court for the Western District of
New York (Siragusa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED,
except that we REMAND for the district court to vacate defendant‐appellant Michael
Welchʹs sentence and to resentence him consistent with this order.
Following a jury trial in the district court, defendants‐appellants Michael
Welch and Allan Snyder were convicted of conspiracy and substantive counts relating
to the manufacturing of marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 841(b)(1)(B), 846, and 856(a)(1). Welch appeals a judgment entered
October 26, 2012, sentencing him principally to 144 monthsʹ imprisonment. Snyder
appeals a judgment entered December 11, 2012, sentencing him principally to 204
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monthsʹ imprisonment.1 We assume the partiesʹ familiarity with the underlying facts,
procedural history, and issues on appeal.
Defendants raise principally the following issues: (1) the sufficiency of the
evidence, (2) an alleged Brady violation, (3) the intrastate nature of their alleged
conduct, (4) the enhancement of Snyderʹs sentence for possession of a weapon, and (5)
Welchʹs status as a career offender. We address each issue in turn.
1. Sufficiency of the Evidence
Welch challenges the sufficiency of the evidence supporting his
conviction. When a defendant challenges his conviction based on insufficiency of
evidence, we must determine ʺwhether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of a crime beyond a reasonable doubt.ʺ United States v. Temple, 447 F.3d 130,
136 (2d Cir. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
We identify no basis to disturb the juryʹs verdict based on the sufficiency
of the evidence. There was sufficient evidence to show that Welch conspired to
manufacture, and did manufacture, at least 100 marijuana plants. In particular, there
were several phone calls and text messages implicating Welch in the growing operation
at 13770 Savannah Spring Lake Road, where 484 marijuana plants were recovered in
individual Styrofoam cups beneath suspended, fluorescent lights. To the extent Snyder
1 On July 1, 2015, Snyder filed a motion to reduce his sentence. The district court
granted the motion on September 25, 2015, reducing Snyderʹs sentence to 162 months.
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joins Welchʹs challenge to the sufficiency of the evidence, Snyderʹs claim is also without
merit. Snyder was at the center of the conspiracy, as evidenced by the marijuana‐
growing operation out of his house and on his property, numerous phone calls and text
messages, and testimony of co‐conspirators.
Both Welch and Snyder argue that because the roots had been removed
from the marijuana plants when they were seized by law enforcement officers, the
defendantsʹ due process rights were violated because they were unable to inspect the
roots to confirm that the marijuana plants were, in fact, ʺplantsʺ under the Sentencing
Guidelinesʹ definition. See U.S.S.G. § 2D1.1 cmt. 2 (defining a ʺplantʺ as an ʺorganism
having leaves and a readily observable root formationʺ). The substance of this
argument is really about the sufficiency of the evidence as both defendants argue that
the government failed to present evidence of root systems at trial.
There was sufficient evidence to establish that the marijuana plants had
identifiable root systems and met the definition of a ʺplant.ʺ Officer Roger LaClair
testified that, during the seizure of evidence at 13770 Savannah Spring Lake Road, he
and another officer together pulled 484 marijuana plants out of individual styrofoam
cups. He specifically testified that each plant had a root structure. Welch App. at 1147
(ʺAs [the plants] went into the bag, I confirmed every plant . . . had a root at the base of
the plant.ʺ). Officer Christopher Verstrate testified that he observed root structures on
the 362 plants that he pulled from the growing location at 11813 Wilson Street. The
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latter marijuana collection and counting process was also video‐recorded and played
for the jury. Finally, Investigator Kevin Kuntz testified that he processed the marijuana
evidence, which included drying the plants, cutting off their roots, and sending the
remaining material to the laboratory for THC testing.
2. Brady
Defendants also allege a Brady violation, in that they argue that the
government failed to preserve the marijuana plants, thereby depriving the defendants
of the right to inspect the plants. The argument fails, as nothing about the marijuana
evidence is exculpatory. See United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001) (ʺ[A]
defendant must show that: (1) the Government, either willfully or inadvertently,
suppressed evidence; (2) the evidence at issue is favorable to the defendant; and (3) the
failure to disclose this evidence resulted in prejudice.ʺ).
3. Interstate Commerce
Welch argues that the Controlled Substances Act (the ʺCSAʺ) does not
apply to their conduct because the marijuana manufacturing and distribution activities
occurred only on an intrastate basis. An effect on interstate commerce, however, is not
an element of the offense, and therefore need not be established by the government to
support a conviction under the CSA. See United States v. Parkes, 497 F.3d 220, 229 (2d
Cir. 2007) (ʺUnder the CSA, an effect on interstate commerce is not an element . . . .ʺ).
Further, an as‐applied challenge to the CSA is foreclosed by the Supreme Courtʹs
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decision in Gonzales v. Raich, which affirmed Congressʹs finding that all drug dealing ‐‐
even those activities strictly local in nature ‐‐ has an effect on interstate commerce. 545
U.S. 1, 17‐22 (2005).
4. Weapon Enhancement
Snyder challenges his two‐level enhancement for possession of a
dangerous weapon under § 2D1.1(b)(1) of the Sentencing Guidelines, which requires a
two‐level increase ʺ[i]f a dangerous weapon (including a firearm) was possessedʺ in the
course of a narcotics conspiracy. During the search of Snyderʹs home, a loaded 12‐
gauge Beretta shotgun was found in his bedroom near eight ounces of marijuana and
$4,000 in cash. Snyder argues that the loaded gun was unrelated to the drug conspiracy
because, like the 25 other long guns found in the house, it was used for hunting
purposes only. It was undisputed that Snyder was an avid hunter and held a lifetime
hunting license. We review a sentencing courtʹs interpretation of the Guidelines de
novo, and its findings of fact for clear error. United States v. Santiago, 384 F.3d 31, 33 (2d
Cir. 2004) (per curiam). ʺThe sentencing courtʹs finding that a firearm was possessed in
connection with a drug offense for purposes of § 2D1.1 will not be overturned unless it
is clearly erroneous.ʺ United States v. Stevens, 985 F.2d 1175, 1188 (2d Cir. 1993).
While there was some dispute as to whether Snyder properly lodged an
objection to the Presentence Report (the ʺPSRʺ) or the enhancement or waived his
objection, the district court found in the alternative to waiver that the loaded gun was
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associated with the marijuana conspiracy and not used for hunting exclusively. Snyder
App. at 108 (ʺ[H]ad [the gun enhancement] been objected to . . . I would have found by
a preponderance of evidence that the government had established that enhancement
based on the facts of this case . . . .ʺ). The district court based its finding on the fact that,
while there were numerous unloaded hunting rifles found in Snyderʹs home, one
shotgun was loaded and in close proximity to bags of marijuana and $4,000 in cash in
the bedroom. The district courtʹs finding was not clearly erroneous. Application Note 3
clarifies that the enhancement ʺshould be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.ʺ U.S.S.G. §
2D1.1(b)(1) cmt. 3; see also United States v. Smith, 215 F.3d 237, 241 (2d Cir. 2000) (ʺ[O]nce
the government has established that a weaponʹs presence was reasonably foreseeable to
the defendant during conduct (i.e., the storage and cutting of drugs) relevant to the
offense (i.e., distribution of drugs) at issue, the enhancement will apply, unless the
defendant demonstrates that it is clearly improbable that the weapon was connected
with the drug offense.ʺ (citation omitted)).
5. Career Offender Status
Finally, Welch argues that the district court erred in finding that he is a
career offender because his prior New York State conviction for attempted second‐
degree burglary is a qualifying ʺcrime of violenceʺ under § 4B1.2(a) of the Sentencing
Guidelines. We agree that the district court erred.
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Under the Guidelines, a ʺcrime of violenceʺ is defined as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that ‐‐
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). When a conviction follows a guilty plea to a statutory offense, we
employ a ʹmodified categorical approachʹ to determine whether the offense of
conviction constitutes a ʹcrime of violence.ʹʺ United States v. Walker, 595 F.3d 441, 443 (2d
Cir. 2010). The first step involves determining ʺwhether the statute of the prior
conviction criminalizes conduct that falls exclusively within the federal definition of a
predicate offense.ʺ Id. at 444 (quoting United States v. Savage, 542 F.3d 959, 964 (2d Cir.
2008)). If the statute of conviction criminalizes certain conduct that does not fall within
the Guidelinesʹ definition of a crime of violence, ʺthe government must demonstrate
that the conviction ʹnecessarilyʹ rested on facts identifying the conviction as one for a
crime of violence.ʺ United States v. Reyes, 691 F.3d 453, 458 (2d Cir. 2012) (quoting
Walker, 595 F.3d at 444).
Initially, we conclude that Welchʹs statutory offense of conviction includes
conduct that does not fall within the Guidelinesʹ definition of a crime of violence. In
finding that Welchʹs 1992 conviction was for a crime of violence under § 4B1.2(a)(2), the
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district court stated that under New York law, attempted burglary in the second degree
always involves burglary of a dwelling. Welch App. at 2500. Second‐degree burglary
in New York, however, includes burglary of buildings other than dwellings. At the
time Welch was convicted, Penal Code § 140.25 made it a crime of burglary in the
second degree when an individual:
[K]nowingly enters or remains unlawfully in a building with intent to
commit a crime therein, and when:
(1) In effecting entry or while in the building or in immediate flight
therefrom, he or another participate in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a
participant in the crime; or
(c) Uses or threatens the immediate use of a dangerous
instrument; or
(d) Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; or
(2) The building is a dwelling.
N.Y. Penal Law § 140.25 (McKinney 1992) (emphasis added).
Similarly, second‐degree burglary of a building other than a dwelling
need not involve ʺuse of physical force,ʺ and thus a conviction under § 140.25 of the
Penal Law does not necessarily invoke the ʺuse of physical forceʺ clause of § 4B1.2(a)(1)
of the Guidelines. A person can be convicted of burglarizing a building other than a
dwelling in a way that ʺ[c]auses physical injury.ʺ N.Y. Penal Law § 140.25(1)(b). We
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have held that the ʺintentional causation of injury does not necessarily involve the use
of force,ʺ as it could be accomplished ʺnot by physical force, but by guile, deception, or
even deliberate omission.ʺ Chrzanoski v. Ashcroft, 327 F.3d 188, 193, 195 (2d Cir. 2003)
(concluding that a Connecticut third‐degree assault conviction was not a predicate
ʺcrime of violenceʺ under the Immigration and Nationality Act). Likewise here, a
conviction of second‐degree burglary could be accomplished by ʺ[c]aus[ing] physical
injuryʺ without using physical force.
In addition, attempted second‐degree burglary is also no longer a
predicate offense under the residual clause of § 4B1.2(a)(2) in light of Johnson v. United
States, which held that that the ʺresidual clauseʺ of the Armed Career Criminal Act (the
ʺACCAʺ), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. 135 S. Ct. 2551 (2015).
The stricken language from the ACCA ‐‐ ʺor otherwise involves conduct that presents a
serious potential risk of physical injury to anotherʺ ‐‐ is identical to the residual clause
in the career offender Guideline § 4B1.2(a)(2), and we have previously explained that
ʺauthority interpreting one phrase frequently is found to be persuasive in interpreting
the other phrase.ʺ United States v. Brown, 514 F.3d 256, 268 (2d Cir. 2008) (quoting
United States v. Palmer, 68 F.3d 52, 55 (2d Cir. 1995)).2 Prior to Johnson, attempted
2 Notably, since the Supreme Courtʹs decision in Johnson, the United States
Sentencing Commission has amended § 4B1.2(a) to remove the residual clause under the ʺcrime
of violenceʺ definition. See U.S. Sentencing Commission, Amendment to the Sentencing
Guidelines, at 2‐3 (Jan. 21, 2016), http://www.ussc.gov/sites/default/files/pdf/amendment‐
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second‐degree burglary would have qualified as a ʺcrime of violenceʺ under the
Guidelinesʹ residual clause. See Brown, 514 F.3d at 268‐69 (holding that New York
burglary in the third degree is a crime of violence under the residual clause); see also
United States v. Hurrell, 555 F.3d 122, 123‐24 (2d Cir. 2009) (per curiam) (same for
attempted burglary in the third degree). Indeed, the government concedes that Johnson
applies to the career offender Guidelines. Appelleeʹs Br. at 48 n.14. Accordingly,
Welchʹs conviction for second‐degree burglary does not qualify as a crime of violence
under the residual clause of § 4B1.2(a)(2).
Because the statute criminalizes conduct that does not fall exclusively
within § 4B1.2(a)(1)ʹs ʺuse of physical forceʺ clause or § 4B1.2(a)(2)ʹs enumerated
offenses, for the enhancement to apply, the government must have ʺshown that the plea
ʹnecessarilyʹ rested on a fact identifying the conviction as a predicate offense.ʺ Savage,
542 F.3d at 964 (quoting Shepard v. United States, 544 U.S. 13, 24 (2005)).
The district court found that Welch ʺpled to attempted burglary of a
dwelling,ʺ Welch App. at 2501‐02, without requiring the government to demonstrate
that the conviction ʺʹnecessarilyʹ rested on facts identifying the conviction as one for a
ʹcrime of violence,ʹʺ Reyes, 691 F.3d at 458 (quoting Walker, 595 F.3d at 444). In looking
beyond the statutory definition to determine whether a conviction under a divisible
statute is a crime of violence, a district courtʹs inquiry is ʺcircumscribed.ʺ Id. A
process/reader‐friendly‐amendments/20160121_RF.pdf (effective August 1, 2016). ʺBurglary of
a dwellingʺ was also removed from § 4B1.2(a)(2)ʹs enumerated offenses. Id.
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sentencing court must limit itself ʺto examining the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.ʺ Shepard, 544 U.S. at 16.
In concluding that Welch pled to attempted burglary of a dwelling, the
district court relied on the PSRʹs factual description of the circumstances surrounding
the burglary conviction ‐‐ which include allegations that three dwellings were
burglarized, PSR ¶ 67. Courts, however, are prohibited from relying on facts in the PSR
to determine whether a conviction qualifies as a predicate offense. Reyes, 691 F.3d at
459 (ʺAs a general matter, reliance on a federal PSRʹs factual description of a defendantʹs
pre‐arrest conduct to determine whether a prior offense constitutes a ʹcrime of violenceʹ
under U.S.S.G. § 4B1.2(a)(1) is prohibited.ʺ). Here, the district court went beyond the
limited matters permitted in Shepard and relied instead on the factual description of the
offense in the PSR.
In sum, Welchʹs conviction for attempted burglary in the second degree
was not categorically a crime of violence, nor did the district court base its
determination that the conviction was for a crime of violence on one of the sources
approved in Shepard.3 As the career offender provision requires two predicate offenses,
3 The PSR also states that Welch pled guilty to attempted burglary in the third
degree, PSR ¶ 67, which can also be accomplished by burglarizing a building other than a
dwelling. See N.Y. Penal Law § 140.20 (ʺA person is guilty of burglary in the third degree when
he knowingly enters of remains unlawfully in a building with intent to commit a crime
therein.ʺ). Therefore, for the same reasons, Welchʹs convictions for burglary in the third degree
12
on this record, Welch does not qualify for the enhancement on the grounds relied on by
the district court.
* * *
We have considered all of defendantsʹ additional arguments and find
them to be without merit. For the reasons stated herein, the judgments of the district
court are AFFIRMED, except that we REMAND for the district court to vacate Welchʹs
sentence and to resentence him consistent with this order.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
do not qualify as a crimes of violence under § 4B1.2(a) absent the governmentʹs demonstration
that one of the convictions necessarily rested on facts identifying it as a crime of violence, Reyes,
691 F.3d at 458, as established by Shepard‐approved documents.
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