14-4753
United States v. Cook
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 Courthouse, 40 Foley Square, in the City of New York, on the 5th day of
January, two thousand seventeen.
Present:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 14-4753
TARIQ GILL, AKA Swamp, ISAIAH WILSON,
Defendants,
JOHN WILLIAM COOK, Jr., AKA Ghost,
Defendant-Appellant.
________________________________________________
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For Appellee: Edward Diskant, Sarah Eddy McCallum, Assistant
United States Attorneys, Of Counsel, for Preet Bharara,
United States Attorney for the Southern District of New
York, New York, NY.
For Defendant-Appellant: Michael Baldassare, Baldassare & Mara, LLC, Newark,
N.J.
Appeal from the United States District Court for the Southern District of New York
(Nathan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant John Cook was the target of a sting operation that resulted in Cook
agreeing to engage in an armed robbery of drug dealers transporting cocaine and heroin and to
distribute the bounty of that robbery. On the date of the planned robbery, Cook arrived at the
scene of the would-be crime and was arrested. A jury subsequently convicted him of conspiring
to distribute 500 grams or more of cocaine and 100 grams or more of heroin in violation of 21
U.S.C. §§ 841, 846 and of possessing a firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c). The District Court for the Southern District of New York
(Nathan, J.) sentenced him to 240 months’ imprisonment. Cook now challenges on appeal (1)
the district court’s denial of his pretrial motion to dismiss the Indictment based on outrageous
government conduct, (2) the district court’s submission of a lesser-included offense charge to the
jury, and (3) his sentence of 240 months’ imprisonment.
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I. Motion to Dismiss the Indictment
Prior to trial, Cook moved unsuccessfully to dismiss the Indictment on the ground that
the sting operation that led to his arrest constituted outrageous government conduct that
necessitates the dismissal of all charges. We review the district court’s decision denying Cook’s
motion de novo. United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991).
The Due Process Clause protects against government conduct that “is ‘so outrageous that
common notions of fairness and decency would be offended were judicial processes invoked to
obtain a conviction.’” United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011) (quoting
United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997)). To establish a due process violation
on this ground, it is not enough to “show that the government created the opportunity for the
offense, even if the government’s ploy is elaborate and the engagement with the defendant is
extensive.” Id. Rather, the government’s participation must “shock[] the conscience,” United
States v. Chin, 934 F.2d 393, 398 (2d Cir. 1991) (quoting Rochin v. California, 342 U.S. 165,
172 (1952)), which ordinarily means the government must engage in “coercion or a violation of
the defendant’s person,” Al Kassar, 660 F.3d at 121.
We agree with the district court that Cook fails to satisfy this exacting standard. Cook
offers no evidence in support of his argument beyond the observation that his conviction resulted
from a sting operation. However, the mere fact that the government used a sting operation is
insufficient to show that the government “exceed[ed] due process limits.” United States v.
Cromitie, 727 F.3d 194, 219 (2d Cir. 2013).
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II. The Jury Instructions
Cook argues that the district court erred in allowing the jury to determine (1) whether the
drug trafficking conspiracy with which he was charged involved either five kilograms or more of
cocaine, or 500 grams or more of cocaine and (2) whether the conspiracy involved either one
kilogram or more of heroin, or 100 grams or more of heroin. The higher drug quantity figures,
which the jury rejected, carry a maximum sentence of life imprisonment, 21 U.S.C. §
841(b)(1)(A); the lower figures constitute a lesser-included offense and carry a maximum
sentence of 40 years’ imprisonment, 21 U.S.C. § 841(b)(1)(B). A lesser-included offense charge
is proper only when there is a “‘disputed factual element’ which would allow the jury rationally
to conclude that the defendant is guilty of the lesser offense, but not the greater offense.” United
States v. Harary, 457 F.2d 471, 475 (2d Cir. 1972) (quoting Sansone v. United States, 380 U.S.
343, 350 (1965)). Cook contends that, because he pursued an entrapment defense at trial and, as
a result, did not challenge the evidence of drug quantity that supported the higher quantity, there
was no “disputed factual element” for the jury to resolve. Thus, Cook concludes, the district
court should have instructed the jury only to find whether Cook was guilty of conspiring to
distribute the higher quantity, and his conviction of conspiring to distribute the lower quantity
should be vacated.
We need not reach this argument because Cook has waived it. Prior to trial, the parties
jointly submitted a proposed charge that included the instruction on quantity about which Cook
now complains. “[A] defendant who has ‘invited’ a challenged charge ‘has waived any right to
appellate review,’” United States v. Hertular, 562 F.3d 433, 444 (2d Cir. 2009) (quoting United
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States v. Giovanelli, 464 F.3d 346, 351 (2d Cir. 2006) (per curiam)), and this type of “true
waiver” precludes even plain error review, United States v. Quinones, 511 F.3d 289, 321 (2d Cir.
2007).
Cook’s argument that, despite initially requesting the quantity instruction, he later
objected to it at the charge conference is belied by the record. At the start of the charge
conference, the district court asked the parties to “work through page by page, and line by line, to
the extent you have objections or requests,” but to “bracket entrapment [issues] until we get
through everything else.” J.A. 614. At no point during the first phase of the conference did
Cook object to the quantity instruction. Once the parties had moved on to discuss whether the
jury should be given an entrapment instruction and the district court had asked Cook for his
argument “with respect to entrapment on Count One,” J.A. 652, Cook then mentioned quantity
for the first time: “[W]e are going to ask the jury to find, even—I looked at the Court’s verdict
sheet—the quantity. I just think that this case, that’s just not how this case went in. If this was a
hand-to-hand, street-level conspiracy, maybe it’s different.” J.A. 653. To lodge a proper
objection, a party must “fairly alert[] the court and opposing counsel to the nature of the claim,”
United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180 (2d Cir. 1990), and no reasonable
listener would have understood Cook’s comment, coming as it did in the middle of a discussion
of entrapment that spanned 40 pages of the transcript, to have constituted an objection to the
instruction requiring the jury to make a quantity finding.
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Accordingly, we decline to review the district court’s submission of the lesser-included
offense charge to the jury, and we affirm Cook’s conviction of conspiring to distribute 500 grams
or more of cocaine and 100 grams or more of heroin.
III. Cook’s Sentence
Cook challenges his sentence in three ways. First, he argues that his sentence results in
an unwarranted disparity in relation to the sentences imposed on his co-defendants and on the
targets of other sting operations. Second, he contends that the district court, when determining
what quantity of drugs Cook’s conspiracy involved for purposes of the Guidelines calculation,
improperly found facts that the jury had rejected in its verdict, that is, that the district court held
Cook responsible for “acquitted conduct.” Third, Cook complains that the district court
committed error when it refused to grant him an offense-level adjustment for “acceptance of
responsibility.” “We review sentences for abuse of discretion, a standard that ‘incorporates de
novo review of questions of law (including interpretation of the [Sentencing] Guidelines) and
clear-error review of questions of fact.’” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir.
2010) (quoting United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008)).
First, we reject Cook’s claim that the district court’s sentence creates an unwarranted
sentencing disparity. See 18 U.S.C. § 3553(a)(6) (directing district courts to consider “the need
to avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct”). To the extent that Cook claims that the district court
procedurally erred by failing to discuss the possibility of a sentencing disparity, see United States
v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (“A district court commits procedural
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error where it fails to . . . consider the § 3553(a) factors.”), the record is to the contrary. The
district court explicitly considered the sentences imposed on Cook’s co-defendants, but found
that Cook deserved a greater sentence. Although the district court never considered aloud the
possibility that Cook’s sentence may result in an unwarranted disparity from the sentences
imposed on targets of similar sting operations, as Cook now argues is the case, Cook never raised
the issue below, and we do not require sentencing judges to engage in “robotic incantations”
discounting arguments never offered. Cf. United States v. Corsey, 723 F.3d 366, 374 (2d Cir.
2013) (per curiam) (quoting United States v. Crosby, 397 F.3d 103, 113-14 (2d Cir. 2005)).
We likewise find that the district court committed no substantive sentencing error when it
sentenced Cook to 240 months’ imprisonment. The aim of 18 U.S.C. § 3553(a)(6) is to
“eliminat[e] disparity on a national level,” United States v. Tejeda, 146 F.3d 84, 87 (2d Cir.
1998) (per curiam), and so we reject Cook’s claim of unwarranted disparity with respect to his
co-defendants. In any event, the district court persuasively explained that it considered Cook’s
greater sentence necessary in light of the seriousness of Cook’s criminal history (he has
previously been convicted of manslaughter) and Cook’s role in the offense (he recruited his co-
defendants). As for the sentences imposed on defendants whose convictions resulted from other,
similar sting operations in the Southern District of New York, even if an intra-district disparity
could give rise to a valid claim, Cook would still have failed to establish any improper disparity
here. Cook observes that defendants prosecuted after other sting operations received lighter
sentences, but he fails to provide sufficient details regarding the nature of those sting operations,
and the defendants’ Guidelines ranges to allow us to conclude that an improper disparity exists.
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Cf. United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005) (“A well-founded claim of
disparity . . . assumes that apples are being compared to apples.”). In the one example for which
Cook does offer some additional information, the defendant’s Guidelines range was 57 to 71
months’ imprisonment, which pales in comparison to the range of 228 to 270 months applicable
to Cook. Therefore, although Cook’s sentence may have resulted in a “sentencing difference,”
this is not the type of “forbidden ‘disparity’” that the Guidelines endeavor to eliminate. United
States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006).
Second, the district court, when making its Guidelines calculation, did not err in finding
that the trafficking conspiracy involved 18 kilograms of cocaine and five kilograms of heroin.
As Cook effectively admits in his challenge to the district court’s quantity instruction, the
evidence was more than sufficient to sustain the district court’s finding. And although the jury
did not convict Cook of conspiring to distribute this amount, we have repeatedly held that “even
acquitted conduct may be treated as relevant for purposes of Guidelines calculations ‘so long as
that conduct has been proved by a preponderance of the evidence.’” United States v. Jones, 531
F.3d 163, 176 (2d Cir. 2008) (quoting United States v. Watts, 519 U.S. 148, 157 (1997) (per
curiam)).
Third, we find no error in the district court’s decision not to grant Cook an offense level
adjustment for acceptance of responsibility. See U.S.S.G. § 3E1.1(a) (“If the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the offense level by 2
levels.”). “Whether the defendant has accepted responsibility is a factual question, and ‘[a]
district court’s determination in this regard should not be disturbed unless it is “without
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foundation.”’” United States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994) (quoting United States v.
Irabor, 894 F.2d 554, 557 (2d Cir. 1990)). Here, the district court found that Cook did not
qualify for the adjustment because he attempted to downplay his willingness to use violence and
because he attempted to shift the blame for his conduct to the government’s informant. Cook has
not demonstrated that these findings, or the district court’s ultimate conclusion that Cook did not
accept responsibility, were clearly erroneous. Accordingly, we affirm the district court’s ruling.
IV. Conclusion
We have considered all of Cook’s arguments and find in them no basis for reversal.
Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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