17‐2388
United States v. Jaquan McIntosh
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 ASUMMARY ORDER@). A PARTY
CITING TO 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 21st of December, two thousand eighteen.
PRESENT:
DENNIS JACOBS,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 17‐2388
Jaquan McIntosh, AKA BJ,
Defendant – Appellant,
Sean McIntosh, AKA Slimmy, Hasani Fitts, AKA Has,
Preston Pasley, AKA Smoove, Laquan Parrish, AKA
MadDog, AKA Quanzas, Andre Bent, AKA Dula,
Aaron Rodriguez, AKA Gunz, AKA Cito, Mark Clarke,
AKA Gritty, AKA Mark the Gritty Shark, Bowlin
Wallingford, AKA BK, AKA Bay Kay, Rodrigo Gonzalez,
AKA Frenchy, Elijah Brown, AKA Lil Eli, Joshua Brown,
Kayshawn Campbell, AKA Fresh, Robert Pope, AKA Big
Bert, David Mattison, AKA Dave, AKA Daddy, Kevin
Mattison, AKA Kev, Jayvon Carter, AKA Jay, AKA Jigga,
Marcel Bent, AKA Marcellus, AKA Cellie, Terrence Pasley,
AKA Fresh, Daquan Anderson, AKA BD, Dante Gregory,
AKA Smiley, Cintron Powell, AKA C‐Live, Walter Jernigan,
AKA Lil G, AKA G‐Boo, Mouhahamet Cherry, AKA Momo,
Emmanuel McKenzie, AKA Manny Fresh, Lloyd Rodriguez,
AKA T‐Boy, Nicholas Bailey, AKA Nicholas Dale, AKA Nick,
Shawn Walker, AKA Styles, Peter Lewis, AKA Pebbs, Ronald
Matthews, AKA Ronnie, Travis Thompson, Kareem Sanders,
AKA Reem, Jonathan Cummings, AKA J‐Starz, Wayne Leon,
AKA Wayne Brady, Danny Jones, AKA Red, AKA Casper,
Lamor Miles, AKA Ls, Robert Miles, Patrick Little John,
AKA Pat, Andrew Moncrieffe, AKA Drew, Gary Arrington,
AKA G., Williams Rodriguez, AKA Will, Melvin Rodriguez,
AKA YB, Brandon Anderson, AKA Big BD, Emile Anderson,
AKA Kev, AKA Fetti, Devin Walker, AKA Dev, John Alvarez,
AKA Gotti, Courtney Green, AKA C‐Rock, Erick Canales, AKA
EC, Gregory Cameron, AKA Biggs, AKA Bigga, AKA GG,
Jabriel Lewis, AKA Breeze, AKA Breezy, Vaughn Washington,
AKA Murder, Bruce Washington, AKA BJ, Damon Parrish,
Roberto Munoz, AKA Jr., Alonzo McIntosh, AKA Manuke,
Kraig Lewis, AKA K‐Murda, Kavone Horton, AKA Styles,
Defendants.
_________________________________
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FOR DEFENDANT‐APPELLANT: A. James Bell, Law Office of A. James Bell,
Brooklyn, NY.
FOR APPELLEE: Rachel Maimin, Karl Metzner, Assistant United
States Attorneys, for Geoffrey S. Berman,
United States Attorney for the Southern
District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Kaplan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Jaquan McIntosh pleaded guilty to racketeering conspiracy in violation of
18 U.S.C. § 1962(d), pursuant to a plea agreement with the Government. The
United States District Court for the Southern District of New York (Kaplan, J.)
sentenced McIntosh principally to 280 months’ imprisonment. McIntosh
appeals his sentence as substantively unreasonable. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues
presented for review.
We review a district court’s sentence for substantive reasonableness, which
“amounts to review for abuse of discretion.” United States v. Cavera, 550 F.3d
180, 187 (2d Cir. 2008) (en banc). This discretion is broad: although district
courts must consult the Sentencing Guidelines when imposing a sentence, they
are not bound by the range and may “tailor the appropriate punishment to each
offense.” Id. A sentence is substantively unreasonable only if it “cannot be
located within the range of permissible decisions.” Id. at 189 (internal quotation
marks omitted). “[O]nly those sentences that are so ‘shockingly high, shockingly
low, or otherwise unsupportable as a matter of law’ that allowing them to stand
would ‘damage the administration of justice’” are substantively unreasonable.
United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (quoting United
States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).
The district court adopted the Presentence Report (“PSR”), which made
the following findings of McIntosh’s involvement in the conspiracy. McIntosh
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was a member of 2Fly YGz, a criminal organization that operated in the Bronx
and engaged in narcotics trafficking, robbery, attempted murder, and murder.
On October 5, 2013, McIntosh murdered Donville Simpson, a member of a rival
criminal organization, during a shootout between the two organizations.
McIntosh was also involved in an earlier shootout in which 2Fly members were
armed. At that shootout, two people apparently associated with the rival
organization, as well as a 14‐year‐old bystander, were shot, though it is unclear
who fired the shots that hit the two victims apparently associated with the rival
organization. All three victims survived.
McIntosh’s stipulated guidelines range was 210 to 262 months’
imprisonment. The district court varied upward from that range and the
recommendation of probation, sentencing McIntosh principally to 280 months’
imprisonment. The judge explained the upward variance:
It is necessary for general deterrence. This is a man with a history of
some violence. This was a murder and involvement in an attempted
murder. I cannot in good conscience say that a sentence that would
have Mr. McIntosh on the street materially earlier than the time that
the loss of [Donville Simpson] is not an everyday occurrence for [his
mother] and the sorrow for her would be appropriate. Now,
obviously, none of us knows anyone’s lifespan, but I just think that
to impose just punishment in the circumstances, a sentence of this
length is the minimum necessary.
App’x 84. The judge also commented on the seriousness of the violent crime
and drug trafficking engaged in by 2Fly in the neighborhood it inhabited in the
Bronx, and the effect those crimes had on that neighborhood.
McIntosh claims that his sentence is substantively unreasonable because
the district court gave “unreasonable weight to unsupported allegations of
attempted murders.” Appellant’s Br. 11. He argues that his involvement in
the attempted murders‐‐which the judge cited as one basis for his sentence‐‐is
disputed. But the record discloses that the district judge understood McIntosh’s
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involvement in the attempted murders and properly considered that
involvement.
The district judge was entitled to rely on the factual findings in the PSR‐‐
which were adopted without objection at sentencing‐‐in determining McIntosh’s
sentence.1 The PSR found that “Jaquan McIntosh is responsible for the murder
of Donville Simpson and being involved in the attempted murder [of two
victims].” PSR ¶ 67. It also set forth in some detail the extent of McIntosh’s
involvement in the attempted murders. The district judge therefore did not err
by relying on these undisputed findings in the PSR in fashioning his sentence,
and there is no evidence that he relied on any other “unsupported” allegations
regarding the attempted murders.
Notably, at sentencing, McIntosh’s attorney specifically raised with the
court a dispute the parties had over the extent of McIntosh’s involvement in the
attempted murders. The district judge responded that he “understood”
McIntosh’s position and that the finding in the PSR was “reworded in response
to [the attorney’s] comments.” App’x 82. The district judge thus made clear
on the sentencing record that he understood McIntosh’s arguments regarding the
extent of his involvement in the attempted murders and made a finding that took
those arguments into account.
To the extent McIntosh argues that the district judge gave undue weight
to the attempted murders, that is also belied by the record. The district judge
specifically noted the various factors that influenced the sentence, which
included not only the attempted murders, but also the murder of Donville
Simpson and the other findings of serious violence and drug crimes committed
by the 2Fly organization. In explaining the upward variance at sentencing, the
district judge chiefly focused on the murder of Donville Simpson and the need to
punish McIntosh for the loss he caused to Simpson’s family. The judge made
1 One change was made to McIntosh’s PSR at the sentencing. The Government and
McIntosh agreed that the probation officer erred in the calculation of McIntosh’s
criminal history category, and the district court corrected that error.
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only a passing reference to the attempted murders. Accordingly, the district
judge’s sentence was not substantively unreasonable.
McIntosh also argues that the district court committed error by failing to
include a statement in the written judgment setting forth the reasons for the
upward variance, as required by 18 U.S.C. § 3553(c)(2). That argument is
meritless. The Statement of Reasons in this case sets forth the specific reasons
for the upward variance: the breadth of the violent crimes and drug infractions
committed by 2Fly and the effect of those crimes on the neighborhood in the
Bronx; McIntosh’s murder of Donville Simpson and its effect on the family of Mr.
Simpson; McIntosh’s history of violence; and McIntosh’s involvement in the
attempted murder. This explanation satisfies the statutory requirements. See
United States v. Rattoballi, 452 F.3d 127, 138 (2d Cir. 2006) (abrogated in part on
other grounds by Kimbrough v. United States, 552 U.S. 85 (2007)).
For the foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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United States v. Jaquan McIntosh
Combined Opinion