18-1928-cr
United States v. Feaster
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 1st day of December, two thousand twenty.
PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges,
TIMOTHY C. STANCEU,
Judge. *
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UNITED STATES OF AMERICA,
Appellee,
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EMMANUEL FEASTER,
Defendant-Appellant.
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* Chief Judge Timothy C. Stanceu, of the United States Court of International
Trade, sitting by designation.
FOR APPELLEE: SEAN C. ELDRIDGE, Assistant United
States Attorney, for James P. Kennedy,
Jr., United States Attorney for the
Western District of New York,
Rochester, New York.
FOR DEFENDANT-APPELLANT: ANDREW LEVCHUK, Andrew
Levchuk, Counsellor at Law, LLC,
Amherst, Massachusetts.
Appeal from the United States District Court for the Western District of
New York (Geraci, Ch. J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Emmanuel Feaster appeals from a final judgment
entered June 26, 2018 convicting him, following a jury trial, of possession of a firearm
and ammunition following a felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). He was sentenced principally to 60 months' imprisonment. On appeal,
Feaster argues that (i) the district court erred in instructing the jury on § 922(g)(1) and
(ii) his sentence was both procedurally and substantively unreasonable. We assume the
parties' familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
Just after midnight on September 27, 2015, Feaster was pulled over by a
Rochester police officer after he was observed driving an all-terrain vehicle ("ATV") --
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without a license plate and headlights off -- against traffic. When the police officer
asked Feaster for his driver's license, Feaster ran off, but he tripped over a curb and fell.
After Feaster attempted to get up, the pursuing officer pushed him to the ground. A
struggle ensued, and the officer observed Feaster reach for his waistband and throw an
object. The officer then heard what sounded like metal hitting the pavement. After
Feaster was arrested, a specialist on the police force recovered a loaded handgun from
the area where the officer heard metal hit the pavement. Feaster, who was 19 years old
and had at least one prior felony conviction, was indicted for possession of a firearm
and ammunition after a felony conviction.
Feaster represented himself at trial, with the assistance of standby counsel.
He stipulated that prior to the events in question, he was convicted "of a crime
punishable by imprisonment for a term exceeding one year." App'x at 129. He also
admitted that he understood that his prior conviction, which resulted in a sentence of
two years in state prison, was a felony. When the district court instructed the jury, it
did not explain that the jury, to return a guilty verdict, had to find that Feaster knew he
possessed a firearm and also knew at the time of his possession that he had been
convicted of a felony punishable by a year or more of incarceration. At the time, the
Supreme Court had not yet decided United States v. Rehaif, in which it held that "the
word 'knowingly' [in § 922(g)] applies both to the defendant's conduct and to the
defendant's status." 139 S. Ct. 2191, 2194 (2019). Under Rehaif, "[t]o convict a defendant,
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the Government therefore must show that the defendant knew he possessed a firearm
and also that he knew he had the relevant status when he possessed it." Id. The jury
returned a guilty verdict.
At sentencing, the district court explained how it arrived at Feaster's
offense level, reviewed Feaster's criminal history and characteristics, and explained that
it was required to "consider a number of factors, including the seriousness of [Feaster's]
offense." App'x at 201. The court adopted the Findings of Fact and Guidelines
calculation set forth in the presentence investigation report (the "PSR") with one minor
correction that is not relevant to this appeal. The district court sentenced Feaster
principally to 60 months' imprisonment, which it acknowledged was an upward
variance from the Guidelines range of 27-33 months' imprisonment. The court
explained that it imposed an above-Guidelines sentence "based upon the defendant's
history and based upon the seriousness of his conduct in this case as well as in the
previous case." App'x at 202. It also noted its sentence was intended to deter Feaster's
conduct and the conduct of others. This appeal followed.
1. Jury Instructions
Because Feaster did not object to the jury instructions at trial, we review
his challenge for plain error. United States v. Prado, 815 F.3d 93, 100 (2d Cir. 2016).
Under plain error review, we will reverse only if "(1) there is an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
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appellant's substantial rights . . . ; and (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings." Id. The government concedes
that Feaster has satisfied the first two prongs of the plain error standard, but it argues
that Feaster's claim fails on the third and fourth prongs.
In United States v. Miller, which involved a Rehaif claim on similar facts as
those presented here, this Court affirmed the lower court's conviction and sentence
under the fourth prong of plain error review. 954 F.3d 551, 559-60 (2d Cir. 2020). We
reasoned that because the defendant would have likely sought to exclude -- and been
successful in excluding -- the details pertaining to his prior offense as an "unnecessary
and prejudicial embellishment" on his stipulation to his § 922(g) qualifying status, we
would not penalize the government for failing to introduce evidence that, "prior to
Rehaif, it would have been precluded from introducing." Id. We also considered that
the defendant's PSR showed that the defendant's prior conviction resulted in a term of
imprisonment greater than one year, thereby removing any doubt that the defendant
was aware of his § 922(g) qualifying status. Id. Here, the same is true, as Feaster
concedes. See Appellant's Reply Br. at 2. Feaster's PSR indicates that he pled guilty to a
felony -- attempted criminal possession of a weapon -- and that he was sentenced to two
years' imprisonment. Moreover, he stipulated that he was convicted "of a crime
punishable by imprisonment for a term exceeding one year." App'x at 129.
Additionally, if the government had attempted to introduce evidence about his prior
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felony conviction, Feaster likely would have sought to exclude such evidence and been
successful in doing so. Accordingly, the district court's erroneous jury instruction did
not rise to the level of reversible plain error because it did not "seriously affect[] the
fairness, integrity or public reputation of judicial proceedings," Prado, 815 F.3d at 100,
and we affirm his conviction.
2. Sentence
Generally, "[t]his court reviews the procedural and substantive
reasonableness of a sentence under a deferential abuse-of-discretion standard." United
States v. Richardson, 958 F.3d 151, 153 (2d Cir. 2020) (internal quotation marks and
brackets omitted). Where, as here, a defendant did not object to his sentence below, we
review for plain error. United States v. Erskine, 717 F.3d 131, 135 (2d Cir. 2013).
In reviewing the procedural reasonableness of a sentence, this Court
considers whether the district court committed a "significant procedural error." United
States v. Rosa, 957 F.3d 113, 117 (2d Cir. 2020) (internal quotation marks omitted). A
district court commits procedural error where it "fails to calculate the Guidelines range,"
"makes a mistake in its Guidelines calculation," "treats the Guidelines as mandatory," or
"does not consider the [18 U.S.C.] § 3553(a) factors, or rests its sentence on a clearly
erroneous finding of fact." United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en
banc). "A sentence is substantively unreasonable if it is manifestly unjust or shocks the
conscience." Richardson, 958 F.3d at 153-54 (internal quotation marks and brackets
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omitted). When a district court imposes a sentence outside of the recommended
Guidelines range, it "must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance." Cavera,
550 F.3d at 189. "[A] district court's decision to vary from the Guidelines may attract
greatest respect when the sentencing judge finds a particular case outside the heartland
to which the Commission intends individual Guidelines to apply." Id. at 192 (internal
quotation marks omitted). "Where, instead, the sentencing judge varies from the
Guidelines based solely on the judge's view that the Guidelines range fails properly to
reflect § 3553(a) considerations even in a mine-run case, . . . [a] closer review may be in
order." Id. (internal quotation marks omitted).
Feaster's sentence was procedurally reasonable. The district court
properly calculated Feaster's Guidelines range and considered the § 3553(a) sentencing
factors, including defendant's characteristics, the seriousness of his crime, and the need
to deter such conduct. See Rosa, 957 F.3d at 119 (noting that "[w]e have declined to insist
that the district court . . . discuss every § 3553(a) factor individually" (internal quotation
marks omitted)). Moreover, "[a] district court may satisfy [its] obligation" to make
factual findings supporting a sentence enhancement "by adopting the factual findings in
the PSR, either at the sentencing hearing or in the written judgment." United States v.
Espinoza, 514 F.3d 209, 212 (2d Cir. 2008). Shortly after the district court imposed an
upward variance, it explicitly adopted the findings in the PSR, which outlined, inter alia,
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the defendant's past conduct. Accordingly, Feaster's sentence was procedurally
reasonable.
Feaster's sentence was also substantively reasonable. It does not "shock
the conscience," Richardson, 958 F.3d at 155, that Feaster's conduct -- namely, driving
recklessly, resisting arrest, and carrying and throwing a loaded handgun -- would be
punishable by 60 months' imprisonment, in light of his criminal history. Importantly,
the district court explained on the record why it decided to give an above-Guidelines
sentence: It was concerned about Feaster's past criminal conduct and the seriousness of
the offense. The district court noted that the instant conviction was Feaster's second
serious illegal firearm conviction, his criminal history category was a level IV, and he
committed this offense while on parole for a prior offense. Further, the district court
noted the dangers posed by Feaster's behavior; by removing the loaded weapon from
his waistband and throwing it away, Feaster could have seriously injured himself or the
law enforcement officer. The district court explicitly stated that it needed to deter such
future conduct. These justifications were "sufficiently compelling to support the degree
of the variance," Cavera, 550 F.3d at 189, and Feaster's challenge cannot overcome plain
error review. Accordingly, we affirm the district's court's judgment.
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We have considered Feaster's remaining arguments and conclude they are
without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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