10-1527-cr (L)
United States v. Massey
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 14th day of March, two thousand twelve.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
STEFAN R. UNDERHILL,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
10-1527-cr (L)
-v.- 10-4682-cr (CON)
MICHAEL MASSEY and DEVON PATTERSON,
Defendants-Appellants.
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FOR DEFENDANT-APPELLANT RANDA D. MAHER, Great Neck,
MICHAEL MASSEY: New York.
FOR DEFENDANT-APPELLANT LAWRENCE GERZOG, New York,
DEVON PATTERSON: New York.
*
The Honorable Stefan R. Underhill, of the United States
District Court for the District of Connecticut, sitting by
designation.
FOR APPELLEE: ERIC J. GLOVER, Assistant United
States Attorney (Robert M. Spector,
Assistant United States Attorney,
on the brief), for David B. Fein,
United States Attorney for the
District of Connecticut, Hartford,
Connecticut.
Appeal from the United States District Court for the
District of Connecticut (Chatigny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgments of the district court are
AFFIRMED.
Defendants-appellants Devon Patterson and Michael
Massey appeal from their judgments of conviction for bank robbery
in violation of 18 U.S.C. § 2113(a) and (d), and bank robbery and
possession of a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. §§ 2113(a), (d), and 924(c)(1)(A),
respectively. We assume the parties' familiarity with the
largely undisputed facts and procedural history of this case,
which we reference only as necessary to explain our decision.
On September 22, 2008, two men committed an armed
robbery of the Naugatuck Valley Savings and Loan in Naugatuck,
Connecticut. While one robber guarded the lobby, brandishing his
firearm, the other filled a bag with approximately $24,100. The
robbers then fled the scene.
Minutes later, a patrol officer saw two men matching
the robbers' description driving in the near vicinity of the
crime. These two men were later identified as defendants
Patterson and Massey. The officer attempted to pull defendants
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over, and a high-speed car chase ensued. The chase ended when
defendants crashed into a telephone pole. Defendants were
arrested, and police recovered the following evidence from the
car: a handgun; $24,307 in cash; money bands from the bank;
"bait money" -- bills directly traceable to the bank through
their pre-recorded serial numbers; and various items of clothing
defendants wore during the robbery.
On February 16, 2009, Massey moved to suppress his
post-arrest statements to the police, alleging they were obtained
after he invoked his Fifth Amendment right to counsel. After two
evidentiary hearings and oral arguments, the district court
denied Massey's motion to suppress, concluding that the
government satisfied its burden of proving that Massey did not
invoke his right to remain silent or his right to counsel before
his confession. On December 11, 2009, after reopening the issue
and offering both sides the opportunity for additional argument,
the district court again denied Massey's motion.
On December 14, 2009, the first day of trial, Patterson
pled guilty. At his sentencing, Patterson argued for a Criminal
History Category ("CHC") of III, claiming that a CHC of IV
overstated the seriousness of his past criminal conduct. He also
argued for a reduced sentence to account for his emotional and
mental conditions. The district court concluded, inter alia,
that a CHC of IV did not substantially overrepresent the
seriousness of Patterson's criminal history, and that Patterson's
mental and emotional conditions did not warrant a lesser
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sentence. On November 8, 2010, Patterson was sentenced
principally to a term of 135 months' imprisonment.
On December 16, 2009, a jury convicted Massey of bank
robbery and possession of a firearm in furtherance of a crime of
violence. On April 15, 2010, Massey was sentenced principally to
a term of 152 months' imprisonment.
Defendants filed timely appeals.
I. Patterson
On appeal, Patterson argues that his sentence was
procedurally and substantively unreasonable because the district
court failed to consider, resolve, and make factual findings with
respect to Patterson's claims that a CHC of IV overstated his
past criminal conduct and that his emotional and mental
conditions warranted a reduced sentence.
A district court's sentencing determination is reviewed
under a "deferential" abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 41, 51 (2007); United States v.
Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc), cert. denied,
129 S. Ct. 2735 (2009). A sentence must be procedurally and
substantively reasonable. Gall, 552 U.S. at 51. A sentence is
procedurally unreasonable if a district court committed a
"significant procedural error," such as improperly calculating
the guidelines range, failing to consider the factors set forth
in 18 U.S.C. § 3553(a), or selecting a sentence based on clearly
erroneous facts. Id. A sentence is substantively unreasonable
only in "exceptional cases," where the district court's decision
is beyond "the range of permissible decisions." Cavera, 550 F.3d
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at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d
Cir. 2007)).
Here, the district court had no obligation to expressly
address every argument raised by Patterson at sentencing. See
United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010), cert.
denied, 131 S. Ct. 1698 (2011). Even so, the district court did
address Patterson's two claims. Based on our review of the
record, we conclude that Patterson's sentence was not
procedurally or substantively unreasonable. Indeed, as the
district court explained, Patterson committed a violent bank
robbery, his partner brandished a firearm, and the two were
involved in a high-speed car chase that ended in a crash.
Patterson's sentence of 135 months' imprisonment was well within
the range of permissible sentences. Accordingly, Patterson's
claims fail.
II. Massey
On appeal, Massey principally argues that the district
court committed reversible error in concluding that he had not
yet invoked his right to counsel when he made incriminating post-
arrest statements to the police.
This Court reviews factual determinations in connection
with a motion to suppress for clear error, viewing the evidence
in the light most favorable to the government. United States v.
Whitten, 610 F.3d 168, 193 (2d Cir. 2010). A factual finding is
clearly erroneous when "the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed." United States v. Iodice, 525 F.3d
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179, 185 (2d Cir. 2008) (internal quotations omitted). A
district court's credibility determination is given particularly
strong deference, and there is no clear error when there are two
permissible views of the evidence. See id. Furthermore, even if
a district court erroneously admits evidence obtained in
violation of the Constitution, reversal by our Court is
unwarranted when that error was harmless beyond a reasonable
doubt. United States v. Newton, 369 F.3d 659, 679 (2d Cir.
2004).
Here, the district court diligently held two
evidentiary hearings and two oral arguments, and then reopened
the suppression hearing for additional argument. There was no
clear error because, after carefully reviewing the record of
evidence, the district court made a permissible credibility
determination, crediting the consistent testimony of four police
officers as to the timing of Massey's confession and finding that
the government satisfied its burden. Further, even assuming
there was error, it was harmless beyond a reasonable doubt
because, even without Massey's statements, there was overwhelming
evidence to convict him, including the physical evidence found in
the car. Indeed, as the district court found, Massey and
Patterson were caught red-handed with the money from the bank
robbery, including the "bait money." Accordingly, Massey's claim
fails.
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CONCLUSION
We have considered Massey and Patterson's other
arguments and conclude they are without merit. Accordingly, the
judgments of the district court are AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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