458 F. App'x 79

2d Cir.

2012

UNITED STATES of America, Appellee, v. Clinton COX, Defendant-Appellant, JASON Cox, a.k.a. JC, Willie Grant, Defendants.

No. 11-509-cr.

United States Court of Appeals, Second Circuit.

Feb. 6, 2012.

461 Fed. Appx. 79

PRESENT: RALPH K. WINTER, REENA RAGGI, DENNY CHIN, Circuit Judges.

his testimony, and, overall, gave “an extremely poor impression that he had memorized a script.” Additionally, the IJ found that Zheng could not provide basic details regarding the event that led to his altercation with Chinese officials and his wife‘s alleged forced abortion. Because the IJ was in the best position to observe Zheng‘s manner while testifying, and identified specific examples of problematic testimony, we accord his demeanor finding particular deference. See Shu Wen Sun v. BIA, 510 F.3d 377, 380-81 (2d Cir.2007) (per curiam); Li Hua Lin v. U.S. Dep‘t of Justice, 453 F.3d 99, 109 (2d Cir.2006).

Moreover, as the BIA found, even if credible, Zheng did not demonstrate harm rising to the level of persecution because he was not eligible for relief based on the harm suffered by his wife, Shi Liang Lin v. U.S. Dep‘t of Justice, 494 F.3d 296, 309 (2d Cir.2007) (en banc), and the single incident with family planning officials in which he was punched several times in the chest did not rise to the level of persecution, see Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir.2011) (per curiam) (holding that a minor beating by family planning officials who did not have “any intention of arresting or detaining” petitioner did not constitute persecution where no lasting physical injury resulted). Contrary to Zheng‘s assertion, because his past harm did not rise to the level of persecution, he is not entitled to a presumption of a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1) (2001). Furthermore, because Zheng was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). We do not reach Zheng‘s claim for CAT relief as he did not exhaust it before the BIA. See Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).

Jonathan Edelstein, Esq., New York, NY, for Appellant.

Alina P. Reynolds, Robert M. Spector, Assistant United States Attorneys, for David B. Fein, United States Attorney for the District of Connecticut, Bridgeport, CT, for Appellee.

SUMMARY ORDER

Defendant Christopher Cox was convicted after trial on substantive and conspiratorial counts of trafficking in 50 grams or more of crack cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, as well as multiple counts of using a firearm in the course of his drug-trafficking crimes, see 18 U.S.C. § 924(c)(1)(A). On January 26, 2011, the district court vacated Cox‘s firearm convictions under 28 U.S.C. § 2241 in light of Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007), and the case was scheduled for resentencing. He now appeals the four concurrent 360-month prison terms imposed on resentencing of the narcotics crimes. Cox contends that his new sentence is procedurally and substantively unreasonable, an argument we review “under a ‘deferential abuse-of-discretion standard.‘” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We assume the parties’ familiarity with the underlying facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Procedural Reasonableness

a. Guidelines Calculation

Cox submits that the district court erred in calculating his Sentencing Guidelines range by (1) assigning a base offense level of 34 based on his conspiracy to distribute 1.5 kilograms of crack, see U.S.S.G. § 2D1.1(c)(3) (2010), and (2) adding a four-level enhancement for his leadership role in a conspiracy involving five or more persons, see id. § 3B1.1(a).

Insofar as Cox contends that the district court misapplied the law of the case doctrine in relying on findings made at his initial sentencing, we are not persuaded. While vacatur of the firearms counts permitted the district court to resentence Cox on the drug counts without regard to the mandate rule, see United States v. Triestman, 178 F.3d 624, 628-30 (2d Cir.1999), this did not preclude it from adhering to the court‘s prior determinations as to disputed facts in the absence of cogent and compelling reasons to revisit them, see United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir.2002); see also United States v. Tenzer, 213 F.3d 34, 39 (2d Cir.2000) (identifying such reasons to include “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice“). In concluding that Cox failed to present cogent reasons for revisiting Judge Nevas‘s detailed findings as to drug quantity and role, Judge Thompson made plain that he had reviewed pertinent parts of the record and satisfied himself that the challenged Guidelines findings were supported by the evidence.

To the extent Cox complains that the findings depend on the testimony of unreliable co-conspirators, we identify no clear error. As we explained on Cox‘s first appeal, it was within the district court‘s discretion to credit the co-conspirator witnesses’ trial testimony. See United States v. Cox, 59 Fed.Appx. 437, 441 (2d Cir.2003) (summary order). Further, it was in the discretion of the district court—even though a different judge assumed responsibility for resentencing—to adhere to that determination in the absence of a compelling reason to revisit it. See generally United States v. Garcia, 413 F.3d 201, 227-28 (2d Cir.2005) (recognizing that de- cisions are rendered by district court, not individual judge).

b. Parsimony Clause

Cox submits that the district court erred in applying the appellate standard of review, i.e., reasonableness, rather than the parsimony clause of 18 U.S.C. § 3553(a) in resentencing him to a 360-month prison term. The record indicates otherwise. The district court expressly acknowledged its parsimony clause obligation both when it quoted the statutory obligation to ensure that any sentence imposed was “sufficient but not greater than necessary” to serve the purposes specified in § 3553(a), Resentencing Tr. at 44, and when it stated that, although it thought “the Guideline range would be a reasonable sentence,” it was obliged to answer the further question “whether it was the lowest reasonable sentence,” id. at 45. These statements, together with the district court‘s articulation of the § 3553(a) factors and its detailed explanation for imposing the challenged sentence despite an initial inclination to vary from the Guidelines, satisfactorily demonstrate application of the parsimony clause.

c. Mandatory Minimum Calculation

Cox posits that the district court erred in identifying his mandatory minimum sentence as 20 years rather than the reduced mandatory minimum provided in the Fair Sentencing Act of 2010 (“FSA“). The government concedes error, consistent with the directive of the Attorney General, see Eric H. Holder, Jr., Attorney General, Memorandum for All Federal Prosecutors: Application of the Statutory Mandatory Minimum Sentencing Laws for Crack Cocaine Offenses Amended by the Fair Sentencing Act of 2010, July 15, 2011, available at http://www.fd.org/pdf_lib/Holder%20FSA%20memo%207.15.11.pdf (last visited Feb. 1, 2012), but submits that the error is harmless because “the record indicates clearly that the district court would have imposed the same sentence in any event,” United States v. Jass, 569 F.3d 47, 68 (2d Cir.2009) (internal quotation marks omitted). We agree.¹

The record shows that the district court imposed its sentence without regard to the mandatory minimum penalty. Instead, it determined that a term of 360 months’ incarceration—the low end of the post-FSA Guidelines range of 360 months to life and a term 120 months longer than the presumed statutory minimum—was appropriate in light of “the nature and circumstances of the offense and the history and characteristics of the defendant.” Resentencing Tr. at 46. Such circumstances permit us to conclude that any error in the calculation of the mandatory minimum sentence was harmless. See United States v. Deandrade, 600 F.3d 115, 120 (2d Cir.2010) (holding that purported calculation error in mandatory minimum was harmless because challenged sentence was 60 months longer than presumed minimum and was imposed according to Guidelines without reference to statutory minimum).²

2. Substantive Reasonableness

Cox contends that his Guidelines sentence of 360 months is substantively unreasonable. We are not persuaded.

We will identify a sentence as substantively unreasonable “only in exceptional cases where the trial court‘s decision cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted). Although we do not presume that Guidelines sentences are reasonable, we nonetheless “recognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006).

Cox maintains that his sentence, representing the bottom of his Guidelines range, is substantively unreasonable for the same reason that we held a sentence under the child pornography Guidelines unreasonable in United States v. Dorvee, 616 F.3d 174, 184-85 (2d Cir.2010), i.e., that the crack cocaine Guidelines are not based on the Sentencing Commission‘s independent empirical research but are, instead, legislatively mandated by Congress. Cox misreads Dorvee. We did not hold, as Cox seems to suggest, that any time Congress orders the Sentencing Commission to adopt or amend certain Guidelines, the results are subject to a “de facto presumption of unreasonableness.” Def.‘s Br. 23. Rather, the substantive error identified in Dorvee turned on factors beyond the child pornography Guidelines’ “highly unusual provenance,” 616 F.3d at 188, notably factual errors and misstatements of law, see id. at 183-84, that are not present here.

Moreover, although the Court in Kimbrough v. United States, 552 U.S. 85, 110, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), held that a district court is within its discretion to determine that application of the crack cocaine Guidelines yields a sentence that is greater than necessary, it does not follow that it is substantively unreasonable for a district court to impose a sentence pursuant to those Guidelines. Indeed, in this case, the district court identified a number of factors that prompted it to conclude that a 360-month sentence was warranted despite its original inclination to sentence outside the crack cocaine Guidelines.

Cox‘s further contention that the identified factors cannot bear the weight assigned them by the district court is without merit. See United States v. Cavera, 550 F.3d at 191; see also Gall v. United States, 552 U.S. at 51 (stating that appellate court “must give due deference” to district court‘s weighing of § 3553(a) factors). The district court stated that a sentence of 360 months was necessary in light of (1) the serious and harmful nature of Cox‘s drug trafficking, reflected not only in the quantity of drugs dealt but in the expansion of the conspiracy from Connecticut to South Carolina, and (2) the need for specific deterrence in light of Cox‘s demonstrated recidivism. The latter concern was reinforced by the district court‘s finding that Cox failed to accept responsibility for his conduct and had attempted to perpetrate a fraud on the sentencing court. Although Cox takes exception to these findings and the weight assigned them, we identify no abuse of discretion so as to take the 360-month sentence out of the broad range of sentences that are substantively reasonable for the crimes of conviction. See United States v. Jones, 531 F.3d 163, 174 (2d Cir.2008).

We have considered Cox‘s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of conviction is AFFIRMED.

AFFIRMED.

Notes

To the extent our precedent has not applied the Fair Sentencing Act retroactively, see ; but see ; , we are not free to depart absent a contrary ruling by the Supreme Court or this court sitting en banc. See . But we need not consider that question further in light of our conclusion that any error would be harmless.

The same harmlessness conclusion would obtain with respect to Cox‘s pro se complaint of procedural error in the identification of his past state narcotics conviction as a “felony drug offense” for purposes of 21 U.S.C. §§ 841(b)(1)(A) and 851. In fact, however, the district court committed no error. It appropriately applied the modified categorical test and examined Cox‘s plea colloquy, during which Cox admitted to distributing cocaine and cocaine base and, thus, committing a “felony drug offense.” See .

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