Case Information
*1 14 ‐ 4656 ‐ cr States et al.
UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At stated term Court Appeals for Second Circuit, held at Thurgood Marshall Courthouse, Foley Square, City New York, th day October, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
EDWARD R. KORMAN, Judge. *
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UNITED STATES OF AMERICA,
Appellee ,
Nos. ‐ ‐ cr(L), ‐ ‐ cr(CON), cr(CON), VINCENT CLARK, RICHARD ANDERSON, PHILIP cr(CON) BRYANT, ROBERT SANTOS,
Defendants Appellants. ** ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
* Judge Edward R. Korman, Eastern New York, sitting designation. ** The Clerk directed amend case caption set forth above. *2 FOR DEFENDANTS ‐ APPELLANTS: J OHN M ERINGOLO , Meringolo Law,
New York, NY, for Defendant ‐ Appellant Richard Anderson; D AVID A. M ORAGHAN , Smith, Keefe, Moraghan & Waterfall, Torrington, CT, for Defendant Appellant Philip Bryant;
Vito Castignoli, Milford, CT, for Defendant Appellant Vincent Clark; R ICHARD A. R EEVE (Allison M. Near, on brief ), Sheehan, Reeve & Near, New Haven, CT, for Defendant Appellant Robert APPELLEE: M ARC H. S ILVERMAN (Sandra S. Glover, brief ), Assistant Attorneys, for Deirdre M. Daly, Attorney for Connecticut, New Haven, CT.
Appeals judgments Connecticut (Ellen Bree Burns, Judge ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED conviction with respect defendants appellants Richard Philip Robert are AFFIRMED ; respect defendant appellant Vincent GRANTED ; terms imprisonment release ; *3 and the the appeal of assessment construed as summary affirmance and
Defendants Anderson, Bryant, Clark, and of the District (Burns, J.) following their convictions narcotics offenses violation U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C), 846. We assume parties’ familiarity facts record the prior proceedings, which refer only as necessary explain our decision.
First, Anderson challenges Court’s conduct during trial, alleging among other things its failure rule evidentiary objections deprived him fair trial. disagree because Anderson has demonstrated any prejudice resulting alleged errors. also evidentiary rulings made Court. None rulings were “manifestly erroneous,” nor, any event, did evidence admitted result challenged rulings “affect[] [the defendants’] substantial rights.” Lee, —F.3d —, WL at *12 Aug. 2016) (quotation marks omitted). Bryant separately contends evidence showed multiple conspiracies among Kevin Wilson defendants appellants, single conspiracy *4 alleged in indictment. Bryant’s argument lacks merit. A rational jury could find that “each alleged member agreed to participate in what he knew to be a collective venture directed toward common goal.” United States v. Sureff, F.3d 225, (2d Cir. 1994) (quoting United States v. Maldonado Rivera, F.2d 934, (2d Cir. 1990)). next address Santos’s argument that he never reached “meeting
minds” Wilson regarding narcotics distribution because he intended to rob Wilson all along, District Court should provided jury instruction this defense. The adequately instructed jury on meeting minds requirement, was permitted to (and did) make this argument jury event. See States v. Rowland, F.3d 115–16 (2d Cir. 2016); v. Vasquez, F.3d 574, 577–78 (2d Cir. 1996). For similar reasons, reject Santos’s challenge buyer seller instruction. Coplan, all aspects their sentences. All their contentions lack merit. Contrary Bryant’s assertions, had ample support record, including acquitted conduct, find Bryant distributed grams cocaine base. Vaughn, *5 430 F.3d 518, 526 (2d Cir. 2005). Santos’s argument that his prior conviction should been submitted jury foreclosed by Almendarez Torres v. United States, U.S. 224, 247 (1998). And properly determined, based facts confirmed Anderson during his plea colloquy state court, that his conviction qualified as a “controlled substance offense” under § 4B1.2(b) Sentencing Guidelines. See v. Savage, F.3d 959, (2d Cir. 2008); cf. v. Moreno, F.3d 223, 228–29 (2d Cir. 2016). In light parties’ arguments after briefing, we also conclude determination was consistent Mathis States, S. Ct. (2016).
Finally, address Clark’s appeal. Clark pleaded guilty agreed sentence did exceed months’ imprisonment, a five year term release, a $10 million fine. Clark now appeals his sentence, which fell within range set forth plea agreement, addition $100 mandatory assessment. Counsel has filed an Anders brief simultaneous motion withdraw counsel, Government has filed motion appeal. Upon due consideration, granted. Gomez Perez, also grant *6 dismiss Clark’s appeal with respect to Clark’s terms of imprisonment and supervised release. Because special assessment is mentioned the appellate waiver provision Clark’s plea agreement, he is barred challenging it appeal. See, e.g., Cunningham, Nevertheless, to special assessment lacks merit. U.S.C. § 3013.
considered all defendants’ remaining arguments and conclude they are without merit. For foregoing reasons, with respect to are AFFIRMED ; motion with respect is GRANTED ; Government’s motion dismiss respect appeal Clark’s terms imprisonment release is GRANTED ; assessment construed summary affirmance THE COURT:
Catherine O = Hagan Wolfe, Clerk