United States v. Candelario , 486 F. App'x 907 ( 2012 )

10-5061-cr
United States v. Carter
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of June, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 J. GARVAN MURTHA,
10 District Judge.*
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 10-5061-cr
19
20 EDWIN CANDELARIO, VINCE REEDER,
21
22 Defendants,
23
24 ELEXIUS CARTER,
25
26 Defendant-Appellant.
27
28
29 FOR APPELLANT: STEPHEN LANCE CIMINO, Office of Stephen
30 Lance Cimino, Syracuse, NY.
*
The Honorable J. Garvan Murtha, of the United States District Court for
the District of Vermont, sitting by designation.
1 FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States
2 Attorney (John M. Katko, Assistant United
3 States Attorney, on the brief) for
4 Richard S. Hartunian, United States
5 Attorney for the Northern District of New
6 York, Syracuse, NY.
7
8 Appeal from the United States District Court for the
9 Northern District of New York (Scullin, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the Appellant’s conviction be AFFIRMED.
13 However, we VACATE and REMAND for resentencing proceedings
14 consistent with this order.
15 Appellant Elexius Carter appeals from a judgment of the
16 United States District Court for the Northern District of
17 New York (Scullin, J.). Carter was convicted after a jury
18 trial of one count of possession with intent to distribute
19 fifty or more grams of a substance containing cocaine base,
20 in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The
21 district court sentenced Carter to 175 months’
22 incarceration. We assume the parties’ familiarity with the
23 underlying facts, the procedural history, and the issues
24 presented for review.
25 Between his counseled and pro se briefs, Carter raises
26 no fewer than nine issues for review. We address only those
27 that merit discussion. First, Carter contends that the
2
1 police had no reasonable basis to initiate an investigatory
2 stop of Carter and that they had no probable cause to arrest
3 Carter. Therefore, in Carter’s view, the evidence flowing
4 from his stop and arrest should have been suppressed. It is
5 well established that “a police officer may briefly detain
6 an individual for questioning if the officer has a
7 reasonable suspicion that the individual is, has been, or is
8 about to be engaged in criminal activity.” United States v.
9 Padilla, 548 F.3d 179, 186 (2d Cir. 2008) (internal
10 quotation marks omitted). Courts look to the totality of
11 the circumstances to determine whether police had a
12 “particularized and objective basis to suspect criminal
13 activity.” Id. (internal quotation marks omitted). In
14 other words, the officer “must be able to point to specific
15 and articulable facts which, taken together with rational
16 inferences from those facts, reasonably warrant [the]
17 intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). A
18 showing of reasonable suspicion requires “considerably less”
19 than a showing of probable cause. United States v. McCargo,
20 464 F.3d 192, 197 (2d Cir. 2006). “Probable cause to arrest
21 a person exists if the law enforcement official, on the
22 basis of the totality of the circumstances, has sufficient
3
1 knowledge or reasonably trustworthy information to justify a
2 person of reasonable caution in believing that an offense
3 has been or is being committed by the person to be
4 arrested.” United States v. Patrick, 899 F.2d 169, 171 (2d
5 Cir. 1990).
6 After a thorough review of the record, we are satisfied
7 that the police had a particularized and objective basis to
8 suspect that Carter was engaged in criminal activity when
9 they stopped him. This reasonable suspicion turned into
10 probable cause to arrest Carter as police obtained more
11 information during the course of their inquiry. Carter’s
12 claim that the evidence flowing from his stop and arrest
13 should be suppressed is without merit.
14 Carter also argues that evidence obtained from the
15 search of 116 Beecher Street pursuant to a judicially issued
16 warrant should be suppressed. Specifically, Carter contends
17 that (1) the information used to obtain the warrant was the
18 product of his challenged stop and arrest, which Carter
19 believes were unlawful, and (2) “[t]he warrant was the
20 product of speculation, surmise, and suspicion, and not
21 probable cause.” See Carter Br. 20. We reject the first
22 argument because both Carter’s stop and arrest were lawful.
4
1 As to the argument that the warrant was not supported by
2 probable cause, we deem the issue waived. “It is a settled
3 appellate rule that issues adverted to in a perfunctory
4 manner, unaccompanied by some effort at developed
5 argumentation, are deemed waived.” Tolbert v. Queens
6 College, 242 F.3d 58, 75 (2d Cir. 2001) (emphasis added)
7 (internal quotation marks omitted); see Frank v. United
8 States, 78 F.3d 815, 833 (2d Cir. 1996), vacated on other
9 grounds by, 521 U.S. 1114 (1997). In any event, the
10 argument is without merit.
11 In his pro se brief, Carter argues that the district
12 court erred in calculating his criminal history category
13 because it improperly assessed two “recency” points under a
14 provision of the Guidelines that had been repealed prior to
15 sentencing. See U.S.S.G. § 4A1.1(e) (2008 ed.); U.S.S.G.
16 App. C., amend. 742 (effective Nov. 1, 2010). Although
17 Carter did not object at the time of sentencing, we may
18 correct such an error if the appellant demonstrates that the
19 error was plain, affected his substantial rights, and
20 “seriously affects the fairness, integrity or public
21 reputation of judicial proceedings.” See United States v.
22 Marcus, 130 S. Ct. 2159, 2164 (2010) (internal quotation
5
1 marks and alteration omitted). Because the error here
2 resulted in Carter being placed in a higher criminal history
3 category, thus resulting in a higher Guidelines range, we
4 remand for resentencing. Significantly, the government
5 concedes that the district court committed plain error and
6 that remand is appropriate.
7 We have reviewed all of Carter’s remaining arguments
8 and after a thorough review of the record and relevant law
9 find them to be without merit.
10 For the foregoing reasons, Carter’s conviction is
11 hereby AFFIRMED. We VACATE and REMAND for resentencing
12 proceedings consistent with this order.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
6