United States v. Lighten , 525 F. App'x 44 ( 2013 )

11-4667-cr
United States v. Lighten
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 20th day of May, two thousand thirteen.
PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
-v.- 11-4667-cr
MONTU LIGHTEN,
Defendant-Appellant.
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FOR APPELLEE: Stephan J. Baczynski, Joel
Violanti, Assistant United States
Attorneys, for William J. Hochul,
Jr., United States Attorney for
*
The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
the Western District of New York,
Buffalo, New York.
FOR DEFENDANT-APPELLANT: Patrick J. Brown, LoTempio &
Brown, P.C., Buffalo, New York.
Appeal from the United States District Court for the
Western District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
VACATED IN PART and AFFIRMED IN PART.
Defendant-appellant Montu Lighten appeals the district
court's judgment entered November 1, 2011 following a jury
verdict convicting him of (1) possession with intent to
distribute at least five grams but less than twenty-eight grams
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B) (2008) ("Count One"); and (2) possession of at
least five grams but less than twenty-eight grams of cocaine
base, in violation of 21 U.S.C. § 844(a) ("Count Two"). On
October 20, 2011, the district court sentenced Lighten to
concurrent terms of 118 months' imprisonment on each count, to
be followed by two months' imprisonment for committing the
offense while released on bail in another case. See 18 U.S.C.
§ 3147.
On appeal, Lighten argues that: (1) the Government
failed to comply with its disclosure obligations; (2) the
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Government knowingly offered false testimony at trial; and (3)
his sentence must be vacated and remanded for a jury to
determine the quantity of cocaine base attributable to each
count of conviction. We assume the parties' familiarity with
the underlying facts, the procedural history of the case, and
the issues presented for review.
1. Alleged Discovery Violations
First, Lighten challenges the introduction at trial of
evidence of his in camera testimony before a state court judge
(in connection with a warrant application) that the drugs seized
from his home on July 9, 2009 belonged to him and that he
purchased them from Jamal Woods. Lighten alleges that he did
not know the Government would rely on this testimony until
twelve days before trial began, and that this delay violated the
Government's discovery obligations pursuant to the district
court's discovery order and Federal Rule of Criminal Procedure
16(a)(1)(A).
Ordinarily, we review a district court's evidentiary
rulings for abuse of discretion. United States v. Cadet, 664
F.3d 27, 32 (2d Cir. 2011). Where, as here, a defendant failed
to raise a discovery dispute with the district court, we review
only for plain error. See United States v. Maniktala, 934 F.2d
25, 27-28 (2d Cir. 1991); see also Fed. R. Crim. P. 52(b).
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Upon review of the record, we conclude that Lighten's
discovery claim is baseless. Contrary to Lighten's allegations,
his in camera statements to the state court judge were clearly
referenced during a suppression hearing held nine months before
trial. During the hearing, the Government agreed to provide
defense counsel with a transcript of Lighten's in camera
testimony, and counsel reserved the right to reopen the
suppression hearing should the transcript reveal any information
relevant to suppression. Counsel has not indicated that the
Government failed to provide the transcript. Further, even if
the Government delayed in providing notice of the statements,
Lighten has not shown that his substantial rights were affected,
as the Government notified him twelve days before trial of its
intent to rely on his admissions. Accordingly, we discern no
plain error here.
2. Introduction of Allegedly False Testimony
Next, Lighten alleges that the Government's case
against him was based on the false trial testimony of two
witnesses. Specifically, Lighten contends that Agent
Bongiovanni's trial testimony conflicted with his earlier
suppression hearing testimony regarding when and where Lighten
admitted that the seized drugs belonged to him. Lighten also
argues that Agent Palmieri's trial testimony conflicted with his
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earlier grand jury testimony concerning whether Lighten stated
that the drugs in the babysitter's bra belonged to him.
Reversal of a conviction based upon allegations of
"perjured testimony should be granted only with great caution
and in the most extraordinary circumstances." United States v.
Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). Reversal is not
warranted unless the appellant demonstrates that: "(i) the
witness actually committed perjury; (ii) the alleged perjury was
material; (iii) the government knew or should have known of the
alleged perjury at time of trial; and (iv) the perjured
testimony remained undisclosed during trial." United States v.
Zichettello, 208 F.3d 72, 102 (2d Cir. 2000) (alteration,
internal citations, and quotation marks omitted); see also
United States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995).
Lighten has not shown that Agents Bongiovanni or
Palmieri committed perjury. Although the challenged statements
may differ from the agents' prior testimony, they are not
necessarily inconsistent when read in context. Moreover, even
assuming the testimony was internally inconsistent, Lighten has
not shown that it was perjurious or that the prosecutors knew it
was perjurious. See United States v. Gambino, 59 F.3d 353, 365
(2d Cir. 1995) ("[E]ven a direct conflict in testimony does not
in itself constitute perjury."); Smithwick v. Walker, 758 F.
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Supp. 178, 186 (S.D.N.Y. 1991) ("A prior inconsistent statement
does not rise to the level of perjury."). Accordingly,
Lighten's perjury claim fails.
3. Request for a New Trial
Finally, Lighten contends that his convictions must be
vacated and the case remanded for a new trial in light of the
Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124
Stat. 2372 (effective Aug. 3, 2010) (the "FSA"). He makes two
arguments in this respect. First, Lighten notes that under the
FSA, the crime of simple possession in violation of 21 U.S.C.
§ 844(a) is a misdemeanor with a statutory maximum sentence of
one year, and he argues that his 118-month sentence on Count Two
exceeds the now-applicable statutory maximum. Second, he argues
that he is entitled to a new trial to determine the quantity of
cocaine base that he possessed with intent to distribute,
because the district court's finding that he possessed with
intent to distribute 19.6 grams of cocaine base was at odds with
the jury's verdict finding that he simply possessed at least 5
grams but less than 28 grams of cocaine base.
As to Lighten's first argument, we agree that
Lighten's 118-month sentence for simple possession exceeds the
statutory maximum sentence in light of the FSA, which applies
retroactively to Lighten because he was sentenced after the
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FSA's August 3, 2010 effective date. See Dorsey v. United
States, 132 S. Ct. 2321, 2336 (2012) (FSA applies to defendants
sentenced after FSA's August 3, 2010 effective date). No remand
is necessary, however, as the Government agrees that Lighten's
conviction for simple possession must be vacated. "[S]imple
possession, in violation of 21 U.S.C. § 844, is a lesser
included offense of possession with intent to distribute," in
violation of 21 U.S.C. § 841(a), United States v. Gore, 154 F.3d
34, 46 (2d Cir. 1998); accord United States v. Garcia-Duarte,
718 F.2d 42, 47 (2d Cir. 1983), and here, as discussed below,
the same factual transaction was the basis for both Counts One
and Two. Thus, the judgment of conviction for the lesser
included offense of simple possession must be vacated. See
United States v. White, 240 F.3d 127, 133 (2d Cir. 2001).
As to Lighten's second argument -- that a jury must
determine the quantity of cocaine base he possessed with intent
to distribute -- we affirm the district court's judgment.
Because Lighten did not raise this challenge before the district
court, our review is for plain error. See Gore, 154 F.3d at 41.
A district court may make factual findings at
sentencing about the drug quantity involved in the offense as
long as those findings do not raise the sentence above the
otherwise applicable statutory maximum. See United States v.
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Florez, 447 F.3d 145, 156 (2d Cir. 2006) (holding that district
court is not bound by jury's drug quantity finding at
sentencing); United States v. Thomas, 274 F.3d 655, 663 (2d Cir.
2001) (en banc) ("[I]t is error for a court to 'enhance' a
defendant's sentence above a statutory maximum based on drug
quantity if the Government has not charged drug quantity in the
indictment and proved it to a jury beyond a reasonable doubt.");
see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
("Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.").
Here, the district court was permitted to determine
the quantity of cocaine base involved in Count One because the
difference between 5 grams and 19.6 grams did not raise
Lighten's sentence above the otherwise applicable statutory
maximum, as determined by the jury.1 See Thomas, 274 F.3d at
663; Apprendi, 530 U.S. at 490. Although the FSA raised from
1
Lighten argues that if the jury were to find that he
possessed with intent to distribute only five grams of cocaine
base, then the sentence on Count One could not exceed sixty
months' imprisonment. We see no basis for this assertion.
Rather, under the FSA, the statutory maximum sentence for
possession with intent to distribute any amount of cocaine base
less than twenty-eight grams is twenty years' imprisonment. See
21 U.S.C. § 841(b)(1)(C) (2010).
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five grams to twenty-eight grams the threshold amount of cocaine
base triggering a statutory sentencing range of five to forty
years under 21 U.S.C. § 841(b)(1)(B)(iii), Lighten's sentence of
118 months on Count One is well below the twenty-year maximum
sentence now applicable to quantities of cocaine base less than
twenty-eight grams. See 21 U.S.C. § 841(b)(1)(C) (2010); United
States v. Gonzalez, 686 F.3d 122, 130 (2d Cir. 2012) ("If a
defendant is convicted only on a lesser unqualified drug charge,
he must be sentenced pursuant to § 841(b)(1)(C) . . . ."
(internal quotation marks omitted)).
Further, the district court properly found, based on
facts set forth in the Presentence Investigation Report ("PSR"),
that the entire 19.6 grams seized from Lighten's residence on
July 9, 2009 was involved in his offense of possession with
intent to distribute under 21 U.S.C. § 841(a)(1). No evidence
was presented at trial to suggest that there were two separate
quantities of drugs involved in Lighten's offense. The jury did
not find that any part of the cocaine base was for Lighten's
personal use. Cf. United States v. Williams, 247 F.3d 353, 358
(2d Cir. 2001) ("[W]e hold that, in calculating the quantity of
drugs relevant for purposes of sentencing under 21 U.S.C. § 841,
any fractional quantity of drugs intended for personal use must
be excluded."). Rather, the jury's finding on Count Two that
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Lighten possessed at least five grams but less than twenty-eight
grams of cocaine base was entirely consistent with the court's
finding that he possessed the entire 19.6 grams with intent to
distribute it. See Gore, 154 F.3d at 46. Further, the PSR
referred to a single quantity of cocaine base secreted in the
couch in Lighten's residence. At sentencing, the district court
confirmed that neither party objected to the PSR and adopted the
facts in the PSR as its findings of fact. We see no plain error
in the district court's factual finding that Lighten possessed
with intent to distribute 19.6 grams of cocaine base. See
United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009) (holding
that district court may satisfy factfinding obligations by
adopting factual statements in PSR, so long as PSR states enough
facts to permit meaningful appellate review).
Moreover, there is no reason to remand for
resentencing on Count One merely because Lighten's conviction on
Count Two is being vacated. The inclusion of Count Two did not
affect the original Guidelines calculations or lead the district
court to impose a greater sentence. See United States v.
Rosenthal, 454 F.2d 1252, 1255-56 (2d Cir. 1972). The PSR
calculated Lighten's base offense level as 22, based on the 19.6
grams of cocaine base seized from his residence on July 9, 2009.
See U.S. Sentencing Guidelines Manual § 2D1.1(c)(9) (at least
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16.8 grams but less than 22.4 grams of cocaine base results in
base offense level of 22). Based on Lighten's Criminal History
Category of VI, the court calculated the applicable Guidelines
range as 110 to 137 months' imprisonment and sentenced him to,
inter alia, 118 months' imprisonment on Count One. We see no
plain error here.
Finally, although the FSA raised the relevant
threshold amounts for cocaine base needed to trigger certain
mandatory minimums, such that the 19.6 grams of cocaine base
that Lighten possessed with intent to distribute would not now
trigger a five-year mandatory minimum sentence, compare 21
U.S.C. § 841(b)(1)(B)(iii) (2008) (providing a five gram
threshold for triggering a five-year mandatory minimum
sentence), with 21 U.S.C. § 841(b)(1)(B)(iii) (2010) (providing
a twenty-eight gram threshold for the same five-year mandatory
minimum sentence), we need not remand for resentencing on Count
One on this basis, for the district court made clear that the
sentence imposed was based on the Guidelines range, not the
mandatory minimum.
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We have considered Lighten's remaining arguments and
conclude that they lack merit. Accordingly, we VACATE Lighten's
conviction on Count Two and AFFIRM the judgment of the district
court in all other respects.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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