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United States v. Arline

United States Court of Appeals, Second Circuit

August 30, 2016

United States of America, Appellee,
v.
Paul Arline, AKA Face, et al., Defendants, Anthony Boykin, AKA Double O, Justin Simmons, AKA Justo, Defendants-Appellants.

          Argued: April 25, 2016

         Appeal from a final judgment of the United States District Court for the Southern District of New York (McMahon, J.). Following a jury trial, Defendant- Appellant Justin Simmons was convicted, inter alia, of two counts of possession of a firearm in furtherance of a crime of violence or drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court sentenced Simmons to a five- year term of imprisonment for one of the convictions under § 924(c). Pursuant to § 924(c)(1)(C), the court also sentenced Simmons to a twenty-five-year term of imprisonment for the second § 924(c) conviction, each sentence to run consecutively to the other. On appeal, Simmons challenges his sentence on the ground that (1) in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), the fact of whether he had a "second or subsequent" § 924(c) conviction should have been found by the jury, and (2) one or the other of his convictions under § 924(c) was multiplicitous because they involved potentially overlapping conduct.

         We hold that Alleyne does not alter our Court's prior holding in United States v. Anglin, 284 F.3d 407 (2d Cir. 2002) (per curiam), that the existence of a "second or subsequent" § 924(c) conviction is a sentencing factor that need not be submitted to a jury. We further hold that Simmons's two § 924(c) convictions were not multiplicitous because there was an ample basis for the jury to convict Simmons for two separate violations of § 924(c). Consequently, that there was no jury instruction requiring the jury to find that the guns subject of each § 924(c) charge must have been possessed on separate occasions did not amount to plain error. For the same reasons, it was not plain error for the district court to find implicitly at sentencing that the two § 924(c) convictions were based on separate conduct, thereby subjecting Simmons to mandatory minimum, consecutive sentences based on a "second or subsequent" § 924(c) conviction.

         We address in a separate summary order filed with this opinion Simmons's challenges to his conviction for participating in a racketeering conspiracy.

          Benjamin Greenwald, The Law Office of Benjamin Greenwald, New Windsor, New York, for Defendant-Appellant.

          Michael D. Maiman, Assistant United States Attorney (Emil J. Bove, III, Michael A. Levy, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.

          Before: Walker, Calabresi, Hall, Circuit Judges.

          PER CURIAM.

         Following a jury trial, Defendant-Appellant Justin Simmons was convicted of participating in a racketeering enterprise and conspiracy, in violation of 18 U.S.C. §§ 1961, 1962(c) and (d), and a narcotics conspiracy, in violation of 21 U.S.C. § 846. He was also convicted of two counts of possession of a firearm in furtherance of a crime of violence or drug trafficking crime, in violation of 18 U.S.C. § 924(c): one for possession of a firearm in furtherance of the racketeering enterprise and conspiracy and the other for possession of a firearm in furtherance of the narcotics conspiracy. The district court sentenced Simmons to a five-year term of imprisonment for one of the § 924(c) convictions. Pursuant to § 924(c)(1)(C)-which provides for a mandatory minimum of twenty-five years' imprisonment for a "second or subsequent" conviction under § 924(c)-the court sentenced Simmons to a twenty-five-year term of imprisonment for the second § 924(c) conviction, each to run consecutively to the other and to the sentences imposed for the racketeering and narcotics convictions, for a total term of fifty years' imprisonment.

         On appeal, Simmons argues, with respect to that part of his sentence based on the firearms convictions, that (1) the fact of whether he had a "second or subsequent" § 924(c) conviction should have been determined by the jury, and (2) one or the other of his convictions under § 924(c) was multiplicitous because they involved potentially overlapping conduct. For the following reasons, the judgment is AFFIRMED.[1]

         BACKGROUND

         In 2013, Simmons was charged with multiple offenses stemming from his involvement with the Bloods gang operating out of Newburgh, New York ("Newburgh Bloods"). Count One charged him with participating in a racketeering enterprise, in violation of 18 U.S.C. §§ 1961 and 1962(c), and set forth six racketeering acts, all of which related to murder, attempted murder, or robbery, except for predicate act five, which consisted of a narcotics distribution conspiracy. Count Two charged Simmons with participating in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). The conduct underlying both Counts One and Two was alleged to have occurred "[f]rom at least in or about 2006, up to and including in or about March 2013, " App'x 256, 263. Count Twelve charged Simmons with participating in a conspiracy to distribute and possess with intent to distribute 280 grams or more of a controlled substance, in violation of 21 U.S.C. § 846, "[f]rom at least in or about 2004, up to and including in or about September 2011." App'x 274.

         Simmons was also charged with two counts of violating § 924(c). Count Thirteen charged Simmons with using and carrying firearms during and in relation to, and possession of firearms in furtherance of, the narcotics conspiracy described in Count Twelve, [f]rom at least in or about 2004, up to and including in or about September 2011." App'x 275. Count Seventeen charged him with using and carrying firearms during and in relation to, and possession of firearms in furtherance of, a crime of violence, namely, the racketeering enterprise and conspiracy charged in Counts One and Two, but "on occasions other than those described" in Count Thirteen (among other counts). App'x 277-78.[2]

         At trial, the Government introduced evidence connecting Simmons to numerous firearms. With respect to the firearms possessed in conjunction with the racketeering enterprise and conspiracy, the jury heard testimony that Simmons was in possession (or aided in the possession) of a gun on three occasions: (1) when he and another member of the Newburgh Bloods were arrested in January 2008 while driving through the neighborhood of a rival gang; (2) when Simmons passed along one of his guns to a fellow Newburgh Blood in 2009; and (3) when Simmons was on Lander St. in Newburgh with a fellow member of the Newburgh Bloods.

         As for the firearms possessed in connection with the narcotics conspiracy, the Government offered testimony that numerous guns were hidden in a neighborhood block located on Lander St. in Newburgh where the Newburgh Bloods sold crack cocaine. These so-called "block guns" were to be used when "needed, " Trial Tr. 250, and were kept for "protection" from "other gangs" in the course of selling drugs, Trial Tr. 851. The jury heard ...


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