16‐2915 United States v. Commerford
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 7th day of September, two thousand seventeen.
PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA, Appellee,
v. 16‐2915‐cr
BRADLEY COMMERFORD, Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR APPELLEE: SARALA V. NAGALA, Assistant United States Attorney (Marc H. Silverman, Assistant United States Attorney, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut.
FOR DEFENDANT‐APPELLANT: JAMES P. MAGUIRE, Assistant Federal Defender, for Terence S. Ward, Federal Defender, District of Connecticut, New Haven, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Bradley Commerford appeals the judgment of
conviction entered August 15, 2016, after a guilty plea, convicting him of distributing
heroin to an individual under 21 years of age, in violation of 21 U.S.C. §§ 841(a)(1) and
859. On August 12, 2016, the district court sentenced Commerford principally to 71
monthsʹ imprisonment. On appeal, Commerford challenges the procedural and
substantive reasonableness of his sentence. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
The record establishes that Commerford sold heroin in Connecticut in
January and February of 2016. On February 16, 2016, members of the Shelton Police
Department responded to a reported heroin overdose of an 18‐year‐old man. The 18‐
year‐old victimʹs 16‐year‐old girlfriend was present during her boyfriendʹs overdose
and medical resuscitation. Both later told law enforcement that they purchased the
heroin from Commerford. The 16‐year‐old said that she began regularly purchasing
heroin from him in January 2016. At least two other men overdosed from heroin
purchased from Commerford during this time: a 22‐year‐old man suffered a non‐fatal
overdose on February 16, 2016, and a 23‐year‐old man suffered a fatal overdose on
February 17, 2016.
Commerford pleaded guilty to distributing heroin to an individual under
21 years of age, in violation of 21 U.S.C. §§ 841(a)(1) and 859, in or about January
through February 2016. The record establishes that during this timeframe Commerford
sold heroin to at least two individuals who were then under the age of 21: the 18‐year‐
old man and his 16‐year‐old girlfriend. While the statute governs sales to anyone under
the age of 21, the Sentencing Guidelines provide for an additional enhancement if the
sale involves someone under the age of 18. See U.S.S.G. § 2D1.2(a)(3). Accordingly,
based on Commerfordʹs sales to the 16‐year‐old girlfriend, the parties stipulated to a
base offense level of 26 in the written plea agreement, pursuant to § 2D1.2(a)(3) of the
Guidelines. After subtracting three levels for acceptance of responsibility and factoring
in Commerfordʹs placement in criminal history category III, the parties anticipated a
guidelines range of imprisonment of 57 to 71 months.
On August 12, 2016, Commerford appeared for sentencing. The parties
agreed that the guidelines range was 57 to 71 months imprisonment. The district court
heard from defense counsel, Commerfordʹs brother, Commerford himself, government
counsel, and family members and a friend of the 23‐year‐old man who died. The
district court then sentenced Commerford to 71 monthsʹ imprisonment, the top of the
recommended guidelines range. After objecting to the sentence, Commerford timely
appealed, challenging both the procedural and substantive reasonableness of his
sentence.
I. Procedural Reasonableness
We review the procedural reasonableness of a sentence under a
ʺdeferential abuse‐of‐discretion standard.ʺ United States v. Aldeen, 792 F.3d 247, 251 (2d
Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). ʺA district court commits
procedural error where it fails to calculate the Guidelines range . . . , makes a mistake in
its Guidelines calculation, or treats the Guidelines as mandatory.ʺ United States v.
Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (internal citations omitted). A district
court also commits procedural error when it ʺdoes not consider the § 3553(a) factors,ʺ
ʺrests its sentence on a clearly erroneous finding of fact,ʺ or ʺfails adequately to explain
its chosen sentence.ʺ Id.
Section 2D1.2 of the Sentencing Guidelines governs drug offenses
involving underage individuals and provides for a base offense level of 26 where ʺthe
offense involved a person less than eighteen years of age.ʺ U.S.S.G. § 2D1.2(a)(3). At
sentencing, Commerford argued that § 2D1.2(a)(3) was overbroad because it treats
dissimilar offenses similarly in that it fails to distinguish ʺbetween a 40‐year‐old who
targets children and a teenager selling to friends.ʺ Appʹx 47. On appeal, Commerford
reiterates this argument and asserts that the district court failed to recognize its
authority to vary from the guidelines based on his policy‐based challenge to
§ 2D1.2(a)(3). This argument fails.
There is no indication in the record that the district court misunderstood
its authority to vary from § 2D1.2(a)(3) based on a policy disagreement. See United
States v. Robinson, 799 F.3d 196, 201 (2d Cir. 2015) (ʺIn the absence of clear evidence of a
substantial risk that the judge misapprehended the scope of his departure authority, we
presume that a sentenc[ing] judge understood the scope of his authority.ʺ (citation
omitted)). The district court explicitly considered and rejected Commerfordʹs policy‐
based challenges to § 2D1.2(a)(3). Specifically, the district court ʺnote[d] that thereʹs a
request that I consider the nature of the base offense level of 26 in fashioning a sentence
here.ʺ Appʹx 200‐01.
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16‐2915 United States v. Commerford
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 7th day of September, two thousand seventeen.
PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA, Appellee,
v. 16‐2915‐cr
BRADLEY COMMERFORD, Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR APPELLEE: SARALA V. NAGALA, Assistant United States Attorney (Marc H. Silverman, Assistant United States Attorney, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut.
FOR DEFENDANT‐APPELLANT: JAMES P. MAGUIRE, Assistant Federal Defender, for Terence S. Ward, Federal Defender, District of Connecticut, New Haven, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Bradley Commerford appeals the judgment of
conviction entered August 15, 2016, after a guilty plea, convicting him of distributing
heroin to an individual under 21 years of age, in violation of 21 U.S.C. §§ 841(a)(1) and
859. On August 12, 2016, the district court sentenced Commerford principally to 71
monthsʹ imprisonment. On appeal, Commerford challenges the procedural and
substantive reasonableness of his sentence. We assume the partiesʹ familiarity with the
underlying facts, procedural history, and issues on appeal.
The record establishes that Commerford sold heroin in Connecticut in
January and February of 2016. On February 16, 2016, members of the Shelton Police
Department responded to a reported heroin overdose of an 18‐year‐old man. The 18‐
year‐old victimʹs 16‐year‐old girlfriend was present during her boyfriendʹs overdose
and medical resuscitation. Both later told law enforcement that they purchased the
heroin from Commerford. The 16‐year‐old said that she began regularly purchasing
heroin from him in January 2016. At least two other men overdosed from heroin
purchased from Commerford during this time: a 22‐year‐old man suffered a non‐fatal
overdose on February 16, 2016, and a 23‐year‐old man suffered a fatal overdose on
February 17, 2016.
Commerford pleaded guilty to distributing heroin to an individual under
21 years of age, in violation of 21 U.S.C. §§ 841(a)(1) and 859, in or about January
through February 2016. The record establishes that during this timeframe Commerford
sold heroin to at least two individuals who were then under the age of 21: the 18‐year‐
old man and his 16‐year‐old girlfriend. While the statute governs sales to anyone under
the age of 21, the Sentencing Guidelines provide for an additional enhancement if the
sale involves someone under the age of 18. See U.S.S.G. § 2D1.2(a)(3). Accordingly,
based on Commerfordʹs sales to the 16‐year‐old girlfriend, the parties stipulated to a
base offense level of 26 in the written plea agreement, pursuant to § 2D1.2(a)(3) of the
Guidelines. After subtracting three levels for acceptance of responsibility and factoring
in Commerfordʹs placement in criminal history category III, the parties anticipated a
guidelines range of imprisonment of 57 to 71 months.
On August 12, 2016, Commerford appeared for sentencing. The parties
agreed that the guidelines range was 57 to 71 months imprisonment. The district court
heard from defense counsel, Commerfordʹs brother, Commerford himself, government
counsel, and family members and a friend of the 23‐year‐old man who died. The
district court then sentenced Commerford to 71 monthsʹ imprisonment, the top of the
recommended guidelines range. After objecting to the sentence, Commerford timely
appealed, challenging both the procedural and substantive reasonableness of his
sentence.
I. Procedural Reasonableness
We review the procedural reasonableness of a sentence under a
ʺdeferential abuse‐of‐discretion standard.ʺ United States v. Aldeen, 792 F.3d 247, 251 (2d
Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). ʺA district court commits
procedural error where it fails to calculate the Guidelines range . . . , makes a mistake in
its Guidelines calculation, or treats the Guidelines as mandatory.ʺ United States v.
Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (internal citations omitted). A district
court also commits procedural error when it ʺdoes not consider the § 3553(a) factors,ʺ
ʺrests its sentence on a clearly erroneous finding of fact,ʺ or ʺfails adequately to explain
its chosen sentence.ʺ Id.
Section 2D1.2 of the Sentencing Guidelines governs drug offenses
involving underage individuals and provides for a base offense level of 26 where ʺthe
offense involved a person less than eighteen years of age.ʺ U.S.S.G. § 2D1.2(a)(3). At
sentencing, Commerford argued that § 2D1.2(a)(3) was overbroad because it treats
dissimilar offenses similarly in that it fails to distinguish ʺbetween a 40‐year‐old who
targets children and a teenager selling to friends.ʺ Appʹx 47. On appeal, Commerford
reiterates this argument and asserts that the district court failed to recognize its
authority to vary from the guidelines based on his policy‐based challenge to
§ 2D1.2(a)(3). This argument fails.
There is no indication in the record that the district court misunderstood
its authority to vary from § 2D1.2(a)(3) based on a policy disagreement. See United
States v. Robinson, 799 F.3d 196, 201 (2d Cir. 2015) (ʺIn the absence of clear evidence of a
substantial risk that the judge misapprehended the scope of his departure authority, we
presume that a sentenc[ing] judge understood the scope of his authority.ʺ (citation
omitted)). The district court explicitly considered and rejected Commerfordʹs policy‐
based challenges to § 2D1.2(a)(3). Specifically, the district court ʺnote[d] that thereʹs a
request that I consider the nature of the base offense level of 26 in fashioning a sentence
here.ʺ Appʹx 200‐01. In responding to Commerfordʹs policy argument that
§ 2D1.2(a)(3) is overbroad, the district court explained that ʺcourts have discretion to
take into account the individual circumstances of the defendant whoʹs under
consideration. Thatʹs expected to happen and Iʹve done that here.ʺ Appʹx 201. In
responding to Commerfordʹs argument that § 2D1.2(a)(3) is ʺvery rarely applied,ʺ Appʹx
167, the district court reasoned ʺthat this is a provision thatʹs not used very frequently
. . . because we . . . donʹt have a lot of people who are engaged in selling to teenagers
who wind up getting federally prosecuted because their conduct does not rise to that
level of seriousness,ʺ Appʹx 201. The district court thus considered and rejected
Commerfordʹs policy‐based challenges to § 2D1.2(a)(3).
II. Substantive Reasonableness
A sentence imposed by the district court is substantively unreasonable
only if it ʺcannot be located within the range of permissible decisions.ʺ Cavera, 550 F.3d
at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). Accordingly, we
will set aside sentencing decisions only in ʺexceptional cases,ʺ as we will not substitute
our judgment for that of the district court. Id.
The district court imposed a within‐guidelines sentence of 71 monthsʹ
imprisonment, citing Commerfordʹs prior arrests (including two for drug trafficking
offenses) and his status on probation when he committed the instant offense, the
overdoses, the fact that Commerford was on his way to purchase more drugs at the
time of his arrest, his lack of sincere remorse, and the fact that a different charging
decision could have been made, based on the death of the individual who purchased
drugs from Commerford, which would have triggered a twenty‐year mandatory
minimum term of imprisonment. The district courtʹs sentence was not substantively
unreasonable.
Commerford argues that the district court gave insufficient weight to a
number of mitigating considerations, including his own heroin addiction, his history of
trauma and the resulting post‐traumatic stress disorder, his youth, and the small
quantity of heroin involved in the offense. The district court carefully considered these
factors, however, and reasonably determined its sentence of 71 monthsʹ imprisonment
would achieve specific deterrence and ʺjust punishmentʺ for an ʺegregiousʺ offense.
Appʹx 207.
Commerford also argues that his placement in criminal history category
III overstated the seriousness of his past criminal activity because he never served any
prior term of imprisonment. The district court, however, reviewed Commerfordʹs three
arrests in 2014, his court‐ordered substance abuse treatment in 2015, the sentences
imposed in state court in 2016, and Commerfordʹs status on probation when he
committed the instant offense, and concluded ʺ[i]t is not at all inappropriate that the
defendantʹs criminal history points are taken for what they are, especially in light of the
fact that he was continuing to engage in criminal conduct when he was on probation.ʺ
Appʹx 203.
Accordingly, the district courtʹs sentence was not substantively
. . .
We have considered all of Commerfordʹs remaining arguments and
conclude they are without merit. Accordingly, we AFFIRM the judgment of the district
court.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk