21-3130 United States v. Grandison
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 for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 13th day of February, two thousand twenty-three. 4 5 PRESENT: Steven J. Menashi, 6 Eunice C. Lee, 7 Sarah A. L. Merriam, 8 Circuit Judges. 9 ____________________________________________ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 v. No. 21-3130-cr 14 15 GRANT GRANDISON, 16 17 Defendant-Appellant. 18 ____________________________________________ 19
20 For Appellee: Alexandra N. Rothman, Danielle R. 21 Sassoon, Assistant United States Attorneys, 22 for Damian Williams, United States 1 Attorney for the Southern District of New 2 York, New York, NY. 3
4 For Defendant-Appellant: Matthew B. Larsen, Assistant Federal 5 Defender, Appeals Bureau, Federal 6 Defenders of New York, New York, NY. 7 8 Appeal from a judgment of conviction of the United States District Court for 9 the Southern District of New York (Wood, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 11 ADJUDGED, AND DECREED that the judgment of conviction entered by the 12 district court is AFFIRMED.
13 Defendant-Appellant Grant Grandison appeals from a judgment of 14 conviction for making a false statement to federal agents in violation of 18 U.S.C. 15 § 1001. On June 28, 2021, Grandison pleaded guilty pursuant to a plea agreement, 16 and on August 9, 2021, the district court entered an order accepting Grandison’s 17 plea. On December 14, 2021, the district court sentenced Grandison to 24 months’ 18 imprisonment. We assume the parties’ familiarity with the underlying facts, 19 procedural history, and issues on appeal.
20 Grandison’s conviction stems from his decision to harbor an old friend and 21 fugitive named Andre Sterling who was wanted for allegedly shooting a 22 Massachusetts state trooper during a traffic stop. Despite knowing that Sterling 23 was wanted by law enforcement, Grandison allowed Sterling to stay with him in 24 his Bronx apartment for ten to eleven days starting in late November 2020. Several 25 deputy U.S. marshals from the U.S. Marshals Service—as well as members of the 26 New York City Police Department and the Massachusetts State Police—visited 27 Grandison’s apartment early in the morning on December 4, 2020, to apprehend 28 Sterling.
29 The law enforcement officers announced themselves as “U.S. marshals” 30 upon approaching Grandison’s front door. Grandison opened the door and was 31 asked if anyone else was present in the apartment. Grandison responded that no
2 1 one else was present, but that statement was a lie. The deputy U.S. marshals 2 entered the apartment, at which point Sterling emerged from one of the bedrooms 3 and began shooting at the marshals. Two deputy U.S. marshals were seriously 4 injured, including one who was struck several times—with bullets ricocheting 5 from his waist to his thigh, his right hand, and his left elbow—and another who 6 was struck once in the right thigh. Sterling was killed in the confrontation.
7 Pursuant to his plea agreement, Grandison pleaded guilty on June 28, 2021, 8 to count one of the indictment, which charged him with making a false statement 9 to federal agents in violation of 18 U.S.C. § 1001. In the plea agreement, the parties 10 stipulated to an offense level of 12 under the U.S. Federal Sentencing Guidelines 11 and to a Guidelines range of 10 to 16 months’ imprisonment. On December 14, 12 2021, the district court sentenced Grandison to 24 months’ imprisonment.
13 On appeal, Grandison argues that the district court made two procedural 14 errors when sentencing him. First, he contends that the district court did not 15 sufficiently explain the reasons for the sentence exceeding the range suggested by 16 the Guidelines. Second, he contends that the district court improperly varied his 17 sentence upward based on factors that an enhancement provision within the 18 Guidelines, U.S.S.G. § 2B1.1(b)(16)(A), already had taken into account. We 19 disagree and affirm the judgment.
20 First, Grandison contends that resentencing is required because the district 21 court did not “adequately explain” the above-Guidelines sentence either orally or 22 in writing, as required under 18 U.S.C. § 3553(c)(2). Appellant’s Br. 10, 15-19. We 23 disagree.
24 Because Grandison did not raise this objection to his sentence 25 contemporaneously, we review the alleged procedural error for plain error. See 26 United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). Plain error occurs “only 27 where the appellant demonstrates that (1) there is an error; (2) the error is clear or 28 obvious, rather than subject to reasonable dispute; (3) the error affected the 29 appellant’s substantial rights, which in the ordinary case means it affected the 30 outcome of the district court proceedings; and (4) the error seriously affects the
3 1 fairness, integrity or public reputation of judicial proceedings.” United States v. 2 Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks and alteration omitted).
3 The district court began Grandison’s sentencing hearing by noting that his 4 offense level of 12 and criminal history category of I “would normally carry … an 5 advisory guideline sentence between 10 and 16 months.” App’x 33. It then 6 considered certain § 3553 factors, namely the seriousness of the offense, the 7 defendant’s history and characteristics, and his level of remorse for committing 8 the crime. App’x 33-34. The district court then said it would “take into account that 9 [Grandison] had had time to consider whether or not to tell that lie” and “the 10 serious injury to two law enforcement officers.” App’x 35. As a result of these 11 considerations, the district court imposed a sentence of 24 months’ imprisonment 12 “[i]n order to provide just punishment for [Grandison’s] crime, to promote respect 13 for the law, and to deter others from lying to law enforcement officers.” App’x 35.
14 In addition to explaining its decision orally, the district court also delineated 15 its reasoning in a written Statement of Reasons dated December 20, 2021. We 16 conclude that the district court provided sufficient explanation for the above- 17 Guidelines sentence.
18 Second, Grandison argues that the district court misinterpreted U.S.S.G. 19 § 2B1.1(b)(16)(A), which provides for an enhancement to the defendant’s sentence 20 if the crime includes “the conscious or reckless risk of death or serious bodily 21 injury.” U.S.S.G. § 2B1.1(b)(16)(A). Grandison suggests that the district court “did 22 not appreciate that Grandison’s range [had already] accounted for Sterling’s 23 injuring the marshals” before it decided to vary the sentence above the Guidelines 24 range.
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21-3130 United States v. Grandison
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 for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 13th day of February, two thousand twenty-three. 4 5 PRESENT: Steven J. Menashi, 6 Eunice C. Lee, 7 Sarah A. L. Merriam, 8 Circuit Judges. 9 ____________________________________________ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 v. No. 21-3130-cr 14 15 GRANT GRANDISON, 16 17 Defendant-Appellant. 18 ____________________________________________ 19
20 For Appellee: Alexandra N. Rothman, Danielle R. 21 Sassoon, Assistant United States Attorneys, 22 for Damian Williams, United States 1 Attorney for the Southern District of New 2 York, New York, NY. 3
4 For Defendant-Appellant: Matthew B. Larsen, Assistant Federal 5 Defender, Appeals Bureau, Federal 6 Defenders of New York, New York, NY. 7 8 Appeal from a judgment of conviction of the United States District Court for 9 the Southern District of New York (Wood, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 11 ADJUDGED, AND DECREED that the judgment of conviction entered by the 12 district court is AFFIRMED.
13 Defendant-Appellant Grant Grandison appeals from a judgment of 14 conviction for making a false statement to federal agents in violation of 18 U.S.C. 15 § 1001. On June 28, 2021, Grandison pleaded guilty pursuant to a plea agreement, 16 and on August 9, 2021, the district court entered an order accepting Grandison’s 17 plea. On December 14, 2021, the district court sentenced Grandison to 24 months’ 18 imprisonment. We assume the parties’ familiarity with the underlying facts, 19 procedural history, and issues on appeal.
20 Grandison’s conviction stems from his decision to harbor an old friend and 21 fugitive named Andre Sterling who was wanted for allegedly shooting a 22 Massachusetts state trooper during a traffic stop. Despite knowing that Sterling 23 was wanted by law enforcement, Grandison allowed Sterling to stay with him in 24 his Bronx apartment for ten to eleven days starting in late November 2020. Several 25 deputy U.S. marshals from the U.S. Marshals Service—as well as members of the 26 New York City Police Department and the Massachusetts State Police—visited 27 Grandison’s apartment early in the morning on December 4, 2020, to apprehend 28 Sterling.
29 The law enforcement officers announced themselves as “U.S. marshals” 30 upon approaching Grandison’s front door. Grandison opened the door and was 31 asked if anyone else was present in the apartment. Grandison responded that no
2 1 one else was present, but that statement was a lie. The deputy U.S. marshals 2 entered the apartment, at which point Sterling emerged from one of the bedrooms 3 and began shooting at the marshals. Two deputy U.S. marshals were seriously 4 injured, including one who was struck several times—with bullets ricocheting 5 from his waist to his thigh, his right hand, and his left elbow—and another who 6 was struck once in the right thigh. Sterling was killed in the confrontation.
7 Pursuant to his plea agreement, Grandison pleaded guilty on June 28, 2021, 8 to count one of the indictment, which charged him with making a false statement 9 to federal agents in violation of 18 U.S.C. § 1001. In the plea agreement, the parties 10 stipulated to an offense level of 12 under the U.S. Federal Sentencing Guidelines 11 and to a Guidelines range of 10 to 16 months’ imprisonment. On December 14, 12 2021, the district court sentenced Grandison to 24 months’ imprisonment.
13 On appeal, Grandison argues that the district court made two procedural 14 errors when sentencing him. First, he contends that the district court did not 15 sufficiently explain the reasons for the sentence exceeding the range suggested by 16 the Guidelines. Second, he contends that the district court improperly varied his 17 sentence upward based on factors that an enhancement provision within the 18 Guidelines, U.S.S.G. § 2B1.1(b)(16)(A), already had taken into account. We 19 disagree and affirm the judgment.
20 First, Grandison contends that resentencing is required because the district 21 court did not “adequately explain” the above-Guidelines sentence either orally or 22 in writing, as required under 18 U.S.C. § 3553(c)(2). Appellant’s Br. 10, 15-19. We 23 disagree.
24 Because Grandison did not raise this objection to his sentence 25 contemporaneously, we review the alleged procedural error for plain error. See 26 United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). Plain error occurs “only 27 where the appellant demonstrates that (1) there is an error; (2) the error is clear or 28 obvious, rather than subject to reasonable dispute; (3) the error affected the 29 appellant’s substantial rights, which in the ordinary case means it affected the 30 outcome of the district court proceedings; and (4) the error seriously affects the
3 1 fairness, integrity or public reputation of judicial proceedings.” United States v. 2 Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks and alteration omitted).
3 The district court began Grandison’s sentencing hearing by noting that his 4 offense level of 12 and criminal history category of I “would normally carry … an 5 advisory guideline sentence between 10 and 16 months.” App’x 33. It then 6 considered certain § 3553 factors, namely the seriousness of the offense, the 7 defendant’s history and characteristics, and his level of remorse for committing 8 the crime. App’x 33-34. The district court then said it would “take into account that 9 [Grandison] had had time to consider whether or not to tell that lie” and “the 10 serious injury to two law enforcement officers.” App’x 35. As a result of these 11 considerations, the district court imposed a sentence of 24 months’ imprisonment 12 “[i]n order to provide just punishment for [Grandison’s] crime, to promote respect 13 for the law, and to deter others from lying to law enforcement officers.” App’x 35.
14 In addition to explaining its decision orally, the district court also delineated 15 its reasoning in a written Statement of Reasons dated December 20, 2021. We 16 conclude that the district court provided sufficient explanation for the above- 17 Guidelines sentence.
18 Second, Grandison argues that the district court misinterpreted U.S.S.G. 19 § 2B1.1(b)(16)(A), which provides for an enhancement to the defendant’s sentence 20 if the crime includes “the conscious or reckless risk of death or serious bodily 21 injury.” U.S.S.G. § 2B1.1(b)(16)(A). Grandison suggests that the district court “did 22 not appreciate that Grandison’s range [had already] accounted for Sterling’s 23 injuring the marshals” before it decided to vary the sentence above the Guidelines 24 range. Appellant’s Br. 13. In other words, Grandison contends that the injury to 25 the marshals was double-counted in calculating his sentence—first by the 26 Guidelines enhancement and again in the district court’s reasons for varying 27 upward from the Guidelines.
28 Grandison made this argument before the district court, so we review this 29 issue de novo. See United States v. Genao, 869 F.3d 136, 141 n.2 (2d Cir. 2017) (“Where 30 an objection has been made, we review the district court’s application of the
4 1 Guidelines de novo, where, as here, the interpretation of the Guidelines is in 2 question.”).
3 There is no prohibition on a district court considering factors that the 4 Guidelines have already incorporated. A district court must “consider all the facts 5 relevant to sentencing, including those that have already been included in the 6 Guidelines calculation, in order to determine an appropriate sentence.” United 7 States v. Dunn, 529 F. App’x 30, 33 (2d Cir. 2013); see also United States v. Ryan, No. 8 21-1951, 2022 WL 16842930, at *3 (2d Cir. Nov. 10, 2022) (finding “unpersuasive” 9 a similar “‘impermissible double-counting’ argument”). A district court may 10 “impose[] a non-Guidelines sentence based upon section 3553(a) factors already 11 accounted for in the Guidelines range” as long as the district court explains “why 12 a Guidelines sentence did not sufficiently account for those factors in [the 13 defendant’s] case.” United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007), superseded 14 by statute on other grounds as recognized in United States v. Smith, 949 F.3d 60, 64 (2d 15 Cir. 2020); see also United States v. Lytch, 382 F. App’x 36, 39 (2d Cir. 2010) 16 (“[Sindima] stands for the uncontroversial proposition that when a sentencing 17 court wishes to rely on a factor that is already included in the calculation of the 18 advisory sentencing range in imposing an above-Guidelines sentence, it must 19 articulate specifically the reasons that this particular defendant’s situation is 20 different from the ordinary situation covered by the Guidelines calculation.”) 21 (internal quotation marks and alteration omitted).
22 Here, the district court permissibly concluded that the circumstances of 23 Grandison’s offense—including the degree of deliberateness in Grandison’s 24 actions and the harm that resulted—required an above-Guidelines sentence.
25 * * * 26 We have considered Grandison’s remaining arguments, which we conclude 27 are without merit. We AFFIRM the judgment of the district court. 28 29 FOR THE COURT: 30 Catherine O’Hagan Wolfe, Clerk of Court