United States v. Michael Gordon

• Court: Court of Appeals for the Third Circuit
• Decided: August 26, 2021
• Docket: 20-1596
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 20-1596 ____________

UNITED STATES OF AMERICA

v.

MICHAEL GORDON, Appellant ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2-19-cr-00232-001) District Judge: Honorable Paul S. Diamond ____________

Submitted: June 23, 2021

Before: CHAGARES, PORTER, and ROTH, Circuit Judges.

(Filed: August 26, 2021) ____________

OPINION * ____________

PORTER, Circuit Judge.

Michael Gordon was sentenced to 240 months’ imprisonment for his role in a

scheme to import counterfeit Xanax® pills. He now appeals his sentence on two grounds.

* This disposition is not an opinion of the full court and, under I.O.P. 5.7, is not binding precedent. First, he contends that the District Court’s calculation of the advisory Federal Sentencing

Guidelines range was procedurally unreasonable. Second, he argues that the District

Court’s imposed sentence was substantively unreasonable. For the reasons explained

below, we will affirm.

I1

In June 2018, customs officials in the United Kingdom intercepted several parcels

of suspected counterfeit Xanax® pills bound for the United States. The officials alerted

the U.S. Department of Homeland Security, which launched an investigation. The

investigation uncovered a scheme by Michael Gordon and his coconspirator Eric Coney

to import large amounts of counterfeit Xanax® pills; distribute them to local buyers in

Philadelphia, Pennsylvania; and launder the proceeds through various financial accounts.

Gordon purchased the pills from an online supplier who shipped them in parcels to

various Philadelphia addresses associated with Gordon and Coney. The investigation

identified thirty-two such parcels, fifteen of which were intercepted by law enforcement.

The government charged Gordon with (1) conspiracy to traffic in counterfeit

goods in violation of 18 U.S.C. § 2320(a), and (2) conspiracy to money launder in

violation of 18 U.S.C. § 1956(h). Gordon pleaded guilty.

At sentencing, the District Court adopted several enhancements and calculated a

Guidelines range of 210 to 262 months’ imprisonment. Ultimately, the District Court

1 Because we write primarily for the benefit of the parties, we will recite only the facts necessary for the discussion.

2 sentenced Gordon to 240 months’ imprisonment. The sentence included three years of

supervised release following his imprisonment and an order to pay restitution of

$2,768,500 and a special assessment of $200. Gordon timely appealed.

II2

A

Gordon first claims that the District Court procedurally erred when it attributed to

him 410,000 counterfeit Xanax® pills for purposes of calculating his Guidelines range

because that drug quantity was “speculative and not based on actual physical evidence.”

Appellant’s Br. 14. We disagree.

District court error in calculating a Guidelines range can render a sentence

procedurally unreasonable. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en

banc) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). We review the District

Court’s findings of fact for clear error, and its application of the sentencing Guidelines to

the facts for abuse of discretion. United States v. Kluger, 722 F.3d 549, 555 (3d Cir.

2013). A factual finding is clearly erroneous when, upon review of the record, we are

“left with the definite and firm conviction that a mistake has been committed.” Concrete

Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr., 508 U.S. 602, 622 (1993)

(internal quotation marks omitted) (quoting United States v. U.S. Gypsum Co., 333 U.S.

364, 395 (1948)).

2 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

3 When sentencing a defendant for a drug-related conviction that involves some

quantity of unseized drugs, a district court must “approximate the quantity of the

controlled substance.” U.S. Sent’g Guidelines Manual § 2D1.1 cmt. n.5 (U.S. Sent’g

Comm’n 2018); see also United States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999) (noting

that a “degree of estimation” is sometimes necessary when calculating the quantity of

drugs in a drug trade operation). To approximate drug quantity, a district court may

consider factors such as “the price generally obtained for the controlled substance,

financial or other records, similar transactions in controlled substances by the defendant,

and the size or capability of any laboratory involved.” U.S.S.G.M. § 2D1.1 cmt. n.5.

Altogether, the evidence “need not be admissible at trial,” but it “must possess ‘sufficient

indicia of reliability to support its probable accuracy.’” Gibbs, 190 F.3d at 203 (quoting

United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993)). That indicia of reliability may

be met through “corroboration by or consistency with other evidence.” United States v.

Freeman, 763 F.3d 322, 337 (3d Cir. 2014) (quoting United States v. Smith, 674 F.3d

722, 732 (7th Cir. 2012)).

The record contains evidence with sufficient indicia of reliability to support the

District Court’s attribution of 410,000 counterfeit Xanax® pills to Gordon. First, 190,000

of the 410,000 pill quantity—nearly half—is based on direct evidence of pill amounts

from the fifteen parcels intercepted by law enforcement. The remainder of that pill

quantity, 220,000, is an approximation of the pill amounts in the delivered parcels that

went unseized.

4 The approximation is supported, in part, by comparing the weights of the seized

parcels with the weights of the unseized parcels. Among the fifteen seized parcels, each

of the 5,000-pill parcels weighed three to four pounds; the 10,000-pill parcel weighed

about six pounds; each of the 20,000-pill parcels weighed thirteen to fourteen pounds;

and the 25,000-pill parcel weighed about sixteen pounds. Thus, given the consistency of

the seized parcels’ weight-to-pill ratio, the unseized parcels’ known weights may be

reliably used to extrapolate their unknown pill amounts. See United States v. Douglas,

885 F.3d 145, 151 (3d Cir. 2018) (noting that circumstantial evidence, not just direct

evidence, may properly support a district court’s determination as to drug quantity).

Additionally, the approximated pill quantities for the unseized parcels are

corroborated by Gordon’s virtual payments for the counterfeit Xanax® pill shipments, the

supplier’s online price listings, Gordon’s text communications with his distributors and

customers, and agents’ surveillance of Gordon and Coney retrieving some of the

delivered packages.

In sum, upon review of the evidence supporting the District Court’s determination

of the drug quantity, we are not “left with the definite and firm conviction that a mistake

has been committed.” Concrete Pipe, 508 U.S. at 622 (internal quotation marks

omitted) (quoting Gypsum, 333 U.S. at 395). Thus, the District Court did not clearly err

when it attributed 410,000 counterfeit pills to Gordon for purposes of calculating his

Guidelines range.

5 B

Next, Gordon challenges the substantive reasonableness of his sentence imposed

by the District Court as “unduly punitive based on the totality of circumstances.”

Appellant’s Br. 29. Gordon musters several arguments in support of his challenge, but

they are unavailing.

We review the substantive reasonableness of a sentence for abuse of

discretion. See United States v. Woronowicz, 744 F.3d 848, 851 (3d Cir. 2014). We will

not hold that a sentencing court abused its discretion unless “no reasonable sentencing

court would have imposed the same sentence on that particular defendant for the reasons

the [sentencing] court provided.” Tomko, 562 F.3d at 568. “As long as a sentence falls

within the broad range of possible sentences that can be considered reasonable in light of

the [18 U.S.C.] § 3553(a) factors, we must affirm.” United States v. Wise, 515 F.3d 207,

218 (3d Cir. 2008). Sentences that fall within the applicable Guidelines range are entitled

to a presumption of reasonableness. United States v. Handerhan, 739 F.3d 114, 124 (3d

Cir. 2014).

First, Gordon claims that the District Court’s failure to grant sufficient weight to

certain mitigating factors in its § 3553(a) analysis suggests that his sentence was

substantively unreasonable. At sentencing, the District Court considered the U.S.

Probation Office’s findings, the parties’ arguments in sentencing filings, the witnesses’

testimony, and Gordon’s allocution. During its § 3553 factors analysis, the District Court

acknowledged the mitigating factors raised by Gordon, including the support of his

family and friends, his age of 31 years when the crimes were committed, and his lack of

6 prior criminal history. Ultimately, the District Court denied Gordon’s requests for

downward variances and imposed a sentence within the Guidelines range. That Gordon

disagrees with the District Court about the proper weight to afford various mitigating

factors does not suggest a sentence is substantively unreasonable. United States v.

Bungar, 478 F.3d 540, 546 (3d Cir. 2007).

Next, Gordon contends that the District Court’s alleged procedural error in

approximating the pill quantity also contributed to a lack of substantive reasonableness.

See United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010). For the reasons already

explained, this claim fails.

Gordon also argues that the District Court erred when it applied three trademark-

related enhancements under § 2B5.3 because they were “duplicative” and targeted the

same conduct. Appellant’s Br. 26–27. Gordon did not object on these grounds at

sentencing, so we review for plain error. United States v. Flores-Mejia, 759 F.3d 253,

256 (3d Cir. 2014) (en banc).

Contrary to Gordon’s assertion, the enhancements under § 2B5.3(b)(1),

§ 2B5.3(b)(3), and § 2B5.3(b)(5) each reflect separate offense characteristics that are

analytically distinct. Gordon’s conduct independently implicated each of these

enhancements, so the District Court did not procedurally err in adopting them.

Accordingly, the resulting increase to Gordon’s Guidelines range does not undermine the

substantive reasonableness of his sentence. We thus ascertain no plain error in the District

Court’s application of the three § 2B5.3 enhancements.

7 Finally, Gordon urges that several “anomalies” in the sentencing process,

essentially arising from difficulties with legal representation, call into question the

substantive reasonableness of the sentence imposed. Appellant’s Br. 27. In particular,

Gordon claims that his difficulties with legal representation inhibited him from

contributing to the Presentence Investigation Report and preparing adequately for his

sentencing.

At sentencing, the District Court considered these concerns as represented in the

parties’ filings and Gordon’s allocution, but found them meritless. Rather, it found that

much of what Gordon said in his allocution was incredible. Moreover, the record shows

that Gordon was advised to secure counsel at three separate status conferences on

October 2nd, November 12th, and November 21st, 2019. Indeed, at the final status

conference before sentencing, the District Court found that Gordon’s continual failure to

secure legal representation was “delay for the sake of delay.” App. 124. Under these

circumstances, such “anomalies” do not undermine the fairness of the proceedings or

color Gordon’s sentence as substantively unreasonable.

In sum, given the District Court’s careful consideration of the circumstances of

Gordon’s case, we find that Gordon’s sentence “falls within the broad range of possible

sentences that can be considered reasonable in light of the § 3553(a) factors.” Wise, 515

F.3d at 218. Within-guideline sentences are presumptively reasonable, Handerhan, 739

F.3d at 124, and nothing on this record overcomes that presumption. Therefore, the

District Court did not abuse its discretion when it imposed Gordon’s sentence.

* * *

8 Because we conclude that the District Court did not commit clear error when

calculating Gordon’s Guidelines range or abuse its discretion when imposing a within-

guidelines sentence, we will affirm the District Court’s judgment.