United States v. Murphy

• Court: Court of Appeals for the Second Circuit
• Decided: April 25, 2023
• Docket: 21-1750
• Status: Unpublished

Opinion

21-1750 United States v. Murphy

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 City of 3 New York, on the 25th day of April, two thousand twenty-three. 4 5 PRESENT: 6 GUIDO CALABRESI, 7 MICHAEL H. PARK, 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 21-1750 17 18 Anthony Murphy, 19 Defendant-Appellant.* 20 _____________________________________ 21 22 23 FOR DEFENDANT-APPELLANT: Maurice J. Verrillo, Law Offices of 24 Maurice J. Verrillo, P.C., Rochester, 25 NY. 26 27 FOR APPELLEE: Tiffany H. Lee, Assistant United 28 States Attorney, for Trini E. Ross, 29 United States Attorney for the 30 Western District of New York, 31 Buffalo, NY. 32

* The Clerk of Court is respectfully directed to amend the caption accordingly. 1 Appeal from a judgment of the United States District Court for the Western District of New

2 York (Siragusa, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court is AFFIRMED.

5 In 2003, a jury found Anthony Murphy guilty of drug conspiracy, Hobbs Act conspiracy,

6 and firearms offenses. The district court sentenced Murphy to life imprisonment plus 55 years.

7 We affirmed Murphy’s convictions and sentence on direct appeal. See United States v. Bliss, 188

8 F. App’x 13 (2d Cir. 2006). Murphy proceeded to file several motions under 28 U.S.C. § 2255.

9 The last of these petitions argued that Murphy’s conviction for possession of a firearm in

10 connection with the conspiracy to commit Hobbs Act robbery must be vacated after United States

11 v. Davis, 139 S. Ct. 2319 (2019). The district court denied the motion as untimely, but the

12 government conceded that the former conviction should be vacated and requested a full

13 resentencing. The district court proceeded to resentence Murphy to life imprisonment plus 15

14 years. Murphy now appeals, arguing that the district court miscalculated the applicable United

15 States Sentencing Guidelines range and that his sentence was substantively unreasonable. We

16 assume the parties’ familiarity with the facts, the procedural history of the case, and the issues on

17 appeal.

18 First, the district court correctly determined the applicable Guidelines range because

19 Lamont Gordon’s murder was “relevant conduct” for Murphy’s drug-conspiracy conviction. The

20 district court found that Murphy and his co-conspirators murdered Gordon in the course of the

21 drug conspiracy by luring Gordon, a past customer, with the prospect of a drug transaction, then

2 1 strangling him and taking the money with which he planned to purchase the drugs. In calculating

2 the Guidelines base offense level for Murphy’s drug-conspiracy conviction, the district court

3 applied U.S.S.G. § 2D1.1(d)(1), which directs district courts to “apply § 2A1.1 (First Degree

4 Murder)” when “a victim was killed under circumstances that would constitute [first-degree]

5 murder under 18 U.S.C. § 1111.” U.S.S.G. § 2A1.1(a) sets the base offense level for first-degree

6 murder as 43.

7 Murphy objects to the calculation, arguing that § 2D1.1(d)(1) does not apply because

8 Gordon’s murder was not relevant conduct for the drug conspiracy conviction. Instead, he argues

9 that “[t]his alleged conduct was separate from the drug conspiracy count” because “there were no

10 drugs present at the” crime scene. Appellant’s Br. at 16. Relevant conduct includes “all acts

11 and omissions committed . . . by the defendant . . . that occurred during the commission of the

12 offense of conviction.” U.S.S.G. § 1B1.3(a)(1). “[F]or a district court’s application of the

13 Guidelines to the specific facts of a case, we follow an either/or approach, adopting a de novo

14 standard of review when the district court’s application determination was primarily legal in

15 nature, and adopting a ‘clear error’ approach when the determination was primarily factual.”

16 United States v. Helm, 58 F.4th 75, 88 (2d Cir. 2023) (internal quotation marks omitted and

17 alterations adopted). Under either standard, we affirm the district court’s holding that Gordon’s

18 murder was relevant to Murphy’s drug conspiracy. Murphy does not contest that Gordon was a

19 customer of the cocaine conspiracy, was lured to the crime scene by the cocaine conspiracy with

20 the prospect of a cocaine purchase, and was murdered by Murphy and his co-conspirators. Cf.

21 United States v. Plaza, 752 F. App’x 37, 41-42, 46 (2d Cir. 2018) (holding that a shooting was

3 1 relevant conduct to a drug conspiracy when the shooting was planned and executed by members

2 of the conspiracy and the intended victim had previous disputes with the conspiracy).

3 Second, Murphy argues that his sentence was substantively unreasonable because the

4 district court imposed life imprisonment without sufficiently considering Murphy’s rehabilitation

5 while incarcerated. We review substantive reasonableness with a “particularly deferential form

6 of abuse-of-discretion review.” United States v. Cavera, 550 F.3d 180, 188 n.5 (2d Cir. 2008)

7 (en banc). Thus, “[t]he particular weight to be afforded aggravating and mitigating factors is a

8 matter firmly committed to the discretion of the sentencing judge, with appellate courts seeking to

9 ensure only that a factor can bear the weight assigned it under the totality of the circumstances.”

10 United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal citation and quotation

11 marks omitted). Here, the district court did not abuse its discretion by imposing a life sentence

12 for “egregiously serious [conduct] involving serious physical injury and death to others” in

13 addition to “large scale drug dealing.” App’x at 211.

14 We have considered all of Murphy’s remaining arguments and find them to be without

15 merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court 18