18-3316-cr United States v. Pettway
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.
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 26th day of February, two thousand twenty-one.
PRESENT: DENNY CHIN, SUSAN L. CARNEY, STEVEN J. MENASHI, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA, Appellee,
-v- 18-3316-cr
DEMETRIUS BLACK, DEE BLACK, TYRONE BROWN, AKA Ty Boog, TARIQ BROWN, AKA Reek, AKA Reek Havick Boog, AKA Tyriq Brown, QUINTON THOMPSON, AKA Q, EDDIE ALLEN, AKA Pow Pow, AKA Bundles, MONTELL JONES, AKA Telly, RAYMEL WEEDEN, AKA Ray Deuce, DERRICK RAMOS, AKA Little D, Defendants, KENNETH PETTWAY, JR., AKA KPJ, Defendants-Appellants. ∗
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FOR APPELLEE: Monica J. Richards, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York.
FOR DEFENDANT-APPELLANT Robert C. Singer, Singer Legal PLLC, Kenneth Pettway, Jr. Williamsville, New York.
Appeal from the United States District Court for the Western District of
New York (Skretny, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the case is
REMANDED for further proceedings.
Defendant-appellant Kenneth Pettway, Jr., appeals from a judgment of the
district court entered November 9, 2018 convicting him, after a jury trial, of two counts
of narcotics violations (Counts 1 and 3), possession of firearms and ammunition by a
convicted felon (Count 5), and two counts of possession of firearms in furtherance of a
drug trafficking crime (Counts 2 and 4), in violation of 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(A)(iii), (b)(1)(C) and 18 U.S.C. §§ 922(g)(1), 924(a)(2), (c)(1)(A)(i), (c)(1)(C)(i), 2. He
was sentenced to 480 months' imprisonment and five years' supervised release. On
∗ The Clerk of the Court is respectfully requested to amend the official caption of this action to conform to the caption listed above. -2- appeal, Pettway argues that (i) his right to a speedy trial was violated; (ii) the district
court erred in denying his motion to suppress; (iii) the district court improperly
instructed the jury on the definition of "in furtherance" of; (iv) he is entitled to a
sentence reduction based on the First Step Act of 2018, see Pub. L. No. 115-391, 132 Stat.
5194 (2018) (the "First Step Act"); (v) the government failed to prove that he had
sufficient knowledge of his prior gun conviction, as required by the Supreme Court's
subsequent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019); (vi) the district court
erred in giving him a leader enhancement at sentencing; and (vii) he should have been
charged with only one § 924(c) offense. We assume the parties' familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We delayed our decision in this case because the Rehaif issue had been
raised in several cases in this Court preceding this one. 1 Those cases have now been
decided, and in accordance with those decisions, we conclude that the felon-in-
possession conviction must be vacated and the case remanded. We affirm as to the
remaining claims, except that we do not reach the First Step Act issue. As we are
remanding in light of Rehaif, we leave it to the district court to decide the applicability of
the First Step Act in the first instance.
1 In a summary order filed August 6, 2020, we severed and resolved the appeal of the co- defendant Rayshod Washington. See United States v. Washington, 814 F. App'x 664 (2d Cir. 2020) (summary order). -3- BACKGROUND
Pettway was the leader of the Bailey Boys, a violent street gang that sold
drugs and committed robberies in Buffalo, New York. Another gang member,
Demetrius Black, lived in an apartment at 23 Roosevelt Avenue ("23 Roosevelt"), which
served as Pettway and Black's stash house. The two sold drugs out of 23 Roosevelt. On
January 9, 2012, Erie County Deputy Sheriff-Detective Warren Hawthorn of Erie
County secured a search warrant for 23 Roosevelt. The warrant was based on
Hawthorn's affidavit and an in camera interview of a cooperating witness. The witness
admitted to having purchased cocaine from Pettway over the prior several months, and
he explained that Pettway sold cocaine out of 23 Roosevelt. The warrant was executed
on January 18, 2012, and local law enforcement recovered small amounts of cocaine and
heroin, a razor blade, roughly 50 small Ziploc bags, two digital scales, a loaded 9 mm
pistol, and a loaded .32 caliber pistol, as well as ammunition. Pettway and Black were
arrested.
Pettway was indicted on March 27, 2012, and prosecutors superseded his
indictment four times, with the fourth and final indictment being issued on April 23,
2013. For the years following the initial indictment, the parties engaged in extensive
motion practice. Pettway brought motions to compel discovery and other substantive
motions, including motions to suppress the evidence recovered at 23 Roosevelt.
Throughout this period, time was excluded for speedy trial purposes, and trial was
-4- scheduled for October 2016. Shortly before trial, however, the government discovered
that it made a mistake describing a gun in the fourth superseding indictment and, after
the district court did not allow it to offer the correct gun as Rule 404(b) evidence, it filed
an interlocutory appeal. We upheld the government's appeal in part and denied it in
part. United States v. Brown, 691 F. App'x 666 (2d Cir. 2017).
In January 2017, while the government's appeal was pending, Pettway
invoked his right to a speedy trial for the first time. On June 16, 2017, Pettway moved
to dismiss the indictment on speedy trial grounds. The district court denied his motion
and set trial for September 2017. In the summer of 2017, the government located a
missing witness ("CW#1"). As a consequence, the district court postponed the trial to
allow the defense to investigate and prepare. On October 5, 2017, after learning the
witness's identity, defense counsel revealed there was a conflict because he had
previously represented the witness. Accordingly, he was replaced by a new attorney.
On May 1, 2018, a few weeks before the rescheduled trial, Pettway once again moved to
dismiss his case on speedy trial grounds. His motion was denied, and he was tried and
convicted later that month. Pettway was sentenced on October 15, 2018. This appeal
followed.
-5- DISCUSSION
1. Rehaif
In Rehaif, the Supreme Court held that "the word 'knowingly' [as used in §
924(a)] applies both to the defendant's conduct and to the defendant's status." 139 S. Ct.
at 2194. Accordingly, to convict a defendant in accordance with Rehaif, the government
must show that "the defendant knew he possessed a firearm and also that he knew he
had the relevant status when he possessed it." Id. The district court did not charge the
jury that the government had to prove that Pettway knew of his "status."
Pettway did not object to the district court's charge, and thus we review
under the plain error standard: "whether (1) there is an error; (2) the error is clear or
obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's
substantial rights; and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings." United States v. Miller, 954 F.3d 551, 557-58 (2d Cir.
2020) (internal quotation marks and citation omitted).
Our decisions applying Rehaif in this context have focused on the third
and fourth prongs of plain error review, and considered whether the record contained
sufficient evidence to show that the defendant was aware of his "status." In United
States v. Walker, we affirmed the conviction because the evidence showed that Walker
had at least five prior felony convictions, including one for felon-in-possession of a
firearm, and four of the prior convictions resulted in sentences of more than a year. 974
-6- F.3d 193, 202-03 (2d Cir. 2020). Hence, we concluded that the evidence showed that
Walker was "well aware" of his status. Id. at 202. In contrast, in United States v. Morales,
we found plain error and remanded where Morales's stipulation "did not mention the
duration of her sentence or anything else indicative of her subjective knowledge at the
time she possessed a gun as to whether she had been convicted of a crime punishable
by a term of imprisonment exceeding on[e] year." 819 F. App'x 53, 54 (2d Cir. 2020)
(summary order); accord United States v. Johnson, 820 F. App'x 29 (2d Cir. 2020)
(summary order) (vacating and remanding in light of Rehaif). Further, Morales was
sentenced for the predicate offenses "to a conditional discharge, meaning she served no
carceral or probationary sentence." Morales, 819 F. App'x at 55. Hence, it was not at all
apparent from the record that Morales knew of her "status."
This case is more like Morales than Walker. Pettway stipulated that he had
been convicted of "a felony offense, that is, a crime punishable by imprisonment for a
term exceeding one year," App'x at 2569, but this language is similar to the language in
Morales's stipulation, which we found non-dispositive. Moreover, Pettway's predicate
offense resulted only in a six-month term of imprisonment, not a year. And unlike
Walker, Pettway does not have a history of serious convictions. Accordingly, we
conclude that the record did not contain sufficient evidence to show that Pettway was
on notice of his status as a person who was convicted of a felony punishable by a
sentence exceeding one year. This error affected Pettway's substantial rights, as well as
-7- the fairness and integrity of the judicial proceedings. Finding plain error, we therefore
vacate the judgment of conviction as to Count 5 and remand for the district court to
consider the issue in light of the recent caselaw.
2. First Step Act
Prior to December of 2018, a defendant was subject to a twenty-five-year
mandatory minimum for two § 924(c) convictions even when they arose from the same
indictment. Deal v. United States, 508 U.S. 129, 132 (1993) (interpreting earlier version of
§ 924(c)). On December 21, 2018, Congress passed the First Step Act, which, inter alia,
amended § 924(c)(1)(C) to eliminate the stacking of multiple convictions arising from
the same indictment. 2
In these proceedings, Pettway was convicted of two § 924(c) counts and
sentenced to five years for the first conviction (Count 2) and twenty-five years for the
second conviction (Count 4), to run consecutively to each other and to all other
sentences. He argues that, pursuant to the First Step Act, he is entitled to have the
twenty-five year sentence on Count 4 vacated.
2 The relevant language of the First Step Act provides:
Section 924(c)(1)(C) of Title 18, United States Code, is amended, in the matter preceding clause (i), by striking "second or subsequent conviction under this sub-section" and inserting "violation of this subsection that occurs after a prior conviction under this subsection becomes final."
132 Stat. 5221-22 (emphasis added). Id. at § 403 (emphasis added).
-8- As we are vacating Pettway's conviction on Count 5 and remanding for a
de novo resentencing in light of Rehaif, we leave it to the district court to decide, after
consulting with the parties on remand, the applicability of the First Step Act to this case.
In the meantime, we vacate the sentences on all counts.
3. Remaining Claims on Appeal
A. Speedy Trial
"We review the district court's findings of fact as they pertain to a speedy
trial challenge for clear error and its legal conclusions de novo." United States v. Lynch,
726 F.3d 346, 351 (2d Cir. 2013). To determine whether a defendant's right to a speedy
trial has been violated, "[w]e consider four factors: the '[l]ength of delay, the reason for
the delay, the defendant's assertion of his right, and prejudice to the defendant.'" United
States v. Black, 918 F.3d 243, 254 (2d Cir. 2019) (citing Barker v. Wingo, 407 U.S. 514, 530
(1972)). No one factor is dispositive. Id.
The delay in this case -- over six years -- was presumptively prejudicial to
Pettway. But this alone cannot carry a speedy trial violation. Instead, we are required
to examine the remaining Barker factors. Black, 918 F.3d at 254. Here, the delay is
attributable to both Pettway and the government. For his part, Pettway filed numerous
motions and requested several adjournments. For its part, the government's error on
the fourth superseding indictment delayed the trial significantly, and further delay
resulted when the government located a witness who had previously been represented
-9- by Pettway's attorney, resulting in the attorney's disqualification. Importantly, Pettway
did not assert his right to a speedy trial until more than four years after he was arrested,
having agreed in the interim to delays that were of his own making. Although he
asserted this right again shortly before trial, the fact that it took him so long to raise the
issue weighs heavily in the government's favor.
Finally, Pettway has not shown that he was significantly prejudiced by the
delay. See Barker, 407 U.S. at 532. Pettway was not incarcerated for a vast majority of
the time that he was awaiting trial. And while the specter of going to prison was
undoubtedly stressful, Pettway was primarily on home confinement while awaiting
trial. Although Pettway asserted that he and his family suffered stress and economic
harm, his actions, which included selling his music and making a rap video in which he
showed off his ankle bracelet, tell a different story. Lastly, Pettway did not show that
his defense was significantly hindered because of the delay. Accordingly, we conclude
that the district court did not err in finding that Pettway's right to a speedy trial was not
violated.
B. Motion to Suppress
On appeal from the denial of a motion to suppress, we review the district
court's "conclusions of law de novo and its factual findings for clear error, viewing the
evidence in a light most favorable to the government." United States v. Ramos, 685 F.3d
120, 128 (2d Cir. 2012). A judge who determines whether there is probable cause to
-10- issue a warrant "make[s] a practical, common-sense decision whether, given all of the
circumstances set forth in the affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213,
238 (1983). Because the Fourth Amendment exclusionary rule is intended to deter
"intentional conduct that [is] patently unconstitutional," evidence seized by officers who
carried out a warrant that issued without probable cause need not be excluded if those
officers relied on the warrant in good faith. Herring v. United States, 555 U.S. 135, 143‐44
(2009).
Here, the state judge who issued the warrant interviewed the cooperating
witness in camera. Two federal judges reviewed the state judge's notes and also found
probable cause for the issuance of the warrant. Hence, three judges independently
found there was "a fair probability that contraband or evidence of a crime [would] be
found" at 23 Roosevelt. See Gates, 462 U.S. at 238. But even assuming, arguendo, that the
warrant issued without probable cause because it could have been more specific,
Pettway has put forth no evidence or argument that the officers who executed the
warrant acted in bad faith. See Herring, 555 U.S at 143‐44. Accordingly, the district
court properly denied Pettway's motion to suppress.
C. Jury Instructions
"We review a claim of error in the district court's jury instructions de novo,
disturbing the district court's judgment only if the appellant shows that the error was
-11- prejudicial in light of the charge as a whole." Sheng v. M&TBank Corp., 848 F.3d 78, 86
(2d Cir. 2017). A jury charge is adequate if "taken as a whole, [it] is correct and
sufficiently covers the case so that a jury can intelligently determine the questions
presented to it." Garnett v. Undercover Officer C0039, 838 F.3d 265, 280 (2d Cir. 2016). "A
jury instruction is erroneous if it if it misleads the jury as to the correct legal standard or
does not adequately inform the jury on the law." Sheng, 848 F.3d at 86.
Defendants who use or carry a firearm "in furtherance of" a drug
trafficking crime face certain mandatory minimum sentences. 18 U.S.C. § 924(c). "[T]he
mere presence of a weapon at the scene of a drug crime, without more, is insufficient to
prove that the gun was possessed in furtherance of the drug crime." United States v.
Snow, 462 F.3d 55, 62 (2d Cir. 2006) (internal quotation marks and emphasis omitted).
Instead, there needs to be a "nexus" between the possession or use of the gun and the
furtherance of the crime. Id. "Ultimately, the test is whether a reasonable jury could, on
the evidence presented at trial, find beyond a reasonable doubt that possession of the
firearm facilitated a drug trafficking crime" by "afford[ing] some advantage . . . relevant
to the vicissitudes of drug trafficking." United States v. Lewter, 402 F.3d 319, 322 (2d Cir.
2005).
The district court's jury instruction accurately reflected the law, as it made
clear that, to convict, the jury had to find that "the firearm helped forward, advance or
promote the commission of the crime," and that the gun "played some part in furthering
-12- the crime in order for this element to be satisfied." App'x at 2351. During the jury's
deliberations, however, the jury asked for a definition of "in furtherance of." In
response, the district court gave the jury an additional instruction that provided a non-
exhaustive list of factors that the jury could consider in determining whether a gun was
used in furtherance of drug trafficking. This list tracked language from Snow. See 462
F.3d at 62-63.
Pettway argues that this instruction was improper, based on our
observation in Lewter that relying on a list of factors to understand whether a gun was
used in furtherance of a crime "is of limited utility" because "each case has its own
wrinkles." Lewter, 402 F.3d at 322. The statement in Lewter, however, was only dicta
and it does not preclude a district court from listing factors that may be helpful to a
jury. Additionally, the district court here made it clear that its list was not exhaustive.
Accordingly, the district court did not err in its jury instructions.
D. Leader Enhancement
We review a district court's application of an enhancement under the
Guidelines de novo and factual determinations underlying a district court's Guidelines
calculation for clear error. United States v. Rowland, 826 F.3d 100, 116 (2d Cir. 2016).
Under U.S.S.G. § 3B1.1, the leader/organizer enhancement applies if the defendant "was
an organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive." USSG § 3B1.1(a). Here, several witnesses testified that
-13- Pettway was the leader of the Bailey Boys, an organization with more than five
participants. Accordingly, the district court did not err when it applied the leader
enhancement.
E. § 924(c) Convictions
We review whether multiple § 924(c) counts should be treated as
furthering the same conspiracy -- which is a question of law that requires us to
determine whether a defendant committed separate crimes -- de novo. United States v.
Mejia, 545 F.3d 179, 204 (2d Cir. 2008). To convict a defendant of multiple § 924(c)
counts, the evidence that serves as the basis for each § 924(c) count must differ. United
States v. Arline, 835 F.3d 277, 279, 282-283 (2d Cir. 2016). "It is not determinative
whether the same conduct underlies the counts; rather, it is critical whether the offense
– in the legal sense, as defined by Congress – complained of in one count is the same as
that charged in another." United States v. Chacko, 169 F.3d 140, 146 (2d Cir. 1999)
(internal quotation marks omitted).
Pettway argues that the government separated the same § 924(c) offense
into two separate offenses to use the "harsh sentencing provision[] . . . to force a plea."
Appellant's Br. at 73. He contends that Counts 2 and 4 of the fourth superseding
indictment cover the same conduct -- a two-year narcotics conspiracy that spanned
from 2010 to 2012 -- and that therefore Count 4 should be vacated. Although the two
counts Pettway complains of are similar, they are sufficiently different to allow the
-14- government to have charged two separate crimes. Importantly, they involve two
distinct drug charges -- one for cocaine base and the other for heroin and cocaine. See
Mejia, 545 F.3d at 183-84, 205-06 (defendants properly charged with two § 924(c) counts
based on shootings of two victims in one location and a shooting of a third victim 40
minutes later at a separate location). Accordingly, we are not persuaded.
* * *
For the foregoing reasons, we VACATE the judgment of the district court
and REMAND for further proceedings. While we affirm the convictions as to all counts
except Count 5, we VACATE the sentences on all counts. As Count 5 remains
unresolved, the district court shall conduct a de novo resentencing after resolving the
open issues.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk
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