Opinion
1:18-CR-00126 EAW
2021-04-30
UNITED STATES of America, v. Titus THOMPSON, Defendant.
Charles J. Volkert, Joseph M. Tripi, Joshua A. Violanti, Emmanuel O. Ulubiyo, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America. Jason L. Schmidt, Fredonia, NY, for Defendant.
Charles J. Volkert, Joseph M. Tripi, Joshua A. Violanti, Emmanuel O. Ulubiyo, Government Attorney, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Jason L. Schmidt, Fredonia, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Defendant Titus Thompson ("Thompson") was convicted after a three-week jury trial of the following counts in the Second Superseding Indictment: conspiracy to commit firearms offenses in violation of 18 U.S.C. § 371 (Count One); unlawfully dealing in firearms in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a), and 924(a)(1)(D) (Count Two); felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Three); and using and maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) (Count Four). (Dkt. 334; Dkt. 336; see Dkt. 246). The jury acquitted Thompson of Count Five charging possession of firearms in furtherance of drug trafficking activities in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Dkt. 334; see Dkt. 246). Sentencing is scheduled for June 23, 2021. (Dkt. 535). Familiarity with the underlying facts and procedural background of this case is presumed for purposes of this Decision and Order, which is intended primarily for review by the parties.
Pending before the Court are the government's (Dkt. 473) and Thompson's (Dkt. 507) objections to the Presentence Investigation Report. For purposes of this Decision and Order, the Court will discuss the objections in the context of the Presentence Investigation Report as revised February 8, 2021, filed at docket 511 (hereinafter "the PSR"). Oral argument concerning the objections was held on April 20, 2021 (Dkt. 533) (hereinafter "Oral Argument"), at which time the Court indicated how it would resolve a few of the objections but otherwise reserved decision. The Court addresses and resolves each of the objections as set forth below.
I. LEGAL STANDARD FOR RESOLVING OBJECTIONS AND REQUEST FOR EVIDENTIARY HEARING
Pursuant to Federal Rule of Criminal Procedure 32, the Court must, prior to sentencing, "for any disputed portion of the presentence report or other controverted matter ... rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). The Court is not required to "perform a line-by-line review of the PSR," so long as it "resolve[s] the substantive challenges" thereto. United States v. Reiss , 186 F.3d 149, 156-57 (2d Cir. 1999).
"At sentencing, disputed factual allegations must be proven by the government by a preponderance of the evidence...." United States v. Rizzo , 349 F.3d 94, 98 (2d Cir. 2003). However, sentencing proceedings are not "second trials," United States v. Fatico , 603 F.2d 1053, 1057 (2d Cir. 1979), and the sentencing court may use hearsay statements in determining the sentence, United States v. Lee , 818 F.2d 1052, 1055 (2d Cir. 1987) ; see United States v. Carmona , 873 F.2d 569, 574 (2d Cir. 1989) ("The sentencing court's discretion is ‘largely unlimited either as to the kind of information [s]he may consider, or the source from which it may come.’ Any information or circumstance shedding light on the defendant's background, history and behavior may properly be factored into the sentencing determination." (citation omitted) (quoting United States v. Tucker , 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) )).
In his written objections, Thompson contended that an evidentiary hearing was necessary because "without sworn testimony, the court would be unable to decide several contested material issues of fact, which are in dispute in this case." (Dkt. 507 at 13). However, at oral argument Thompson's counsel withdrew the request for an evidentiary hearing. The Court agrees that an evidentiary hearing is unnecessary. The Court has before it the record of the proceedings during the trial, the pretrial proceedings, the submissions of each party, and the oral argument of counsel. The record is more than adequate to resolve the various objections to the PSR.
It is well-settled within the Second Circuit that "[t]he procedure followed in resolving disputed factors at sentencing rests in the sound discretion of the trial court." United States v. Ibanez , 924 F.2d 427, 430 (2d Cir. 1991) ; see United States v. Slevin , 106 F.3d 1086, 1091 (2d Cir. 1996) ("Decisions as to what types of procedure are needed lie within the discretion of the sentencing court and are reviewed for abuse of discretion."). "When deciding between an evidentiary hearing and another means of obtaining ‘adequate’ information, a ‘sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.’ " United States v. Brinkworth , 68 F.3d 633, 640 (2d Cir. 1995) (citation omitted). "A defendant ha[s] no absolute right to present witnesses or to receive a full-blown evidentiary hearing." United States v. Prescott , 920 F.2d 139, 143 (2d Cir. 1990) ; see United States v. Massino , 546 F.3d 123, 137 (2d Cir. 2008) ("Neither the Due Process Clause nor the Guidelines require the district court to resolve sentencing disputes through a " ‘full-blown evidentiary hearing.’ " " (citations omitted)). Rather, "[a]ll that is required is that the court ‘afford the defendant some opportunity to rebut the Government's allegations.’ " Slevin , 106 F.3d at 1091 (citation omitted). In other words, the law does not mandate a hearing whenever there is a "knock on the hearing room door...." Massino , 546 F.3d at 137 (quoting Ibanez , 924 F.2d at 430 ).
II. SPECIFIC OBJECTIONS
A. Thompson's Objections to Factual Statements in PSR that Do Not Impact Sentencing Guidelines Calculations
Thompson asserts various objections to certain factual statements in the PSR that would not necessarily impact the Sentencing Guidelines calculations. The Court is not required to issue a ruling as to factual objections on matters that either "will not affect sentencing" or that "the court will not consider ... in sentencing." Fed. R. Crim. P. 32(i)(3)(B). As noted below, the Court has resolved only those factual objections that are material to sentencing.
1. Objection to Paragraph 9 of PSR
Thompson objects to the statement at paragraph 9 of the PSR that Thompson "conspired with his co-conspirators" during the time frame November 2017 through May 2018. (Dkt. 507 at 2-3). Thompson contends that there is no evidence that he conspired with "all the named ‘co-conspirators’, especially during the time frame indicated." (Id. at 3). Thompson was found guilty by a jury of the charges in Count One of the Second Superseding Indictment, which alleged that Thompson and the other co-defendants engaged in a firearms trafficking conspiracy as alleged therein between in or about November 2017 and in or about May 2018. (See Dkt. 246 at 1). However, as the government conceded at Oral Argument, the evidence at trial established that Thompson's involvement in the conspiracy began in April 2018 and continued through May 2018.
Robert L. Williams, Jr. ("Williams") testified at trial that he started going to Ohio in November 2017 (Dkt. 347 at 17), and he began acquiring guns from co-defendant Ricky Turner in November 2017 (id. at 61). Williams further testified that Thompson's involvement in the conspiracy commenced in or around April 2018. (See id. at 45-49 (Williams testifying that he first met Thompson at 89 Parkridge Avenue in Buffalo, New York, and discussed purchasing guns for him in Ohio in "like middle April, end of.")). This testimony was confirmed by co-defendant Victoria Orlando ("Orlando"). (See Dkt. 317 at 95-96 (Orlando testifying as to the first time that she saw Thompson on April 14, 2018, at Williams’ residence in Buffalo)).
Thus, the Court sustains Thompson's objection to the time frame referenced, and directs that paragraph 9 be revised to reflect the beginning time period as April 2018 instead of November 2017. However, while Thompson did not have direct interaction with most of the co-conspirators listed in paragraph 9, the evidence at trial (and the jury's verdict) plainly established that he was engaged in a conspiracy with others to transport firearms into New York from Ohio. While Thompson may not have interacted directly with the straw purchasers, the evidence established that he directed Williams to purchase various firearms that Williams then acquired through the straw purchasers in Ohio. Accordingly, the Court otherwise overrules Thompson's remaining objection to this paragraph.
2. Objection to Paragraph 10 of PSR
Thompson objects to this entire paragraph, although he does not offer any specifics as to the basis for his objection. (Dkt. 507 at 3). The Court believes that the paragraph accurately reflects the evidence presented at trial, and thus the objection is overruled.
3. Objection to Paragraph 11 of the PSR
Thompson objects to the upper apartment at 89 Parkridge Avenue being characterized as "his residence" on the ground that he is the "owner/landlord" of the property but "not a resident." (Dkt. 507 at 3). Thompson further contends that on May 28, 2018, he had the "property fully rented ... to two separate tenants." (Id. ). Further, at Oral Argument, Thompson's counsel contended that the property was owned by a corporation as opposed to Thompson individually, and further argued that the PSR failed to make a distinction between Thompson's access to the lower apartment as opposed to the upper apartment.
In his affidavit of standing submitted in support of his motion to suppress, Thompson stated that he was the "record owner" of 89 Parkridge Avenue. (Dkt. 99-2 at ¶ 2). Whether through a corporate entity or individually, the evidence established that Thompson owned the property at issue, and more importantly, that he exercised dominion and control over and had access to both apartments located on the premises. The Court further notes that while Thompson's counsel referenced at Oral Argument this Court's conclusion that Thompson lacked standing to challenge the search of the lower apartment (see Dkt. 191 at 9-13), the issue of whether Thompson met his burden to establish a sufficient privacy interest so as to challenge a search is entirely different than whether the government met its burden to establish Thompson's responsibility for the firearms that were located in the place that was searched.
As the Court previously determined in its Decision and Order denying Thompson's post-verdict motions, the testimony of Thompson's aunt and uncle, Cynthia and Garfield Nowlin, established that they lived in the lower apartment at 89 Parkridge Avenue; they paid rent to Thompson for this apartment; Thompson had access to both the lower and upper apartments; and the upper apartment had not been occupied by a tenant for several months before execution of the search warrant on May 18, 2018. (Dkt. 486 at 5). Moreover, while Thompson's brother Romont testified that he had been living in the upper apartment, his testimony was not credible. In addition, Williams testified that he met with Thompson in the upper apartment at 89 Parkridge on two separate occasions to provide him with guns that Williams had acquired through straw purchasers in Ohio and pick up the money that he was owed. (Dkt. 347 at 51-54). Further, while not admitted at trial, the suppression hearing testimony supported the concept that Thompson had access to the lower apartment and kept weapons at that location. (See Dkt. 191 at 6, 8).
Because Thompson's counsel referenced the grand jury testimony of Mr. and Mrs. Nowlin during Oral Argument, the Court has reviewed the transcripts of their testimony before the grand jury. The grand jury testimony does not change the Court's assessment that the record supports a finding—by more than a preponderance of the evidence—that Mr. and Mrs. Nowlin were unaware of the firearms located in the lower apartment, that Thompson gained access to the lower apartment, and that Thompson was responsible for the firearms located in the lower apartment. To be clear, the Court is not suggesting that Mr. and Mrs. Nowlin were able to detail how Thompson accessed their apartment without their knowledge—whether by using a key or some other means. But the evidence supports the conclusion that Thompson accessed the apartment without their knowledge to store the firearms located there upon execution of the search warrant.
At Oral Argument, even Thompson's counsel seemed to support the incredibility of the concept of anyone living in the upper apartment given the lack of stove, refrigerator, and other items that would objectively demonstrate that the apartment was being inhabited on a regular basis.
The Court overrules Thompson's objections to this paragraph to the extent it is directed to his dominion and control over 89 Parkridge Avenue, and otherwise the Court does not resolve the objection because it is irrelevant for purposes of sentencing. The Court acknowledges that Thompson may not have been "residing" in the upper apartment at the time of the execution of the search warrant, and he similarly was not "residing" in the lower apartment. But importantly, he had access to and use of the upper apartment, as supported by the jury's verdict finding Thompson guilty of maintaining that apartment for drug activities in violation of 21 U.S.C. § 856(a)(1), and he also had access to the lower apartment and the record supports a finding that he is responsible for the firearms located in the lower apartment. Those are the critical findings for purposes of sentencing—not whether he was a "resident" of either apartment at 89 Parkridge Avenue.
4. Objection to Paragraph 12 of the PSR
Thompson objects to this paragraph on several grounds. (Dkt. 507 at 4-5). To the extent Thompson objects to this paragraph's reference to the number of guns sold to Thompson by Williams, the Court addresses that issue below in the discussion of U.S.S.G. § 2K2.1(b)(1). Thompson also objects to this paragraph's reference to 89 Parkridge Avenue being characterized as his residence (id. at 5), which objection is overruled or otherwise not resolved for the reasons explained above.
Thompson also objects to this paragraph's reference to "synthetic cannabis" being purchased or sold by Thompson. (Id. at 4-5). Specifically, the paragraph states, in discussing Williams’ trial testimony, that he "recalled purchasing synthetic cannabis from Thompson at" 89 Parkridge Avenue. (Dkt. 511 at 7). Thompson argues Williams solicited K2 from Thompson (which Williams was consuming at high levels in 2018), but Williams was given a white substance by Thompson that was not K2. (Dkt. 507 at 5).
Williams testified at trial that he told Thompson that he smoked K2, and Thompson replied that "he had some that was better than what I had, and I asked him for some." (Dkt. 347 at 65). Williams testified that he asked Thompson for K2 when he was in the upper apartment at 89 Parkridge Avenue, and Thompson then "came out the back with a little baggie in his hand with some white stuff in it and he had the K2 in his hand, he had some K2." (Id. at 64-65). Williams further described the substance as "a white rock, looked like cocaine, but I'm not sure exactly what it was." (Id. at 65).
The Court does not resolve this objection because it is immaterial to sentencing whether Thompson provided Williams with K2 or some other illegal substance on the date in question. In other words, the evidence supports a conclusion that Thompson provided Williams with some type of illegal drug on the date in question—whether it was K2 or some other illegal substance is not material to sentencing.
5. Objections to Paragraphs 64 and 65 of PSR
Thompson objects to both of these paragraphs on the grounds that they are not supported by the record. (Dkt. 507 at 5-6). The Court disagrees. These paragraphs accurately reflect the evidence in the record and thus the objections are overruled.
6. Objection to Paragraph 66 of the PSR
Thompson objects to this paragraph on the ground that it does not accurately reflect the evidence and testimony at trial, and he specifically objects to the allegations regarding K2 and the number of firearms purchased and sold. (Dkt. 507 at 6-7). The objection related to the number of firearms is addressed below in the discussion of U.S.S.G. § 2K2.1(b)(1). The objection related to K2 is not resolved for the reasons discussed above, as it is not material to sentencing whether Thompson provided Williams with K2 or some other illegal drug. Finally, the objection is otherwise overruled as the Court believes the facts set forth in this paragraph accurately reflect the evidence and testimony presented at trial.
7. Objections to Paragraphs 67 and 68 of the PSR
Thompson objects to these paragraphs which reflect information initially conveyed by Williams to law enforcement. With respect to paragraph 67, Thompson contends that it constitutes "unfair prejudice in stating that Williams also stated that when people have ‘money beefs’ with each other on the street, Thompson ‘takes tickets’ on them (contracts to kill)’." (Dkt. 507 at 8).
The Court does not intend to rely on the information in these paragraphs at sentencing. Williams did not testify to this information at trial and some aspects of the information initially conveyed by Williams to law enforcement were inconsistent with his trial testimony. Accordingly, the Court need not and does not resolve the objections to these paragraphs.
8. Objection to Paragraph 72 of the PSR
Thompson objects to this entire paragraph, reflecting the interactions between Orlando and law enforcement on August 8, 2018. (Dkt. 507 at 8). Thompson does not offer any specifics as to the basis for his objection. The Court believes that the paragraph accurately reflects the facts set forth therein, and thus the objection is overruled.
9. Objection to Paragraph 87 of the PSR
Thompson objects to this entire paragraph, reflecting the testimony of his aunt and uncle, Cynthia and Garfield Nowlin. (Dkt. 507 at 8-9). Thompson does not offer any specifics as to the basis for his objection. The Court believes that the paragraph accurately reflects the testimony at trial, and thus the objection is overruled.
10. Objection to Paragraph 88 of the PSR
Thompson objects to this entire paragraph, reflecting the testimony of his brother Romont. (Dkt. 507 at 9). Thompson does not offer any specifics as to the basis for his objection. The Court believes that the paragraph accurately reflects the testimony at trial, and thus the objection is overruled.
11. Objection to Paragraph 90 of the PSR
Thompson objects to this entire paragraph, reflecting a summary of the evidence against Thompson. (Dkt. 507 at 10). Thompson does not offer any specifics as to the basis for his objection. Much of the information contained in this paragraph is already discussed in other portions of this Decision and Order, and for the reasons set forth therein, the Court overrules some of the objections or otherwise does not resolve the objections because the information will not be relied on at sentencing. The Court does sustain the objection to the date of Thompson's involvement in the conspiracy, and directs that the paragraph be revised to replace November 2017 with April 2018.
B. Objections to the Sentencing Guidelines Calculations
Both the government and Thompson have asserted various objections to the Guidelines calculations set forth in the PSR, all of which are discussed below. For the reasons set forth below, the objections to the offense level are overruled and the Court agrees with the PSR's calculation of an offense level of 37. However, as the Court indicated during oral argument, Thompson's objection to the criminal history category is sustained, and the Court concludes that it is a category III, not IV as calculated by the PSR.
1. Number of Firearms Involved in the Offense ( U.S.S.G. § 2K2.1(b) )
Paragraph 98 of the PSR suggests that the offense level should be increased by six pursuant to U.S.S.G. § 2K2.1(b)(1)(C) because the offense involved more than 25 but less than 99 firearms. For the reasons discussed below, the Court agrees with the PSR that the government has established by a preponderance of the evidence that the scope of the activity to which Thompson agreed—having Williams acquire firearms for him through straw purchasers in Ohio that were then transported back to Buffalo for resale—involved more than 25 but less than 99 firearms. Thus, Thompson's objection to U.S.S.G. § 2K2.1(b)(1)(C) is overruled.
As noted above, Williams testified that he first met Thompson in April 2018, although he was not specific as to the exact date. (See Dkt. 347 at 45-49 (Williams testifying that he first met Thompson at 89 Parkridge Avenue in Buffalo, New York, and discussed purchasing guns for him in Ohio in "like middle April, end of.")). Williams testified that after that initial meeting with Thompson, they met again a day or two later at Williams’ house located at 116 Reed Street in Buffalo, New York; that Williams had guns that he had acquired in Ohio described as "40 caliber, Glocks, Smith & Wessons"; and that after negotiating a price Thompson took the guns and left. (Id. at 49-50). Williams testified that "[a]fter that" initial purchase he sold more guns to Thompson and when asked about the number of additional guns, he testified as follows:
Q. Do you know how many guns?
A. Not approximately the right number, but 20 or so. I'm not sure of the exact number.
(Id. at 50). Williams further testified that in April and May 2018, he was selling all of the guns he was acquiring to Thompson and he estimated the number to be twenty to thirty. (Id. at 69-70). On cross-examination, Williams testified that he did not remember the exact number of guns sold to Thompson but he believed it was around "20 or more." (Id. at 98; see also id. at 112 (testifying that he sold Thompson "not 20 exactly, but in that range. I'm not sure of the exact number.")).
As noted elsewhere in the PSR, Williams initially told law enforcement that he sold approximately eight to nine guns to Thompson (Dkt. 511 at ¶ 67), and he testified before the grand jury that he sold approximately 40 guns to Thompson (id. at ¶ 66). In part because of these inconsistencies, the Court does not find reliable Williams’ estimates as to the number of firearms that he sold to Thompson. The Court does find credible Williams’ testimony, which was corroborated by other evidence, that he began his relationship with Thompson sometime in April 2018, and at that point Thompson became the only person for whom he was acquiring firearms through straw purchasers in Ohio.
On the other hand, the Court found Orlando's more precise testimony about the date that she first saw Thompson acquiring firearms from Williams, which was corroborated by documentary evidence in the form of the ATF forms completed by Orlando for the purchase of firearms, credible and reliable. Orlando testified that the second time she purchased guns for Williams was April 14, 2018 (Dkt. 317 at 75), when she purchased two guns for him (id. at 83). Orlando drove those guns to Buffalo in her vehicle, with Williams following in a vehicle behind her. (Id. at 90). When they arrived at Williams’ Reed Street residence, she was instructed by Williams to take the guns into the residence, remove them from their boxes, and display them on the kitchen table. (Id. at 91). More than two and possibly more than five additional guns were also displayed on the kitchen table, which had come from the bedroom at the Reed Street residence. (Id. at 94). Then, Thompson arrived at the Reed Street residence with about four other men and they were "looking at the guns and basically shopping." (Id. at 95-96). All of the firearms were purchased "in some form or another because they were on the table and they were walking out with them." (Id. at 98). After returning to Ohio, on April 15, 2018, Orlando bought a total of 10 firearms for Williams. (Id. at 114). On that same date, she drove to Buffalo with Williams, and displayed 10 firearms on the kitchen table at Reed Street, and Thompson arrived at that location. (Id. at 121). Then two or three other individuals arrived and purchased the guns. (Id. at 122-26). Thus, on April 14 and 15, 2018, between 12 and 17 firearms were involved in Thompson's offense conduct.
As noted above, the Court credits Williams’ testimony that once he began acquiring firearms for Thompson—which based on Orlando's testimony and the documentary testimony occurred on April 14, 2018—Thompson was the sole person for whom Williams was acquiring firearms through straw purchasers in Ohio. The evidence at trial, which was supported by documentary evidence, established that at least 66 firearms were acquired during that time frame in addition to the 12 to 17 firearms discussed above, as follows: Diones Bowens purchased three firearms for Williams on April 17, 2018, and 12 firearms for Williams on April 21, 2018 (Dkt. 511 at ¶¶ 24-25); Shane Shumaker purchased 10 firearms for Williams on April 27, 2018, and four or five firearms for Williams on April 30, 2018 (id. at ¶¶ 27, 30); Vicky Hoffstetter made straw purchases for Williams on April 22 and May 5, 2018, totaling at least 10 firearms (id. at ¶ 38); Jenna Redding purchased 10 firearms for Williams on May 8 and 11, 2018 (id. at ¶ 41) ; Koree Runyan purchased 10 firearms for Williams on May 9 and 10, 2018 (id. at ¶ 79); and Orlando purchased an additional six firearms for Williams on April 22, 2018 (id. at ¶ 47).
As noted during Oral Argument, the PSR indicates in one paragraph that four firearms were purchased by Shane Shumaker on April 30, 2018 (Dkt. 511 at ¶ 27), but then in another paragraph detailing the firearms it appears that it was actually five firearms purchased on that date (id. at ¶ 30). This discrepancy should be corrected in any revised PSR.
The Court notes that one of these firearms purchased by Jenna Redding on May 11, 2018, was seized during execution of the search warrant at Williams’ Reed Street residence on May 18, 2018. (Dkt. 511 at ¶ 57).
A search warrant was executed at the 89 Parkridge Avenue residence, both upper and lower apartments, on May 18, 2018, and a pistol that was traced to a purchase by Jenna Redding in Ohio on May 11, 2018, and another pistol and various ammunition were recovered from the upper apartment. (Id. at ¶ 70). From the lower apartment, a total of ten firearms and various ammunition were recovered, including a shotgun that was traced to a purchase made by Koree Runyan in Ohio on May 9, 2018. (Id. at ¶ 71).
Based on the foregoing, the Court easily concludes that the government has established by a preponderance of the evidence that more than 25 firearms were involved in Thompson's offenses of conviction. Thompson was directing Williams to purchase specific firearms and he became Williams’ sole source of supply after they started their relationship. Thus, more than 25 firearms were reasonably foreseeable to Thompson and he appropriately bears responsibility for the straw purchases occurring on or after April 14, 2018.
2. Firearms Trafficking ( U.S.S.G. § 2K2.1(b)(5) )
Thompson objects to the four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5), which states "[i]f the defendant engaged in the trafficking of firearms, increase by 4 levels." Application Note 13(A) states as follows:
In General.—Subsection (b)(5) applies, regardless of whether anything of value was exchanged, if the defendant—
(i) transported, transferred, or otherwise disposed of two or more firearms to another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of firearms to another individual; and
(ii) knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual—
(I) whose possession or receipt of the firearm would be unlawful; or
(II) who intended to use or dispose of the firearm unlawfully.
U.S.S.G. § 2K2.1, Application Note 13(A). The Application Note goes on to define the term "defendant" consistent with U.S.S.G. § 1B1.3 (Relevant Conduct) so as to "limit[ ] the accountability of the defendant to the defendant's own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused." Id. , Application Note 13(B).
Here, as detailed in the Court's Decision and Order denying Thompson's post-verdict motions, the evidence presented at trial supports a conclusion that Thompson fronted Williams money to illegally purchase firearms in Ohio through straw purchasers, that Thompson placed orders for specific firearms to be purchased in this unlawful manner, and that if Williams ran out of money while in Ohio he contacted Thompson to send him more funds. Williams then arranged to transport the firearms back to Buffalo where they were acquired by Thompson or other buyers arranged by Thompson. Thompson was not legally authorized to possess firearms, as he was a convicted felon, and in addition, he was convicted by the jury of unlawful firearms dealing as charged in Count Two. The evidence supports a conclusion that Thompson was responsible for surreptitiously hiding ten firearms in the lower apartment of 89 Parkridge Avenue without the knowledge of the tenants who lived there (his aunt and uncle). And the evidence supports a conclusion that Thompson was responsible for transferring the firearms procured by Williams to other individuals in the Western New York area—many of which have never been recovered but some have been discovered at crime scenes in the area. (See Dkt. 511 at ¶ 26 (firearm recovered by Buffalo Police on May 20, 2018 traced to straw purchase by Diones Bowens); id. at ¶¶ 30-31 (firearm recovered by New York State Police as part of homicide investigation traced to straw purchase by Shane Shumaker on April 30, 2018); id. at ¶ 33 (firearm recovered by law enforcement in City of Buffalo on May 19, 2018 traced to straw purchase by Vicky Hoffstetter); id. at ¶ 42 (firearm recovered by New York State Police traced to firearm purchased by Jenna Redding on May 8, 2018); id. at ¶ 74 (firearm recovered during parole search traced to straw purchase by Koree Runyan on May 9, 2018)).
Based on this evidence, the application of U.S.S.G. § 2K2.1(b)(5) is plainly warranted, and Thompson's objection is overruled.
3. Another Felony Offense ( U.S.S.G. § 2K2.1(b)(6)(B) )
Thompson objects to the four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B), which provides that an offense level should be increased by four if the defendant:
used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense.
U.S.S.G. § 2K2.1(b)(6)(B). This provision applies "if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense...." Id. , Application Note 14(A). The term "another felony offense" as used in this Guideline means "any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained." Id. , Application Note 14(C). "[I]n the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia ... application of subsection (b)(6)(B) ... is warranted because the presence of the firearm has the potential of facilitating another felony offense...." Id. , Application Note 14(B).
Thompson's written objections seem to suggest that § 2K2.1(b)(6)(B) requires use or possession of any firearm or ammunition in connection with another firearm offense. (Dkt. 507 at 12). This is not supported by the language of the Guideline or Application Note 14, which expressly contemplates application of subsection (b)(6)(B) to a drug offense and defines another felony offense as including the drug count charged in Count Four for which Thompson was convicted (i.e. a violation of 21 U.S.C. § 856(a)(1) ). Here, at 89 Parkridge Avenue, upper apartment, which Thompson was found by the jury to have used and maintained for the purposes of drug activities as charged in Count Four, the following firearms and ammunition were recovered during execution of the search warrant on May 18, 2018: a Magpul 60-round magazine; a FNH 9mm pistol (traced to a straw purchase by Jenna Redding on May 11, 2018); and a Glock 23, .40 caliber pistol loaded with 16 rounds of .40 caliber ammunition. (Dkt. 511 at ¶ 70). The 60-round magazine was recovered in one of the bedrooms of the apartment (Dkt. 161 at 74), and the Glock pistol was discovered under the cushion of a couch in the living room (id. at 75). Also recovered in the upper apartment was a stainless steel kilo-press with hydraulic jack and spray (located in the attic), and various narcotic packaging equipment, including plastic bags, a vacuum sealer with bags, a strainer, digital square, small glassine envelopes, 40 bars of Mannite Cicogna, and blender parts. (Dkt. 511 at ¶ 70). Thus, based on this evidence, the preponderance of the evidence demonstrates that Thompson possessed firearms and ammunition in connection with another felony offense, namely the drug activities occurring at the upper apartment of 89 Parkridge Avenue. In addition, the credible evidence suggests that Thompson supplied Williams with some type of illegal drug in the upper apartment at the same time that the two were engaged in the exchange of firearms, further supporting this enhancement. See United States v. Ryan , 935 F.3d 40, 42 (2d Cir. 2019) ("[S]elling firearms and drugs in the same transaction will normally facilitate both the drug sale and future drug sales, and that is enough to trigger the enhancement under § 2K2.1(b)(6)(B).").
Thompson's counsel noted during Oral Argument that the Court sustained co-defendant Deonte Cooper's ("Cooper") objection to this enhancement based, in part, on a stolen firearm recovered at his Runkle Avenue apartment in Ohio. (See Dkt. 476 at 9-10). However, there are several differences between the evidence supporting the enhancement with respect to Thompson as compared to Cooper. First, as the Court noted in its Decision and Order sustaining Cooper's objection, the government did not establish the requisite link between the stolen firearm located upon execution of a search warrant at Cooper's residence and the firearms trafficking conspiracy. (Id. at 6-8). Here, by contrast, the numerous firearms recovered at 89 Parkridge Avenue were clearly linked to the firearms conspiracy, including a firearm traced to a straw purchase by Jenna Redding that was recovered at the upper apartment of 89 Parkridge Avenue which Thompson used and maintained for drug activities. Second, while not dispositive since Application Note 14(C) includes within the definition of "another felony offense" an offense that is neither brought nor where a conviction is obtained, here Thompson was convicted of maintaining the upper apartment at 89 Parkridge Avenue for drug activities, whereas Cooper was not on trial for any drug crimes. Third, Application Note 14(B)’s reference to applying the enhancement in the case of a drug trafficking offense where the firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia, was never cited in connection with Cooper's objections to this enhancement, including in the government's memorandum submitted in opposition to Cooper's objections. (See Dkt. 416 at 5-6). There is at least the possibility that, had the Application Note been brought to the Court's attention, the resolution of Cooper's objection about this specific offense characteristic may have been different.
4. U.S.S.G. Chapter 3 Role Adjustment
The PSR proposes a three-level upward adjustment in the offense level pursuant to U.S.S.G. § 3B1.1(b), stating as follows:
The defendant had an integral role in the instant offense, justifying an aggravating role enhancement. Evidence corroborates that through the recruitment of co-conspirators Orlando, Bowens, Hoffstetter, Shumaker, Runyan, and Redding, well over 25 firearms were purchased for Williams in April and May 2018 which were later sold to the defendant. The defendant on more than one (1) occasion directed several unidentified co-conspirators to facilitate the inspection of firearms on his behalf. As the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity that involved five (5) or more participants or was otherwise extensive, the offense is increased by three (3) levels, pursuant to § 3B1.1(b).
(Dkt. 511 at ¶ 101). Both the government and Thompson object to this paragraph of the PSR—the government arguing that a greater enhancement is warranted (Dkt. 473 at 11-12; see Dkt. 516 at 13-14) and Thompson arguing that no enhancement under this Guideline should be applied (Dkt. 507 at 12).
U.S.S.G. § 3B1.1 provides that if the criminal activity involved "five or more participants or was otherwise extensive" and the defendant was "an organizer or leader" of the criminal activity, then the offense level should be increased by four levels, whereas if the defendant was "a manager or supervisor (but not an organizer or leader)" then the offense level should be increased by three levels. A participant includes any person "who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1, Application Note 1. To qualify for an enhancement under this Guideline, the defendant "must have been the organizer, leader, manager, or supervisor of one or more other participants." Id. , Application Note 2. Application Note 4 provides the following guidance on distinguishing a leadership or organization role from one of mere management or supervision:
Factors the court should consider include the exercise of decision making authority, the nature of participation in
the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Id. , Application Note 4. For the reasons discussed below, the Court adopts the PSR's conclusion that the offense level should be increased by three pursuant to § 3B1.1(b), and overrules both the government's and Thompson's objections.
First, with respect to the requirement of five or more participants, that qualification is easily satisfied in this case. The firearms trafficking conspiracy included five or more participants as straw purchasers alone (e.g. , Orlando, Diones Bowens, Shane Shumaker, Vicky Hoffstetter (along with her husband), Jenna Redding, and Koree Runyan). In addition, it also included Williams, Cooper, and Thompson himself, along with the individuals who Thompson brought to Williams’ home to inspect and procure the firearms. See United States v. Si Lu Tian , 339 F.3d 143, 156 (2d Cir. 2003) ("Although the criminal activity at issue must involve five or more participants or be otherwise extensive, the Sentencing Guidelines only require that the defendant be an organizer or leader of one or more of those participants for the section 3B1.1(a) enhancement to be appropriate."); see also United States v. Kirk Tang Yuk , 885 F.3d 57, 83 (2d Cir. 2018) ("[T]he Guidelines require only that the conspiracy actually involve five or more participants, not that the organizer be aware of all participants.").
Second, with respect to Thompson's role in this case, the Court concludes that it is an extremely close call as to whether he qualifies as an organizer or leader, or instead a manager or supervisor. As noted in Application Note 2, a defendant need only serve in this enhanced role of organizer, leader, manager, or supervisor, with respect to one or more participants in the criminal activity. Here, the preponderance of the evidence suggests that Thompson arranged for and directed the individuals who arrived with him at Williams’ Reed Street residence to inspect the firearms once they were transported from Ohio. On April 14, 2018, Orlando testified that Thompson arrived with about four other "younger gentlemen" who put on gloves and, after inspecting the firearms, left with the firearms without any exchange of money. (Dkt. 317 at 95-98). Similarly, on April 15, 2018, about two or three individuals arrived at the Reed Street residence after Thompson arrived and a similar exchange occurred, with the individuals purchasing the firearms. (Id. at 122-26). Thompson arranged with Williams the financial details of the transactions in advance of these individuals’ arrival at the Reed Street residence and the evidence supports a conclusion that Thompson supervised these individuals.
In addition, Thompson directed Williams as to which firearms to purchase and he fronted the money for Williams to procure the firearms, even sending money to Ohio when necessary. The PSR makes the point that it was Williams, not Thompson, who was directing the straw purchasers (Dkt. 511 at 49-50), and that is true. But Thompson was directing Williams, who was directing and supposed to be compensating the straw purchasers. The PSR suggests that Thompson and Williams each had their own illicit activities, and elected to work in concert for their mutual benefit. (Id. at 50). But that does not mean that Thompson was not directing Williams or could not be considered in a leadership role with respect to Williams, even if Williams also served in a leadership role. See United States v. Yeager , 331 F.3d 1216, 1227 (11th Cir. 2003) ("When a conspiracy involves only two participants, each participant can be a ‘organizer, leader, manager, or supervisor’ in the criminal conduct when each participant takes primary responsibility for a distinct component of the plan and exercises control or influence over the other participant with respect to that distinct component of the plan."). In other words, "[a] conspiracy can have more than one leader." United States v. Valdez , 453 F.3d 252, 263 (5th Cir. 2006) ; see also U.S.S.G. § 3B1.1, Application Note 4 ("There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.").
Here, it was Thompson who as of mid-April 2018, was exercising the decision-making authority over the types and numbers of firearms being purchased in Ohio and brought back to Buffalo. Thompson was funding the operation by paying Williams in advance, and even sending money to Ohio when necessary. And the evidence supports a conclusion that it was Thompson who recruited the individuals to come to Williams’ Reed Street home to inspect and procure the firearms. Yet, Thompson did not directly supervise any of the straw purchasers, who were being directed by Williams. Again, this is an extremely close call as to the appropriate aggravating role that Thompson should be credited for pursuant to § 3B1.1, and it is arguably just as supportable based on the facts to conclude that the four-level organizer or leader enhancement should apply. But the Court ultimately concludes that accepting the PSR's proposal is the most appropriate finding based on the facts, and accordingly, it overrules both the government's and Thompson's objection as to this aspect of the PSR.
5. Thompson's Objections to Criminal History Score and Information
Thompson asserts various objections to his criminal history score and the information included in the PSR about that criminal history. With respect to the score, Thompson contends that two points should not be added to his criminal history score pursuant to U.S.S.G. § 4A1.1(d). (Dkt. 507 at 13). Section 4A1.1(d) calls for two points to be added to a defendant's criminal history score if he committed the instant offense "while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." According to the PSR, Thompson was convicted in Erie County Supreme Court for Attempted Criminal Possession of a Narcotic Drug, 4th Degree (Class D felony) and sentenced to 30 months incarceration on November 18, 2011, with two years post release supervision. (Dkt. 511 at ¶¶ 114-17). The PSR suggests that Thompson's parole for this conviction was revoked on more than one occasion, and that the maximum expiration for the parole was December 21, 2017. (Id. at ¶ 114).
As noted at oral argument, the Court sustains Thompson's objection. The evidence at trial established that he became involved in the conspiracy in April 2018. Counts Two through Four similarly involved conduct alleged to have occurred in March 2018 or later. (See Dkt. 246 at 27-30). Since the criminal justice sentence at issue in paragraph 114 of the PSR terminated as of December 21, 2017, it is not appropriate to include two additional points from U.S.S.G. § 4A1.1(d) in calculating Thompson's criminal history score. Thus, the Court directs that the PSR be revised to reflect a criminal history score of six, with a resulting criminal history category of III. Thompson also "objects to the entire information set forth in paragraphs 121-137" of the PSR. (Dkt. 507 at 13). Thompson argues that these paragraphs—which reflect information concerning alleged other arrests with predominantly a disposition noted as no record found or no disposition reported—should not be considered, and in fact, for two of the arrests he was in jail when the charges are alleged to have occurred. (Id. ). According to the United States Probation Office, the information contained in these paragraphs "was derived from various arrest reports or other court records." (Dkt. 511 at 56).
The paragraphs to which Thompson objects are actually 122 through 138 in the PSR which was revised on February 8, 2021, after the date Thompson filed his objections.
The Court agrees that 18 U.S.C. § 3661 states that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." See , e.g. , United States v. Romano , 825 F.2d 725, 728 (2d Cir. 1987) ("As a general rule, a district judge has discretion to consider a wide range of information concerning a defendant's background in arriving at an appropriate sentence. Thus, a district judge may consider hearsay statements, evidence of uncharged crimes, dropped counts of an indictment and criminal activity resulting in an acquittal in determining sentence." (citations omitted)); cf. United States v. Whitehead , 986 F.3d 547, 550 n.3 (5th Cir. 2021) ("Generally, a district court may not consider a defendant's ‘bare arrest record’ at an initial sentencing. However, an arrest record is not bare when it is accompanied by ‘a factual recitation of the defendant's conduct that gave rise to a prior unadjudicated arrest’ and ‘that factual recitation has an adequate evidentiary basis with sufficient indicia of reliability.’ " (citations omitted)). However, because of the uncertainty concerning the specifics surrounding these prior arrests, the Court does not intend to rely on the information reflected in these paragraphs at the time of sentencing, and accordingly, it need not and does not resolve Thompson's objections to the information contained in these paragraphs.
6. Government's Remaining Objections
The government argues that Thompson obstructed justice by suborning the perjury of his brother Romont at trial. (Dkt. 473 at 12). As the Court advised at Oral Argument, it agrees with the government that Romont perjured himself at trial and that his testimony was "far-fetched" and incredible. However, there is not enough evidence to support a preponderance of evidence finding that Thompson caused Romont to testify falsely. Unlike the case relied upon by the government where in fact the defendant was convicted of witness-tampering and jail calls supported the conclusion that the defendant had suborned perjury of a witness, see United States v. Johnson , 968 F.2d 208, 210 (2d Cir. 1992), the details of any conversations between Thompson and Romont prior to the trial testimony are unknown. On this record, the Court cannot conclude that the obstruction of justice enhancement of U.S.S.G. § 3C1.1 should apply.
As noted during Oral Argument, the addendum to the PSR suggests that "the Court did not conclude that [Romont] perjured himself," (Dkt. 511 at 50), but in fact, the Court has referenced the testimony as "incredible" in the context of the sufficiency of the evidence when addressing Thompson's post-verdict motions (Dkt. 486 at 5), and the Court was never requested to and did not make any specific findings about Romont's perjury. This statement should be corrected in any revised PSR.
The government also argues that a two-level increase pursuant to U.S.S.G. § 3B1.3 should be applied, arguing that Thompson abused a position of trust because he was the landlord and nephew of Cynthia and Garfield Nowlin and hid firearms in their apartment. (Dkt. 473 at 13). Alternatively, the government argues that to the extent the evidence does not technically support this enhancement, the facts are relevant and should be considered in fashioning Thompson's sentence. (Id. ). The Court agrees with the government that these facts are among many that should be considered by the Court at sentencing. However, the Court cannot conclude on this record, based in part on the reasoning set forth by the United States Probation Office in its addendum to the PSR (see Dkt. 511 at 51), that it would be appropriate to apply § 3B1.3 to the facts of this case, and therefore declines to do so.
The Court does not agree with the addendum's reference to only one firearm being seized from the Nowlins’ apartment. (Dkt. 511 at 51). In fact, ten firearms were seized from the lower apartment, including one that was directly traced to a straw purchase in Ohio by Koree Runyan on May 9, 2018. (Id. at ¶ 71). Due to the secretive manner in which the firearms were hidden in the Nowlins’ apartment without their knowledge, as well as the number of firearms secreted in the apartment, the evidence supports a conclusion that Thompson's use of the apartment significantly facilitated the commission or concealment of the offense. See United States v. Huggins , 844 F.3d 118, 124 (2d Cir. 2016) ("[T]his abuse of trust enhancement involves a two-prong analysis: (1) whether the defendant occupied a position of trust from the victim's perspective and (2) whether that abuse of trust ‘significantly facilitated the commission or concealment of the offense.’ " (citation omitted)). However, the Court is not convinced that the record supports a finding that Thompson's relationship with his aunt and uncle was a position of "private trust" within the meaning of the U.S.S.G. § 3B1.3. See United States v. Allen , 201 F.3d 163, 166 (2d Cir. 2000) ("The term ‘public or private trust’ refers to a position characterized by professional or managerial discretioni.e. , substantial discretionary judgment that is ordinarily given considerable deference."). As the government acknowledges, the details of the lease agreement between Thompson and the Nowlins are not known. (Dkt. 473 at 13 n.4). Moreover, it was not necessarily any trust that the Nowlins placed in Thompson that allowed him to commit these acts—rather, it was his secretive behavior and surreptitious access to the apartment that allowed the firearms to be placed in the apartment.
Finally, the government seeks an upward departure in the Guidelines pursuant to U.S.S.G. § 5K2.0 under the theory that the circumstances of Thompson's offenses involve aggravating circumstances not adequately accounted for by the Guidelines because of the concealment of the firearms in his aunt and uncle's apartment and his brother's perjured testimony. (Dkt. 473 at 13-14). The Court has already addressed the lack of evidentiary proof of a link between Thompson's conduct and his brother's perjured testimony, and the Court rejects the notion that it should upwardly depart from the Guidelines because of Thompson's use of his aunt and uncle's apartment. Any argument that the Court should vary from the Guidelines on that basis or because of any of the factors set forth at 18 U.S.C. § 3553(a) may be addressed by each party at the time of sentencing.
III. CONCLUSION
For the foregoing reasons, the Court resolves the government's and Thompson's objections as stated above. Based on the resolution of the objections, the offense level remains at 37 as calculated in the PSR, but the criminal history category should be changed to III, resulting in a recommended prison sentence under the Sentencing Guidelines of 262 to 327 months. As previously indicated, the Court directs that a revised presentence investigation report be prepared and filed consistent with this Decision and Order, on or before May 14, 2021. Sentencing is set for June 23, 2021, with any further sentencing submissions due in accordance with the Text Order entered on April 21, 2021. (Dkt. 535).
SO ORDERED.