UNITED STATES OF AMERICA v. ROBERT SMITH (2017)

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant Robert Smith appeals from the judgment of the United States District Court for the Eastern District of New York (Cogan, J.), entered on July 14, 2016, sentencing him principally to twenty-one months' imprisonment for the offense of possession with intent to distribute cocaine base. Smith was convicted of this offense following a jury trial, where he was also acquitted of the charges of unlawful use of a firearm and of being a felon in possession of a firearm. We assume the parties' familiarity with the facts and procedural history of this case, as well as the issues on appeal.

First, Smith argues that the district court erred in not holding an evidentiary hearing on his pretrial motion to suppress evidence. In the context of a motion to suppress evidence, we review a district court's “decision not to hold an evidentiary hearing for abuse of discretion.” United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001). An “evidentiary hearing on a motion to suppress ordinarily is required if ‘the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.’ ” United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992) (quoting United States v. Licavoli, 604 F.2d 613, 621 (9th Cir. 1979)); see also United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005). Here, the district court did not abuse its discretion in finding that the affidavit submitted by Smith in connection with his motion to suppress was insufficiently definite to raise a contested issue of fact as to whether his arrest was lawful.

Second, Smith contends that the district court violated his Fifth and Sixth Amendment rights in adding an enhancement to his offense level under the U.S. Sentencing Guidelines on the basis of his possession of a dangerous weapon in connection with a drug offense. “In reviewing Guidelines calculations, we apply a de novo standard to legal conclusions ․” United States v. Walker, 595 F.3d 441, 443 (2d Cir. 2010). As Smith recognizes, this Court has held that district courts may consider acquitted conduct in imposing sentence, see United States v. Vaughn, 430 F.3d 518, 526–27 (2d Cir. 2005), and we are bound by that precedent. Moreover, defense counsel did not object at sentencing to the district court's authority to consider acquitted conduct, and even were we of the view that the district court was in error in considering acquitted conduct, such error was not “plain.” See United States v. McCrimon, 788 F.3d 75, 78 (2d Cir. 2015) (per curiam).

We have considered all of Smith's arguments and find in them no basis for reversal. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, CLERK