UNITED STATES v. SEMIDEY (2020)

United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. William SEMIDEY, aka June, Defendant-Appellant.1

18-2256

Decided: July 31, 2020

Present: RALPH K. WINTER, ROSEMARY S. POOLER, MICHAEL H. PARK, Circuit Judges. Appearing for Appellant: Randolph Z. Volkell, Merrick, N.Y. Appearing for Appellee: Brian P. Leaming, Assistant United States Attorney (Marc H. Silverman, on the brief), for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT.

SUMMARY ORDER

William Semidey appeals from the July 31, 2018 judgment of the United States District Court for the District of Connecticut sentencing him principally to 51 months’ imprisonment after Semidey entered a plea of guilty to one count of unlawful possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Semidey first challenges his indictment based on Rehaif v. United States, in which the Supreme Court held that the defendant's knowledge of his belonging “to the relevant category of persons barred from possessing a firearm” is an element of a Section 922(g) offense. ––– U.S. ––––, 139 S. Ct. 2191, 2200, 204 L.Ed.2d 594 (2019). He argues that because the indictment here does not contain such an allegation regarding his knowledge, it fails to allege an offense. Thus, Semidey argues, the court lacked subject matter jurisdiction, and the count must be dismissed.

Semidey's argument is foreclosed by our opinion in United States v. Balde, 943 F.3d 73 (2d Cir. 2019). Balde found that “an indictment that does not clearly indicate that the defendant is required to know he or she is in a prohibited category may be deficient in some way ․, but its absence does not mean that the indictment fails to allege a federal offense in the sense that would speak to the district court's power to hear the case.” Id. at 90-91. Thus, “the indictment's failure to allege that [the defendant] knew [his status] was not a jurisdictional defect.” Id. at 92. We thus decline to dismiss the indictment.

Semidey also argues that the district court abused its discretion in denying him an adjustment for acceptance of responsibility. The district court's denial of an offense level reduction based on acceptance of responsibility is reviewed for abuse of discretion. See United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013). “Whether the defendant has accepted responsibility is a factual question, and a district court's determination in this regard should not be disturbed unless it is without foundation.” United States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994) (internal quotation marks and bracket omitted).

Semidey sought to withdraw his guilty plea on the ground that he did not participate in narcotics trafficking, despite his failure to challenge the presentence report's finding that Semidey was involved in heroin distribution. In addition, Semidey arguably breached the plea agreement by objecting to the stolen-firearm enhancement. Semidey's reliance on United States v. Lee, 653 F.3d 170 (2d Cir. 2011), is inapposite. Lee stands for the proposition that a defendant “has a due process right to reasonably contest errors in the PSR that affect [the] sentence.” Id. at 174. But here Semidey challenges a fact he stipulated to in the plea agreement, not a fact contained in the presentence report. The district court acted well within its discretion to find such an argument demonstrated a failure to accept responsibility.

We have considered the remainder of Semidey's arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.