United States v. Bradshaw

24-1024(L) United States v. Bradshaw 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 3rd day of November, two thousand twenty-six. PRESENT: BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, MYRNA PÉREZ, Circuit Judges. ________________________________________ UNITED STATES OF AMERICA, Appellee, v. Nos. 24-1024 (Lead) 24-2492 (Con) ADRIAN BRADSHAW, Defendant-Appellant. ________________________________________ 1 FOR DEFENDANT-APPELLANT: LAWRENCE D. GERZOG, The Fast Law Firm, P.C., New York, NY FOR APPELLEE: QAIS GHAFARY (Kaiya Arroyo, Jacob R. Fiddelman, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY. Appeal from an April 16, 2024 judgment of conviction and a September 19, 2024 judgment of revocation of supervised release of the United States District Court for the Southern District of New York (Karas, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of conviction is AFFIRMED in part, VACATED in part, and REMANDED with instructions to conform the written judgment to the oral pronouncement. The judgment of revocation of supervised release is AFFIRMED. Defendant-Appellant Adrian Bradshaw was convicted, following a jury trial, of one count of possessing crack cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (“Count One”); one count of using, carrying, and possessing a firearm in furtherance of the drug trafficking crime in Count One, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (“Count Two”); and one count of possessing a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1) (“Count Three”). The District Court principally sentenced Bradshaw on those counts to an aggregate term of 132 months’ imprisonment and five years’ supervised release. Because Bradshaw had been serving a 2 prior term of supervised release at the time of his offenses, the District Court concluded, in a separate proceeding, that Bradshaw’s offenses constituted violations of that supervised release. The District Court revoked that term of release and sentenced Bradshaw to an additional twelve months’ imprisonment on the violations—to run consecutively to the sentence on Counts One, Two, and Three. Bradshaw now appeals both the judgment of conviction on Counts One, Two, and Three and the judgment of revocation of supervised release. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, which we reference only as necessary to explain our decision. I. Background While executing a warrant for Bradshaw’s arrest in Connecticut, officers stopped a car in which he was a passenger (and which he had recently been driving). 1 Bradshaw exclaimed, “Anything in the car is mine.” App’x at 59. The officers searched the car and found, in a compartment inside one of the doors, a firearm and a clear plastic bag containing forty-six grams of crack cocaine. The officers also searched Bradshaw’s person and seized a cell phone from his pocket. A forensic search of the cell phone revealed videos and images of large quantities of cash, as well as messages using slang terms for cocaine and marijuana. In one 1 Bradshaw consented to prosecution in the Southern District of New York. See June 1, 2023 Conf. Tr. at 22–23. The arrest warrant was based on a separate alleged violation of Bradshaw’s prior term of supervised release that was never prosecuted. 3 conversation, Bradshaw asked a contact, “do we have $1600 yet”? The contact replied that they had $650 and that someone else “had 7 pieces.” Gov. Ex. 605-1. Bradshaw responded, “Th[a]ts it . . . 7 pieces??” and said, “I gave [you] th[a]t w[o]rk before [you] finished the last batch also bud too before last batch.” Id. In a conversation with a different contact, Bradshaw sent messages saying, “[m]ix me up”; “I’m trying to do za mix with good blocky on breakdown”; and “[b]lock work good money.” Gov. Ex. 601-1. He also sent a photo of cash and said, “I got y[o]ur bread.” Gov. Ex. 601-2. At trial, the Government called Special Investigator Alfred Hernandez as an expert in narcotics investigations. Hernandez testified to the difference between personal-use and distribution quantities of crack cocaine, as well as to common slang used in the drug trade, including “pieces” or “block” for crack cocaine, “work” for drug sales, “bud” or “za” for marijuana, and “bread” for money. The Government also called Special Agent Matthew Sansone of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) as an expert in firearms manufacturing. Sansone testified that the firearm recovered from the car was manufactured in Massachusetts based on its marking, make, and model. On appeal, Bradshaw contends that the evidence was insufficient to establish that he had “intent to . . . distribute” as required for his conviction on Count One, 21 U.S.C. § 841(a)(1), or that he possessed a firearm “in or affecting” interstate commerce as required for his conviction on Count Three, 18 U.S.C. § 922(g). Bradshaw also challenges his sentence on Counts One, Two, and Three on two grounds: that the District Court 4 failed to verify whether Bradshaw and his counsel read and discussed the presentence report (“PSR”) at sentencing, in violation of Federal Rule of Criminal Procedure 32(i)(1)(A); and that the District Court’s imposition of the standard conditions of supervised release violated United States v. Maiorana, 153 F.4th 306 (2d Cir. 2025) (en banc). II. Sufficiency of the Evidence In reviewing Bradshaw’s challenges to the sufficiency of the evidence, “we view the evidence in the light most favorable to the government, drawing all inferences in the government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.” United States v. Guldi, 141 F.4th 435, 444 (2d Cir. 2025) (quoting United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010)). We must uphold the jury verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). As to Count One, the evidence was sufficient to establish that Bradshaw had “intent to . . . distribute.”2 21 U.S.C. § 841(a)(1). The evidence established that Bradshaw possessed forty-six grams of crack cocaine. Hernandez’s testimony explained that this amounted to more than 700 personal-use doses. And Bradshaw’s cell phone contained 2 Bradshaw further argues that the insufficient evidence as to Count One requires reversing Count Two, as well as the supervised release violations corresponding to both counts, because Count One was a predicate for Count Two. Because the evidence is sufficient to sustain Count One, we reject Bradshaw’s argument. 5 messages using common slang for cocaine, marijuana, and drug sales, as Hernandez’s testimony confirmed. The messages also discussed large quantities of cash, and the phone contained images and videos of the same. Viewing that evidence in the light most favorable to the Government, a rational jury could infer that Bradshaw intended to distribute the crack cocaine. Even if we agreed with Bradshaw’s argument that Hernandez’s testimony violated Federal Rule of Evidence 704(b), that would not affect our conclusion. See United States v. Hardwick, 523 F.3d 94, 101 (2d Cir. 2008) (“[W]e must make our determination concerning sufficiency taking into consideration even the improperly admitted evidence.” (quoting United States v. Cruz, 363 F.3d 187, 197 (2d Cir. 2004))). In any event, Hernandez stated no opinion as to whether Bradshaw possessed a “mental state or condition that constitutes an element of the crime charged or of a defense.” Fed. R. Evid. 704(b). As to Count Three, the evidence was sufficient to establish that Bradshaw possessed a firearm “in or affecting” interstate commerce. 18 U.S.C. § 922(g). Sansone testified that the firearm recovered from the car had a stamp indicating it was manufactured in Springfield, Massachusetts. Sansone also explained that ATF requires firearms to be stamped with the location of manufacture, and that “virtually all” firearms of this type were manufactured in Massachusetts. Viewing that evidence in the light most favorable to the Government, a rational jury could infer that the firearm had traveled in interstate commerce from Massachusetts, where it was manufactured, to Connecticut, 6 where Bradshaw was arrested. That inference was not precluded by Sansone’s testimony that a manufacturer could theoretically apply for a marking variance from ATF. As Bradshaw concedes, this Court’s precedent forecloses his additional argument that 18 U.S.C. § 922(g) violates the Second Amendment. See Zherka v. Bondi, 140 F.4th 68, 96 (2d Cir. 2025). III. Rule 32(i)(1)(A) Turning to sentencing, we review Bradshaw’s Rule 32(i)(1)(A) challenge for plain error because there was no contemporaneous objection. United States v. Gates, 84 F.4th 496, 507 (2d Cir. 2023); United States v. Algahaim, 842 F.3d 796, 799 (2d Cir. 2016). The District Court did not plainly violate Rule 32(i)(1)(A), which requires it to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report.” Toward the start of the sentencing proceeding, the District Court asked defense counsel if he “had enough time to go over the presentence report with Mr. Bradshaw.” App’x at 193. Counsel answered, “I have,” and expressly disclaimed any objection to the PSR. Id. Counsel’s statement, which is most reasonably understood to mean that both he and Bradshaw had read and discussed the PSR, “entitled [the District Court] to conclude that Rule 32(i)(1)(A) had been satisfied.” Algahaim, 842 F.3d at 800; see id. (holding that defense counsel’s assurance that “[y]eah, we did go over it [the PSR]” was enough for the district court to conclude that Rule 32(i)(1)(A) had been satisfied). In any event, Bradshaw has not established that the District Court’s alleged error affected his substantial rights or the 7 fairness of the proceedings. See Gates, 84 F.4th at 507 (finding no effect on the defendant’s substantial rights where she did not dispute the accuracy of the PSR or identify any prejudice from the alleged error); see also United States v. Marcus, 560 U.S. 258, 262 (2010) (outlining plain error criteria). IV. Standard Conditions of Supervised Release We also review for plain error Bradshaw’s challenge to the twelve standard conditions of supervised release, because he did not object to those conditions at sentencing despite having notice of them in the PSR.3 To be sure, “plain error review is not always warranted in the sentencing context.” Maiorana, 153 F.4th at 310 (quoting United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015)). But this case is unlike Maiorana, where the defendant had “no way of knowing” that the District Court would impose the standard conditions because they were neither included in the PSR nor orally pronounced at all. Id. The inclusion of the twelve standard conditions in the PSR gave Bradshaw an “opportunity to object to them at the sentencing hearing,” id., and because he did not do so, plain error review is appropriate. The District Court did not plainly err by stating, “The standard conditions of supervision 1 through 12 are imposed. Those will be explained later,” without further explanation. App’x at 194. Maiorana made clear that “[a] sentencing court need not read 3 We refer to the twelve standard conditions listed in the PSR. Those standard conditions are numbered one through eleven and thirteen in the written judgment. As discussed below, standard condition twelve in the written judgment must be struck because it was not orally pronounced. 8 the full text of every condition on the record,” so long as it “expressly adopt[s] or specifically incorporate[s] by reference particular conditions that have been set forth in writing and made available to the defendant in the PSR.” 153 F.4th at 314. The District Court’s statement here can only be reasonably interpreted as a reference to the twelve standard conditions in the PSR, which are also listed in § 5D1.3(c) of the United States Sentencing Guidelines. Even if the District Court could have been more specific, see United States v. DeJesus, 182 F.4th 233, 243 (2d Cir. 2026) (holding that the district court satisfied Maiorana by incorporating standard conditions “by oral reference to the pages of the PSR in which they were set forth”), it did not plainly violate Maiorana. Bradshaw’s challenge to the twelve standard conditions in the PSR therefore fails. The District Court’s written judgment, however, was inconsistent with its oral sentence in two respects. First, the written judgment included a thirteenth standard condition—a “risk” condition—that was neither listed in the PSR nor orally pronounced at sentencing, and that we have previously held to be impermissibly vague.4 See United States v. Boles, 914 F.3d 95, 111–12 (2d Cir. 2019). Second, the written judgment failed to include a special condition—a “substance abuse treatment” condition—that the District Court orally imposed at sentencing. Sent’g Tr. at 50. The Government concedes that a 4 The “risk” condition, which is listed in the written judgment as condition twelve (of thirteen), states in full: “If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.” App’x at 205. 9 limited remand is appropriate to correct these discrepancies. Appellee’s Br. at 27. We agree.5 We therefore vacate the April 16, 2024 judgment of the District Court with respect to the standard risk condition, and we otherwise affirm. We remand for the District Court to strike the standard risk condition from the written judgment and add the special substance abuse treatment condition. V. Conclusion We have considered Bradshaw’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM in part, VACATE in part, and REMAND the April 16, 2024 judgment of conviction with instructions to conform the written judgment to the oral pronouncement; and we AFFIRM the September 19, 2024 judgment of revocation. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 5 Contrary to Bradshaw’s assertion in reply, Appellant’s Reply Br. at 12–13, resentencing is unwarranted because the omitted special condition was orally pronounced at sentencing, Sent’g Tr. at 50. Adding that condition to the written judgment therefore does not violate Bradshaw’s right to be present at sentencing. 10