United States v. Wynn

22-2721-cr (L)
United States v. Wynn
In the
United States Court of Appeals
For the Second Circuit
August Term, 2023
Nos. 22-2721-cr (L); 22-2875-cr (con)
UNITED STATES OF AMERICA,
Appellee,
v.
RASHAWN WYNN, FKA SEALED DEFENDANT #9, AKA WORMY,
KEMNORRIS KINSEY, FKA SEALED DEFENDANT #13, AKA PEP,
Defendants-Appellants. †
On Appeal from a Judgment of the United States District Court for
the Northern District of New York.
SUBMITTED: MARCH 5, 2024
DECIDED: JULY 16, 2024
Before: WALKER, NARDINI, AND MENASHI, Circuit Judges.
† This opinion resolves only Defendant-Appellant Rashawn Wynn’s
appeal, No. 22-2721 (L). Defendant-Appellant Kemnorris Kinsey’s appeal, No. 22-
2875 (con) was resolved by summary order filed 3/18/24.

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Defendant-Appellant Rashawn Wynn pleaded guilty in the
United States District Court for the Northern District of New York
(Frederick J. Scullin, District Judge) to racketeering conspiracy in
violation of 18 U.S.C. § 1962(d). The district court sentenced Wynn to
92 months in prison. Wynn appealed and this Court remanded for
resentencing, determining that the district court erred in denying
Wynn a mitigating role adjustment under U.S.S.G. § 3B1.2 without
first addressing certain factors that might have supported one. At
resentencing, the district court explained its reasoning more
thoroughly, again denied Wynn a mitigating role adjustment, and
imposed the same 92-month prison term. Wynn appeals once more,
arguing that the district court erred by denying him the requested
adjustment and that his term of imprisonment is substantively
unreasonable. We are unpersuaded. On remand, the district court
did not clearly err in concluding that Wynn failed to establish that he
was substantially less culpable than the average participant in his
criminal enterprise. Wynn’s term of imprisonment is also
substantively reasonable given his criminal conduct and history.
Accordingly, we AFFIRM the judgment of the district court.
Nicolas Commandeur, Rajit S. Dosanjh,
Assistant United States Attorneys, for Carla
B. Freedman, United States Attorney for the
Northern District of New York, Syracuse,
NY, for Appellee.
Arthur R. Frost, Frost & Kavanaugh, P.C.,
Troy, NY, for Defendant-Appellant.

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WILLIAM J. NARDINI, Circuit Judge:
Defendant-Appellant Rashawn Wynn pleaded guilty in the
United States District Court for the Northern District of New York
(Frederick J. Scullin, District Judge) to racketeering conspiracy, in
violation of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962(d), based on his longtime involvement in
the 110 Gang, a violent drug-trafficking group based in Syracuse,
New York. In his plea agreement, Wynn stipulated that he
participated in the gang’s drug trafficking operations and personally
sold 42.2 grams of crack cocaine.
The United States Probation Office calculated Wynn’s advisory
sentencing range under the United States Sentencing Guidelines.
With a total offense level of 23 and a criminal history category of VI,
Wynn faced an advisory range of 92 to 115 months of imprisonment.
At sentencing, Wynn requested a further two- or three-level reduction
in his offense level under U.S.S.G. § 3B1.2, on the ground that he was

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no more than a minor participant in the criminal activity. The district
court denied this request, adopted Probation’s calculations, and
imposed a sentence of 92 months, at the bottom of the Guidelines
range.
Wynn appealed, challenging the calculation of his offense level
and asserting that the district court erred in its refusal to apply a
mitigating role adjustment. United States v. Wynn, 37 F.4th 63, 65 (2d
Cir. 2022). This Court held that the district court erred in denying
Wynn the adjustment “without first addressing many relevant factors
that appear to support” it, and vacated Wynn’s sentence and
remanded for resentencing. Id. at 69. On remand, the district court
explained its reasoning more extensively and again concluded that
Wynn was not entitled to a mitigating role adjustment. The court
reimposed a term of 92 months of imprisonment.
Wynn now challenges his 92-month sentence as procedurally
and substantively unreasonable. Primarily, he renews his argument

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that he should have received a downward adjustment because of his
minor role in the activities of the 110 Gang. Wynn also contends that
his sentence was substantively unreasonable when compared to the
sentences of his co-conspirators. We disagree. The district court did
not clearly err in concluding that Wynn failed to establish by a
preponderance of the evidence that he played a minor role in the
racketeering enterprise. At the resentencing hearing, the district court
identified several factors, based in the record, that supported its
determination that Wynn was not substantially less culpable than the
average participant in the criminal activity and thus was not entitled
to a mitigating role adjustment. We also conclude that Wynn’s 92-
month sentence—at the bottom of his correctly calculated Guidelines
range—was substantively reasonable, particularly in light of his
offense conduct and extensive criminal history. Accordingly, we
affirm the district court’s judgment.

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I. Background
Wynn was a member of a criminal organization known as the
110 Gang, which has operated for over twenty years in a multiblock
area on the southwest side of Syracuse, New York. In October 2018,
Wynn was charged in a one-count indictment with participating in a
racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). The
charge stemmed from Wynn’s association with the 110 Gang and
participation in its pattern of racketeering activity, which included
murder, robbery, drug trafficking, and fraud.1
The 110 Gang engaged in drug trafficking and violence,
including assault and murder, to maintain control over its territory
and drug distribution business. Members of the 110 Gang also
1 The indictment charged Wynn and others with conspiring from 2012 to
October 25, 2018, to violate 18 U.S.C. § 1962(c), by participating, directly and
indirectly, in the conduct of the 110 Gang through a pattern of racketeering activity
including (1) multiple acts involving murder, in violation of New York Penal Law
§§ 125.25, 110.00, and 105.15; (2) multiple acts involving robbery, in violation of
New York Penal Law §§ 160.15, 160.10, 160.05, 110.00, and 105.10; (3) multiple acts
indictable under 18 U.S.C. § 1029 for fraud and related activity; and (4) multiple
offenses involving selling and dealing in controlled substances, in violation of 21
U.S.C. §§ 841 and 846.

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resorted to violence within their territory to cement the gang’s
reputation as a violent criminal organization. For many members of
the 110 Gang, the sale of cocaine, crack cocaine, and heroin was their
primary source of income. In addition, unlike more traditional gangs,
the 110 Gang did not have strict membership requirements or a clear
chain of command. Its members enjoyed protection and status based
on their affiliation with the 110 Gang. To protect their territory from
rival gangs, members of the 110 Gang supplied themselves with
firearms, known as community guns, which circulated among
different gang members. Many of these firearms have been used to
shoot at rival gang members, and, although Wynn was not directly
involved, from 2012 through 2018, members of the 110 Gang
committed at least ten shootings.
Following Wynn’s indictment, the parties negotiated a plea
agreement under which Wynn would plead guilty to the charged
count of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d).

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As a condition of his plea, Wynn admitted that (1) from at least 2012
to October 2018, he was a member of the 110 Gang; (2) over the course
of five separate transactions during the indictment period, he sold a
combined total of 42.2 grams of crack cocaine; (3) as a result of his
membership in the 110 Gang, he was able to possess and distribute
crack cocaine within the 110 Gang territory; and (4) at least some of
the crack cocaine he distributed was supplied to him by other 110
Gang members.
The Probation Office prepared a Presentence Investigation
Report (“PSR”), which calculated Wynn’s advisory sentencing range
under the Guidelines. It began by looking to U.S.S.G § 2E1.1, the
Guideline applicable to racketeering conspiracy. Under § 2E1.1(a)(2),
Wynn’s base offense level was determined by reference to the
underlying racketeering activity attributable to him, which was drug
trafficking. Based on the parties’ stipulation that Wynn was
accountable for at least 28 grams but less than 112 grams of crack

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cocaine, Wynn’s base offense level under U.S.S.G. § 2D1.1(c)(8) was
24. The PSR added a two-level weapons enhancement pursuant to
U.S.S.G. § 2D1.1(b)(1), because it determined that “Wynn was
reasonably aware of the firearms that were carried or used in
furtherance of the gang’s drug trafficking activities and other acts of
intimidation and violence.” PSR ¶ 48. The PSR then reduced the
offense level by three because of Wynn’s acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a) and (b). This yielded a total offense
level of 23.
Wynn made two primary objections to his offense level: (1) he
argued that the two-level firearms enhancement was unwarranted
because he did not personally possess a firearm in connection with
the charged offense, and (2) he argued that he should receive a
mitigating role adjustment under U.S.S.G. § 3B1.2, because “his role
in the offense was either minor (which would result in a two-point

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reduction), or between minor and minimal (which would result in a
three-point reduction).” App’x at 29.
At Wynn’s sentencing on July 27, 2020, the district court
overruled both of Wynn’s objections. It rejected Wynn’s first
argument, concluding that the firearm enhancement was proper
because the record made clear that members of the 110 Gang used
community guns in some of the gang’s operations. The district court
also rejected Wynn’s request for a mitigating role adjustment.
Although Wynn had been incarcerated for a significant period of his
adult life, he had admitted that “he was . . . a long-time member of the
110 gang” and thus the court could not find that he was “less culpable
than anybody else that was involved in this conspiracy.”
Government App’x at 61. The district court adopted the Probation
Office’s calculation of Wynn’s total offense level of 23 and, after
accounting for Wynn’s criminal history category of VI, arrived at the
advisory Guidelines range of 92 to 115 months of imprisonment.

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After considering the relevant sentencing factors, the district court
sentenced Wynn to a bottom-of-the-Guidelines term of 92 months of
imprisonment, followed by a three-year term of supervised release.
Wynn appealed, arguing that the district court erred in
applying the firearms enhancement and in denying him a mitigating
role reduction. This Court affirmed the district court’s application of
the firearms enhancement but concluded that the district court
procedurally erred in denying Wynn a mitigating role adjustment.
Wynn, 37 F.4th at 69. Specifically, this Court explained that in denying
the mitigating role adjustment, the district court analyzed only one of
the factors relevant to such a determination: “the degree to which the
defendant ‘understood the scope and structure of the criminal
activity.’” Id. (quoting U.S.S.G. § 3B1.2 cmt. n.3(C)). Thus, this Court
determined that because (1) the district court did not address any of
the other relevant factors that the Guidelines outlined, and (2) the
record suggested that some of those factors might favor Wynn, the

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district court’s decision to deny Wynn’s mitigating role adjustment
was “unduly perfunctory.” Id. at 68–69. The Court therefore vacated
Wynn’s sentence and remanded for resentencing. Id. at 69.
On remand, all parties agreed that the sole issue before the
district court was whether Wynn was entitled to a mitigating role
adjustment. Wynn argued that the government failed to demonstrate
that he (1) participated in the planning of the 110 Gang’s activity; (2)
exercised decision-making authority for the gang; or (3) stood to
benefit from the criminal activity. Wynn contended that his conduct
was “minimal” (meriting a four-level downward adjustment) or at
least “between a minimal and minor level” (meriting a three-level
downward adjustment). App’x at 42-43.2 The government argued
2 As explained above, Wynn’s Guidelines range for the racketeering
conspiracy was calculated through a cross-reference to § 2D1.1, so that his offense
level was based on the quantity of crack cocaine he had personally sold in five
particular transactions, plus a two-level enhancement for the 110 Gang’s use of
shared firearms. Had Wynn succeeded in receiving a three- or four-level
mitigating role adjustment, he would have been in the peculiar position of
receiving a lower Guidelines range than if he had simply sold those drugs on his
own, rather than as part of a larger racketeering enterprise.

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that Wynn failed to establish his entitlement to any mitigating role
adjustment, because he admitted to being a long-time member of the
110 Gang and was conscious of the scope of the gang’s criminal
conduct. The government further argued that Wynn’s prior criminal
history and his decision-making authority in connection with the 110
Gang’s drug trafficking demonstrated that his involvement in the
criminal enterprise was typical with respect to the other co-
conspirators. In a revised PSR, the Probation Office recommended
that a mitigating role adjustment not be granted for the reasons stated
by the government.
At resentencing on October 4, 2022, the district court again
concluded that Wynn was not entitled to any mitigating role
adjustment. The court began by observing that it was “intimately
familiar with the facts of this case, along with the roles of [the co-
conspirators], after having presided over a two-week jury trial,
during which the government presented evidence from 48 witnesses

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and introduced dozens of exhibits.” App’x at 78. The court explained
that, based on its thorough knowledge of the case, it was “in the best
position to determine what, if any, role adjustments may apply.” Id.
It then explained why Wynn had not met his burden of establishing
his entitlement to a mitigating role adjustment:
. . . . Specifically, the defendant Wynn was one of
the longer serving members of the 110 gang who, by his
own admissions, understood very well the gang’s illegal
conduct, including the drug dealing and acts of violence.
He has been involved in at least two gang-related
shootings, although not specifically charged as part of
the instant offense. The 110 gang did not have a
hierarchical chain of command and the acts committed
in furtherance of the gang had little or no coordination or
planning. In this respect, the degree to which the
defendant participated in . . . planning or organizing the
criminal activity or exercising . . . situational authority is
very typical of the average participant in the offense, and
therefore is not indicative of a mitigating role.
Wynn did, however, make decisions and exercise
autonomy over his drug trafficking activities. While it is
true that Wynn did not personally engage in the acts of
violence as charged in this case, he was substantially
involved in the gang’s drug trafficking activities. That is
evidenced by his frequent and regular drug trafficking,
which went well beyond the five street level deals

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identified in the defendant’s plea agreement. In this
respect, Wynn’s role in the offense was typical when
compared to the average participant.
Wynn was incarcerated from 2011 through May
2016. Within months of being released from prison, he
started selling drugs for the gang and began posting to
social media photos of himself and other 110 gang
members, which indicates Wynn did not intentionally
disassociate with the gang; rather, his imprisonment
temporarily halted his gang-related activities.
And lastly, Wynn, by his own admission, stood to
benefit from and did in fact benefit from the gang’s
regular dealing and involvement in criminal activity
which was used to facilitate the drug sales within the
gang’s territory.
App’x at 78-80. The district court found that the Guidelines range
remained unchanged from the first sentencing (92 to 115 months) and
reimposed a term of 92 months of imprisonment. This appeal
followed.
II. Discussion
Wynn challenges the district court’s denial of his request for a
mitigating role adjustment pursuant to U.S.S.G. § 3B1.2 and argues
that his 92-month sentence is substantively unreasonable because it

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fails to differentiate him from his co-defendants, who arguably
engaged in more serious conduct. For the reasons set forth below, we
are unpersuaded.
A. Mitigating Role Adjustment
Wynn argues that the district court erred in denying him a
minor role adjustment pursuant to U.S.S.G. § 3B1.2 because he had a
“limited role in the 110 Gang’s criminal enterprise.” Appellant’s Br.
at 4. Section 3B1.2 of the Guidelines provides that a defendant’s
offense level should be decreased as follows:
(a) If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
U.S.S.G. § 3B1.2.3
3 Wynn’s request for a mitigating role enhancement has varied over time.
At his original sentencing, he sought a two- or three-level reduction on the ground
that his role was either minor, or between minor and minimal. On remand, he
argued for either a three- or four-level reduction on the theory that his role was
either minimal, or at most between minor and minimal. In his brief to this Court,
Wynn consistently discusses a minor role reduction, without quantifying the

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Because a mitigating role adjustment under § 3B1.2 has the effect of
reducing the defendant’s otherwise-applicable Guidelines range, it is
the defendant who bears the burden of establishing his entitlement to
that reduction by a preponderance of the evidence. See United States
v. Carpenter, 252 F.3d 230, 234 (2d Cir. 2001) (citing United States v.
Castaño, 234 F.3d 111, 113 (2d Cir. 2000)).
“Whether a defendant qualifies as a minor participant is a
“‘highly fact-specific’ inquiry,” and so “we will disturb the district
court’s assessment only for clear error.” United States v. Esteras, 102
F.4th 98, 107 (2d Cir. 2024) (quoting United States v. Shonubi, 998 F.2d
84, 90 (2d Cir. 1993)).4 The district court’s determination “depends
requested adjustment. We need not determine whether Wynn is now asking only
for a two-level reduction under § 3B1.2(a), or whether his argument is simply
shorthand for any adjustment under § 3B1.2. Whatever the case, we conclude that
the district court properly held that no mitigating role adjustment was
appropriate.
4 In the past, we have noted that our precedents do not uniformly describe
the standard of review that applies to a district court’s “ultimate decision” about
whether to apply a mitigating role reduction. See United States v. Labbe, 588 F.3d
139, 145 n.2 (2d Cir. 2009) (citing cases where we have variously described the

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upon the nature of the defendant’s relationship to other participants,
the importance of the defendant’s actions to the success of the
venture, and the defendant’s awareness of the nature and scope of the
criminal enterprise.” Shonubi, 998 F.2d at 90 (internal quotation marks
omitted). The commentary to the Guidelines explains that the
application of the mitigating role adjustment is “based on the totality
of the circumstances”:
In determining whether to apply subsection (a) or (b), or
an intermediate adjustment, the court should consider
the following non-exhaustive list of factors:
issue as a “fact-sensitive question” reviewed for “abuse of discretion,” United
States v. Salameh, 261 F.3d 271, 280 (2d Cir. 2001); as a “finding” reviewed for “clear
error,” Castaño, 234 F.3d at 113; or as a “legal conclusion as to whether the
circumstances constitute ‘minimal’ or ‘minor’ participation” that we review “de
novo,” United States v. Gaston, 68 F.3d 1466, 1468 (2d Cir. 1995)). And we have
elsewhere indicated that we review “mixed questions of law and fact either de novo
or under the clearly erroneous standard depending on whether the question is
predominantly legal or factual.” Labbe, 588 F.3d 145 n.2 (quoting United States v.
Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005). Because we view Wynn’s challenges as
going principally to the district court’s underlying factual findings regarding the
Guidelines’ mitigating role adjustment factors, we regard the deferential “clear
error” standard as most appropriate here. See United States v. Gotti, 459 F.3d 296,
349 (2d Cir. 2006) (applying the clear error standard of review “because the district
court's application of U.S.S.G. § 3B1.1 to the facts of this case presents an issue that
is predominantly factual rather than legal”). But even reviewed de novo, we would
discern no error in the district court’s determination.

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(i) the degree to which the defendant understood the
scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in
planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the
exercise of decision-making authority;
(iv) the nature and extent of the defendant’s
participation in the commission of the criminal
activity, including the acts the defendant
performed and the responsibility and discretion
the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit
from the criminal activity.
U.S.S.G. § 3B1.2 cmt. n.3(C). Thus, as this Court has previously noted,
when a defendant is sentenced for a racketeering conviction, “his role
adjustment is to be made on the basis of [his] role in the overall RICO
enterprise.” Wynn, 37 F.4th at 68 (alteration in original) (quoting
United States v. Ivezaj, 568 F.3d 88, 99 (2d Cir. 2009)).
At the outset, Wynn argues that the district court on remand
failed to adhere to this Court’s mandate when it conducted a de novo

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evaluation of the relevant factors and determined that these factors
did not weigh in favor of a downward adjustment. According to
Wynn, our prior decision definitively held that these factors weighed
in favor of a mitigating role reduction, and the district court on
remand was limited to assessing how much weight to give them. We
disagree.
The mandate rule “forecloses relitigation of issues expressly or
impliedly decided by the appellate court.” United States v. Ben Zvi,
242 F.3d 89, 95 (2d Cir. 2001) (emphasis and internal quotation marks
omitted). In Wynn’s previous appeal, this Court did not conclusively
determine that any factors weighed in favor of a role adjustment.
Rather, our decision held only that “the district [court’s] cursory
denial d[id] not sufficiently substantiate [its] decision,” and
remanded for the district court to “explain enough about the sentence
for a reviewing court both to understand it and to assure itself that
the [district court] considered the principles enunciated in federal

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statutes and the Guidelines.” Wynn, 37 F.4th at 68 (internal quotation
marks omitted). In so concluding, we indicated that Wynn had
“presented a strong argument for a mitigating role adjustment” and
that “the record suggests that other, seemingly unconsidered,
mitigating role factors favor Wynn.” Id. (emphasis added). But our
“suggest[ion]” was just that, and we commented only on the strength
of Wynn’s argument, without adopting it. Understandably, we chose
to hear first from the district court, to whose factual findings we owe
deference, before definitively assessing whether the defendant
satisfied his burden of proof with respect to the downward
adjustment. Accordingly, our mandate allowed—indeed,
compelled—the district court at resentencing to make and explain its
own independent findings about whether the relevant factors
supported granting Wynn a mitigating role adjustment. The district
court fully complied with that mandate.

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We also conclude that the district court did not clearly err by
finding that Wynn failed to meet his burden of establishing that his
role in the RICO conspiracy was minor or minimal because he was
not substantially less culpable than the average participant in the 110
Gang. We address each of the factors set forth in U.S.S.G. § 3B1.2, cmt.
n.3(C).
First, in assessing Wynn’s understanding of the scope and
structure of the 110 Gang, Wynn points out that he admitted making
only five small street-level drug sales and that he was incarcerated for
a substantial portion of the charged conspiracy. He further contends
that the “structure [of] the 110 Gang . . . was outside his knowledge
base,” and that he was “more akin to an independent contractor.”
Appellant’s Br. at 13. But “[a] sentencing court is not bound to accept
[a] defendant’s self-serving characterizations of his role in an
offense.” Shonubi, 998 F.2d at 90. In his plea agreement, Wynn
admitted that he was a member of the 110 Gang for a lengthy period—

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from “at least 2012 to October 2018”—and that the “110 Gang
members have established, in effect, an exclusive territory within
which only they can distribute cocaine base . . . , heroin, and
occasionally, other drugs.” Government App’x at 4–5. Wynn also
admitted that “[b]y virtue of his membership in the 110 Gang, [he]
was able to possess and distribute the crack cocaine at various
locations in and around the 110 Gang territory.” Id. at 6. Further, the
district court adopted the factual findings of the PSR, which included
the fact that Wynn had been directly involved in two gang-related
shootings when he was 18 years old. 5 And even though these two
5 In our previous opinion, we noted that the government argued that Wynn
was “one of the most senior members” of the 110 Gang, but that its claim had not
been previously raised before the district court and did not seem to have any basis
in the record. Wynn, 37 F.4th at 69 n.1. On remand, the government directed the
district court’s attention to portions of the PSR that describe in detail two shootings
by Wynn in 1995, when he was 18 years old. In the first episode, while in the 110
Gang’s territory, he shot at a target but instead hit a bystander, who was taken to
the hospital. Less than three months later, while with Deshawnte Waller (a fellow
110 Gang member, who is a co-defendant in the present racketeering conspiracy
case), Wynn took part in a gunfight outside a Syracuse high school. For these
events, Wynn was convicted of second-degree assault and third-degree criminal
possession of a loaded firearm, both felonies under New York law. Given the
location of the first shooting within 110 Gang territory, and Wynn’s actions in

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shootings predate the period charged in the indictment, they still
illustrate how long Wynn has been an active member of the 110 Gang,
and therefore how extensive his knowledge of the gang’s criminal
activities was. Thus, despite Wynn’s period of incarceration during
much of the charged conspiracy, the district court did not clearly err
in concluding that Wynn was “one of the longer serving members of
the 110 gang who, by his own admissions, understood very well the
gang’s illegal conduct, including the drug dealing and acts of
violence,” App’x at 78.
In determining the extent to which Wynn participated in
organizing the criminal activity and exercising decision-making
authority, which are the second and third factors outlined in the
Guidelines commentary, the district court also did not clearly err in
determining that the record does not support the downward role
concert with a convicted 110 Gang member in the second shooting, the district
court had an ample factual basis for its finding that Wynn was a longstanding
member of the gang.

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adjustment. Wynn is correct that there is no evidence that, outside of
his own drug dealing, he organized any criminal activity or held
decision-making authority over the racketeering enterprise. As the
district court crucially observed after our remand, however, this was
not atypical for a member of this particular gang. The 110 Gang did
not have a traditional, hierarchical power structure, and “the acts
committed in furtherance of the gang had little or no coordination or
planning.” Id. at 78-79. The degree to which Wynn participated in the
planning of the criminal activity is therefore not indicative of his
relative role in this criminal enterprise, which is the critical question
for a mitigating role reduction. See Alston, 899 F.3d at 150 (“[T]he
applicability of a ‘minor role’ reduction depends on the nature of the
defendant’s role in comparison to that of his co-participants in his
criminal activity.”). Wynn fails to direct our attention to anything in
the record demonstrating by a preponderance of the evidence that,
contrary to the district court’s finding, the activities of the 110 Gang

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were generally undertaken pursuant to coordinated planning or
hierarchical decision-making. Absent such evidence, on a point
where the defendant bears the burden of proof, we cannot say that
the district court erred. Additionally, Wynn participated in a number
of controlled drug purchases in which he sold drugs directly to a
cooperating source, indicating that he had personal authority to set
up the terms and arrangements of these deals.
The fourth factor identified in the Guidelines commentary—the
nature and extent of the defendant’s participation in the commission
of the criminal activity—also does not support the mitigating role
adjustment. The record suggests that Wynn’s role in the criminal
enterprise was typical of many of the charged defendants. Several of
Wynn’s co-conspirators did not participate in the charged acts of
violence and were involved in the acts of the conspiracy only with
respect to drug dealing and/or use of counterfeit credit cards. Like
those co-conspirators, although Wynn was not a perpetrator of the

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charged acts of violence that were committed by the 110 Gang, he was
meaningfully involved in its drug-trafficking activity. As noted
earlier, in his plea agreement he acknowledged participating in five
drug transactions, and at least some of the crack cocaine in those sales
was supplied by other 110 Gang members. The district court
concluded that Wynn’s “frequent and regular drug
trafficking . . . went well beyond the five street level deals identified
in the defendant’s plea agreement.” App’x at 79. This finding was
not clearly erroneous. The PSR identified eight additional controlled
purchases from Wynn from September 2017 to February 2018
involving 25.7 grams of crack cocaine and a quantity of heroin.6 And
6 Wynn now disputes his participation in these controlled buys but, at his
original sentencing, he did not object to the factual statements concerning these
drug transactions in the PSR. Wynn also did not object to these facts in his first
appeal. The district court, in turn, adopted the factual findings in the PSR. “If a
defendant failed to raise a claimed sentencing error below, . . . we review for plain
error.” United States v. Hunt, 82 F.4th 129, 142 (2d Cir. 2023). To establish plain
error, an appellant must show that “(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. Chaires, 88

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it is entirely sensible for a sentencing court to infer that a defendant
with a proven track record of selling drugs over a period of time to a
cooperating source has been making additional sales to other
customers. Moreover, although Wynn spent much of the period of
the charged conspiracy in prison, he began posting photos of himself
on social media with other 110 Gang members within months of his
release, and began selling drugs again shortly after his release. The
district court thus did not clearly err in finding that “Wynn did not
intentionally disassociate with the gang; rather, his imprisonment
temporarily halted his gang-related activities,” App’x at 79. Indeed,
his ability to quickly resume drug dealing in a territory closely
controlled by the 110 Gang reinforces the district court’s conclusion
F.4th 172, 177 (2d Cir. 2023) (quoting United States v. Miller, 954 F.3d 551, 557–58
(2d Cir. 2020)). We find no such error in this case. Wynn also points out that the
eight additional controlled purchases occurred outside 110 Gang territory. This,
however, does not necessarily indicate that the controlled purchases fell outside
the scope of the charged conspiracy. Wynn admitted that “[b]y virtue of his
membership in the 110 Gang, [he] was able to possess and distribute the crack
cocaine at various locations in and around the 110 Gang territory.” Government
App’x at 6 (emphasis added).

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that his ties to that organization and its criminal activities remained
strong.
In addressing the final factor—the degree to which the
defendant benefited from the criminal enterprise—Wynn argues that
he received only a minor financial benefit of $2,500 from his
participation in the 110 Gang’s drug sales. But Wynn admitted that
he was able to sell drugs in the 110 Gang’s territory due to his
membership in the enterprise, because the group’s violent acts helped
establish exclusive territory, “within which only [110 Gang members]
can distribute [drugs].” Government App’x at 4. In addition, as the
government points out, the record indicates that Wynn was likely
financially supporting himself primarily through his drug trafficking
activity because his only employment history was when he worked
for $9 per hour at a dollar store from September 2016 to February
2017, and he reported no assets or other sources of income. We
therefore find the district court did not commit clear error in

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determining that Wynn benefited significantly from the 110 Gang’s
overall success.
In sum, the district court did not clearly err by concluding
(1) that Wynn did not bear his burden of establishing, by a
preponderance of the evidence, that he played a minor or minimal
role in the 110 Gang’s criminal enterprise, see App’x at 78–80, and
(2) that he was not substantially less culpable than other participants
in the 110 Gang.
B. Substantive Reasonableness
Wynn also argues that his 92-month sentence is substantively
unreasonable for the same reasons that he articulated in arguing that
a downward adjustment is appropriate, and because his sentence fails
to distinguish him from his co-defendants, who he contends
participated in more serious conduct. “[W]hen conducting
substantive review, we take into account the totality of the
circumstances, giving due deference to the sentencing judge’s
exercise of discretion, and bearing in mind the institutional

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advantages of district courts.” United States v. Cavera, 550 F.3d 180,
190 (2d Cir. 2008) (en banc) (citing Rita v. United States, 551 U.S. 338,
354–55 (2007)). As a result,
[w]e will vacate a sentence as substantively unreasonable
“only in exceptional cases where the trial court’s decision
cannot be located within the range of permissible
decisions, that is, when sentences are so shockingly high,
shockingly low, or otherwise unsupportable as a matter
of law that allowing them to stand would damage the
administration of justice.”
United States v. Ortiz, 100 F.4th 112, 122 (2d Cir. 2024) (quoting United
States v. Aldeen, 792 F.3d 247, 255 (2d Cir. 2015)). We see no reason to
vacate the district court’s sentence here.
At the outset, this Court has made clear that “[t]he law does not
require a district court to ‘consider or explain sentencing disparities
among codefendants.’” United States v. Barrett, 102 F.4th 60, 97 (2d Cir.
2024) (quoting United States v. Alcius, 952 F.3d 83, 89 (2d Cir. 2020)).
In any event, Wynn’s 92-month sentence was at the bottom of the
applicable Guidelines range, and his sentence was not an outlier
among those of his co-conspirators, many of whom received longer

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sentences.7 Wynn also overlooks the fact that in addition to being a
participant in a dangerous criminal enterprise, he committed
numerous serious disciplinary infractions while in prison (including
some involving violent and sexual conduct) and repeatedly violated
the terms of his parole. Additionally, throughout his adulthood, and
despite lengthy incarceration, Wynn has shown himself unwilling to
disassociate from the violent 110 Gang. Therefore, based on the
record before us, we cannot say that the district court imposed a
substantively unreasonable sentence.
III. Conclusion
In sum, we hold as follows:
1. The district court did not clearly err in declining to apply a
mitigating role adjustment under U.S.S.G. § 3B1.2 because
7 Anthony Hopper received a sentence of 385 months; Jamar Long received
a sentence of 210 months; and Kinsey received a sentence of 136 months. See
United States v. Dowdell, et al., NDNY Case No. 18-cr-353, Dkt. Nos. 420, 455.

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Wynn failed to establish that he was substantially less
culpable than his co-conspirators.
2. Wynn’s 92-month sentence of incarceration, the bottom of
his advisory Guidelines range, is not substantively
unreasonable based on his criminal conduct and history.
Accordingly, we AFFIRM the judgment of the district court.

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