12-1820-cr
United States v. Henry
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
ASUMMARY 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 October, two thousand thirteen.
PRESENT: REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v.
No. 12-1820-cr
RASHEEM HENRY,
Defendant-Appellant.
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FOR APPELLANT: Michele Hauser, Esq., New York, New York.
FOR APPELLEE: David C. James, Daniel S. Silver, Assistant
United States Attorneys, for Loretta E. Lynch,
United States Attorney for the Eastern District of
New York, Brooklyn, New York.
* Judge John F. Keenan, of the United States District Court for the Southern District of New
York, sitting by designation.
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Appeal from an order of the United States District Court for the Eastern District of
New York (Eric N. Vitaliano, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on April 25, 2012, is AFFIRMED.
Rasheem Henry was convicted in 2007 of being a felon in possession of a firearm, see
18 U.S.C. § 922(g)(1), a crime he committed while on parole for his underlying New York
State robbery conviction. Sentenced to 37 months’ incarceration and three years’
supervised release on the § 922(g) conviction, Henry now appeals the 12-month prison
sentence imposed on his guilty plea to violating supervision by unlawfully possessing a
controlled substance. See 18 U.S.C. § 3583(e)(3), (h). Henry contends that the sentence,
one month above the top of his five-to-eleven month advisory Guidelines range, was
substantively unreasonable. We assume the parties’ familiarity with the underlying facts
and the record of prior proceedings, which we reference only as necessary to explain our
decision to affirm.
Where, as in this case, a defendant identifies no procedural error in sentencing, we
accord considerable deference to a district court’s choice of sentence, mindful that a range of
sentences, not limited to the Guidelines range, can be reasonable in a given case. See
United States v. Jones, 531 F.3d 163, 178 (2d Cir. 2008). We will identify a sentence as
substantively unreasonable only if it falls outside that broad range. See United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). That is not this case.
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Even if, as Henry contends, his supervision violation, i.e., the possession of seven
small bags of marijuana, were not to be viewed as egregious conduct in the abstract, the
district court was entitled to consider it as such—at least to the extent of a one-month
variance from the Guidelines range—given Henry’s possession of the marijuana in the
Probation Office when reporting for supervision. Such action indicates a bold disregard
both for the law and for the supervision intended to assist Henry in living a law-abiding life.
Further, after arraignment on the violation, Henry missed several Probation reporting
appointments and court appearances, and was a fugitive for approximately a year. Even
without regard to Henry’s arrests during this time for relatively minor infractions of state
law, these circumstances preclude us from concluding that a 12-month sentence was outside
the range of reasonableness in this case. See United States v. Cavera, 550 F.3d at 189.
United States v. Sindima, 488 F.3d 817 (2d Cir. 2007), on which Henry relies is not to
the contrary. The district court here adequately explained its sentence. See United States
v. Verkhoglyad, 516 F.3d 122, 136 (2d Cir. 2008) (stating that explanation required by
Sindima for non-Guidelines sentence need not be “extensive or detailed”). Moreover, the
record confirms the district court’s consideration of the mitigating factors that Henry
emphasizes on appeal. Thus, we conclude that Henry’s reasonableness challenge to his
sentence is meritless.
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We have considered Henry’s remaining arguments on appeal and conclude that they
are without merit. Accordingly, the order of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
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