08-6292-cr
United States v. Most
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY O RDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8 th day of June, two thousand ten.
PRESENT: JOSE A. CABRANES,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
Appellee,
v. No. 08-6292-cr
KARL A. MOST,
Defendant-Appellant.
-----------------------------------------------------------------------
FOR APPELLANT: Stuart J. Grossman, Grossman & Rinaldo, Forest
Hills, New York.
FOR APPELLEE: Benton J. Campbell, United States Attorney for
the Eastern District of New York (Elizabeth J.
Kramer, Jack Dennehy, Assistant United States
Attorneys, of counsel), Brooklyn, New York.
Appeal from the United States District Court for the Eastern District of New York
(Sandra L. Townes, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on December 23, 2008, is
AFFIRMED.
Karl Most challenges the reasonableness of a 60-month term of incarceration imposed
for violation of the supervised release component of his Southern District of California
sentence for possession of methamphetamine with intent to distribute. Specifically, Most
contends that 60 months’ incarceration is unreasonable in light of the violation to which he
pleaded guilty: traveling to New York without permission. In assessing a reasonableness
challenge, we do not “substitut[e] . . . our judgment for that of the sentencing judge. Rather,
the standard is akin to review for abuse of discretion.” United States v. Fernandez, 443 F.3d
19, 27 (2d Cir. 2006); see Gall v. United States, 552 U.S. 38, 51 (2007). In applying these
principles to this appeal, we assume the parties’ familiarity with the facts and the record of
prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Reasonableness
a. Procedural Reasonableness
The record demonstrates that prior to imposing the challenged sentence, the district
court afforded counsel and defendant an opportunity to be heard. Thus, any claim that the
court precluded defendant from speaking on the record in violation of Fed. R. Crim. P. 32
lacks support. The court also properly identified the applicable Guidelines range as seven
to thirteen months’ imprisonment. In determining that sixty months’ imprisonment – the
2
statutory maximum – was the proper sentence, the court noted Most’s long history of
supervised release violations, his criminal history category of V, and the significant
downward departure he received in the underlying criminal case. These factors adequately
explain the court’s conclusion that Most had “shown, once again, . . . that [he would] not
obey the conditions of supervised release,” and that he therefore “must be incapacitated for
as long as possible.” Sent’g Tr. at 26; see Gall v. United States, 552 U.S. at 50 (noting that
“a major departure [from the recommended Guidelines sentence] should be supported by a
more significant justification than a minor one”).
As we have observed on numerous occasions, no “specific verbal formulations,”
United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005), or “robotic incantations,” United
States v. Fernandez, 443 F.3d at 30 (internal quotation marks omitted), are required to
demonstrate a district court’s adequate consideration of the statutory factors relevant to
sentencing. Here, the able and experienced district judge discussed not only the nature of
Most’s violation – which involved the commission of another drug crime on his trip to New
York – and his personal characteristics and history, but also the need to deter and protect the
public from repeated supervised release violations that involved criminal activity. On this
record, we easily conclude that the judge adequately considered the § 3553(a) factors. See
United States v. Verkhoglyad, 516 F.3d 122, 132-34 (2d Cir. 2008) (citing defendant’s
repeated violations of law after receipt of lenient sentences in explaining decision to impose
57-month sentence for violation of probation).
3
We therefore reject Most’s claim of procedural unreasonableness as without merit.
b. Substantive Reasonableness
We similarly reject Most’s claim of substantive unreasonableness. In light of Most’s
extensive criminal history, repeated violations of supervised release, intent to lie to his
probation officer to procure permission to travel, and receipt of a significant downward
departure in his underlying criminal case, we conclude that a 60-month sentence fell within
the broad discretion of the district court. See United States v. Cavera, 550 F.3d 180, 189 (2d
Cir. 2008) (noting that sentence is substantively unreasonable only where it “cannot be
located within the range of permissible decisions” (internal quotation marks omitted)); accord
United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).
2. Conclusion
We have considered Most’s remaining arguments, including those submitted in his
pro se supplemental briefs, and conclude that they lack merit. Accordingly, the December
23, 2008 judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
4