13-799-cr
USA v. Dodge
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 10th day of January, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 DENNY CHIN,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-799-cr
16
17 KEVIN DODGE,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: E.M. ALLEN, Stetler, Allen &
22 Kampmann, Burlington, Vermont.
23
24 FOR APPELLEES: CRAIG S. NOLAN, Assistant United
25 States Attorney (Gregory L.
26 Waples, Assistant United States
27 Attorney, on the brief), for
28 Tristram J. Coffin, United
29 States Attorney for the District
30 of Vermont, Burlington, Vermont.
1
1 Appeal from a sentence of the United States District
2 Court for the District of Vermont (Sessions, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Appellant Kevin Dodge appeals from a judgment of
9 conviction entered on February 25, 2013, following his
10 guilty plea to conspiracy to manufacture methamphetamine, in
11 violation of 21 U.S.C. §§ 846, 841(a)(1). We assume the
12 parties’ familiarity with the underlying facts, the
13 procedural history, and the issues presented for review.
14
15 Dodge requested a non-Guidelines sentence of time
16 served (followed by a short period of supervised release),
17 on the theory that his (lengthy) criminal history and his
18 (sustained) involvement in the charged conspiracy were
19 driven by his addiction to opiates and methamphetamine, and
20 that, since his arrest, he had recovered from addiction and
21 performed commendable community work. Dodge contended that
22 no further prison time was necessary to serve the goals of
23 the sentencing process.
24
25 The District Court concluded that the seriousness of
26 the offense warranted a significant prison term, but
27 expressly took into account Dodge’s progress toward
28 rehabilitation. Accordingly, the District Court granted
29 Dodge’s motions for horizontal and downward departures,
30 resulting in a reduction of the Sentencing Guidelines range
31 from 57-71 to 33-41 months. It then sentenced Dodge to 33
32 months’ imprisonment, to be followed by a three year term of
33 supervised release.
34
35 Dodge now appeals on the grounds that his sentence is
36 procedurally and substantively unreasonable.
37
38 We review criminal sentences for reasonableness. This
39 is a deferential standard of review. See Gall v. United
40 States, 552 U.S. 38, 51 (2007) (“The fact that the appellate
41 court might reasonably have concluded that a different
42 sentence was appropriate is insufficient to justify reversal
43 of the district court.”). “Reasonableness review requires
44 an examination of the length of the sentence (substantive
2
1 reasonableness) as well as the procedure employed in
2 arriving at the sentence (procedural reasonableness).”
3 United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
4 The standard of review for both inquiries is abuse of
5 discretion. United States v. Verkhoglyad, 516 F.3d 122, 127
6 (2d Cir. 2008).
7
8 A. Procedural Challenge.
9
10 “A district court commits procedural error where it
11 fails to calculate (or improperly calculates) the Sentencing
12 Guidelines range, treats the Sentencing Guidelines as
13 mandatory, fails to consider the [18 U.S.C.] § 3553(a)
14 factors, selects a sentence based on clearly erroneous
15 facts, or fails adequately to explain the chosen sentence.”
16 United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)
17 (citing Gall, 552 U.S. at 51).
18
19 Dodge first argues that his sentence is procedurally
20 unreasonable because the District Court treated the
21 Sentencing Guidelines as mandatory. At sentencing, defense
22 counsel argued that the length of time Dodge participated in
23 the conspiracy should not be considered an aggravating
24 factor, driven as it was by his addiction to
25 methamphetamine. In response, the District Court emphasized
26 that defense counsel’s argument was contrary to the policy
27 adopted by the Sentencing Guidelines that “the longer a
28 person is involved in a conspiracy, the more drugs they
29 actually participate in distributing . . . , the higher the
30 penalty.” Tr. of Sentencing at 32, Feb. 25, 2013.
31
32 Beyond this (accurate) statement of the law, there is
33 no indication that the District Court considered the
34 Guidelines to be mandatory. The District Court simply did
35 not accept that Dodge’s addiction should absolve him of
36 culpability for his sustained and substantial involvement in
37 the conspiracy. It is nonetheless clear from the record
38 that the court took seriously the impact of Dodge’s
39 addiction on his involvement and overall guilt. See id. at
40 32-35 (noting that although Dodge was “clearly aware of the
41 full extent of the operation[,]” which involved the
42 manufacture of “the worst or close to the worst drug that
43 exists,” Dodge’s “severe addict[ion]” and “miraculous”
44 rehabilitation warranted a downward “depart[ure] to a
3
1 significant sentence but one that would get him into
2 extended drug treatment and allow him the opportunity of
3 gradually reducing his sentence by continuing to do well in
4 treatment”).
5
6 Dodge also contends that the District Court engaged in
7 impermissible multiple-counting in the § 3553(a) analysis.
8 Specifically, Dodge claims that the District Court “counted
9 as separate factors the various ways in which it concluded
10 that [] Dodge was more involved in the conspiracy than most
11 others.” Appellant’s Br. 11.
12
13 “Impermissible double counting occurs when one part of
14 the [G]uidelines is applied to increase a defendant’s
15 sentence to reflect the kind of harm that has already been
16 fully accounted for by another part of the [G]uidelines.”
17 United States v. Volpe, 224 F.3d 72, 76 (2d Cir. 2000)
18 (internal quotation marks omitted). It does not limit the
19 weighing of § 3553(a) factors. The District Court
20 considered various distinct facts, including Dodge’s
21 addiction, to assess the overall level of Dodge’s
22 involvement in the conspiracy, and then weighed that
23 involvement against applicable mitigating factors. And
24 after doing so, the Court granted horizontal and downward
25 departures and selected the very bottom end of the
26 (adjusted) Guidelines range. Dodge has failed to point to
27 any procedural error, much less abuse of discretion, by the
28 District Court at sentencing.
29
30 B. Substantive Challenge.
31
32 “In reviewing [a sentence] for substantive
33 reasonableness, we consider the totality of the
34 circumstances, and reverse only in exceptional cases where
35 the trial court’s decision cannot be located within the
36 range of permissible decisions[.]” United States v. Mason,
37 692 F.3d 178, 181 (2d Cir. 2012) (internal quotation marks
38 and citation omitted). The standard “provide[s] a backstop
39 for those few cases that, although procedurally correct,
40 would nonetheless damage the administration of justice
41 because the sentence imposed was shockingly high, shockingly
42 low, or otherwise unsupportable as a matter of law.” United
43 States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). “[W]hen
44 conducting substantive review, we [are careful to give] due
4
1 deference to the sentencing judge’s exercise of discretion,
2 [] bearing in mind the institutional advantages of district
3 courts.” United States v. Cavera, 550 F.3d 180, 190 (2d
4 Cir. 2008).
5
6 Dodge argues that his sentence is substantively
7 unreasonable because it “punishes untreated addiction in the
8 same manner that it would punish predatory greed.”
9 Appellant’s Br. 7. The record clearly is altogether
10 contrary. The District Court recognized that addiction
11 fueled much of Dodge’s extensive criminal history and his
12 involvement in the charged conspiracy. See Tr. of
13 Sentencing at 33, 35. Dodge’s “extraordinary
14 rehabilitation” from his “severe addict[ion]” inclined the
15 District Court to grant Dodge’s motions for horizontal and
16 vertical departures, resulting in a reduction of the
17 Guidelines sentencing range from 57-71 to 33-41 months.1
18 Id. at 33-35.
19
20 Dodge’s 33-month sentence is undoubtedly significant,
21 but it is at the bottom of a Guidelines range arrived at
22 after significant horizontal and downward departures for
23 acceptance of responsibility and overrepresentation of
24 criminal history. Id. at 35. Although there is no
25 presumption that a sentence within the Guidelines range is
26 reasonable, we have recognized “that in the overwhelming
27 majority of cases, a Guidelines sentence will fall
28 comfortably within the broad range of sentences that would
29 be reasonable in the particular circumstances.” United
30 States v. Fernandez, 443 F.3d 19, 27 (2006). Based on our
31 review of the record, and taking into account Dodge’s
32 lengthy criminal history and his substantial involvement in
33 a conspiracy to produce and distribute an extremely
34 addictive and dangerous drug, we cannot conclude that the
35 District Court’s 33-month sentence is substantively
36 unreasonable.
1
The District Court also emphasized “the lack of
violence in [Dodge’s] criminal record” and “recommend[ed]
that [Dodge] be placed at Fort Dix, which has a 500-hour
program[.]” Tr. of Sentencing at 37. The 500-hour program
is “a program of residential substance abuse treatment”
that, if successfully completed, qualifies Dodge for a
sentence reduction of up to 12 months. 18 U.S.C. § 3621(e).
5
1 For the foregoing reasons, and finding no merit in
2 Dodge’s other arguments, we hereby AFFIRM the judgment of
3 the District Court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
6