United States v. Hodge

13-399-cr
United States v. Hodge

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 TO 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 17th
day of March, two thousand fourteen.

PRESENT: PIERRE N. LEVAL,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.

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UNITED STATES OF AMERICA,
Appellee,

-v-

CH'KHAN HODGE, a.k.a. Shock Rock,
Defendant-Appellant,

and 13-399-cr

CARLOS MARTE SANTOS, a.k.a. Shorty, a.k.a.
Julio Cesar Santos, a.k.a. Cesar, RICHARD
CASTRO, a.k.a. Tyson, SANDLEY ALEXIS,
RONALD BALLARD, CLIVE DAVIS, a.k.a. Link,
a.k.a. Little B, ANDRE MALCOLM, a.k.a. Dre,
JAMES MCCOY, GLEN THOMAS, a.k.a. G,
Defendants.*

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*
The Clerk of the Court is directed to amend the official caption as
noted above.
FOR APPELLEE: Sandra S. Glover and Jonathan
Freimann, Assistant United States
Attorneys, for Deirdre M. Daly,
Acting United States Attorney for
the District of Connecticut,
New Haven, Connecticut.

FOR DEFENDANT-APPELLANT: Charles F. Willson, Nevins Law
Group LLC, East Hartford,
Connecticut.

Appeal from the United States District Court for the

District of Connecticut (Burns, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-appellant Ch'khan Hodge appeals from the

judgment of the district court entered January 18, 2013, sentencing

him to 46 months' imprisonment and a five-year term of supervised

release.

We assume the parties' familiarity with the facts and

procedural history of the case, which we summarize as follows:

On February 9, 2010, Hodge pled guilty to possession of

five grams or more of cocaine base with the intent to distribute in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).

On December 8, 2010, the district court (Droney, J.)

imposed a mandatory minimum sentence of 60 months' imprisonment and

four years of supervised release, concluding that the Fair

Sentencing Act of 2010 (the "FSA"), Pub. L. No. 111–220, 124 Stat.

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2372, which reduced the quantities for triggering certain mandatory

minimums in crack cocaine cases, did not apply retroactively.

On December 21, 2010, Hodge appealed his sentence. On

December 5, 2011, this Court held Hodge's appeal in abeyance pending

the Supreme Court's decision in Dorsey v. United States on the issue

of the retroactive effect of the FSA. United States v. Hodge,

U.S.C.A. Dkt. No. 10-5189, doc. 26 (Motion Order). The Supreme

Court thereafter ruled that the FSA applies retroactively.

Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012). This Court

then granted the Government's motion to vacate the sentence and

remand the matter for "de novo resentencing." United States v.

Hodge, U.S.C.A. Dkt. No. 10-5189, doc. 56 (Motion Order).

At the resentencing hearing on January 18, 2013, the

district court (Burns, J.) sentenced Hodge principally to 46 months'

imprisonment -– the bottom of the Guidelines range -- and five

years' supervised release. This appeal followed.

Hodge argues that his sentence was procedurally and

substantively unreasonable because the district court increased the

term of his supervised release from four years to five years (1)

without addressing the 18 U.S.C. § 3553(a) sentencing factors, and

(2) vindictively and in violation of the "law of the case" doctrine.

We review a sentence for both substantive and procedural

unreasonableness under a "deferential abuse-of-discretion" standard.

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United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)); United States v.

Watkins, 667 F.3d 254, 260 (2d Cir. 2012).

1. Procedural Reasonableness

Hodge argues that the imposition of a five-year term of

supervised release was procedurally unreasonable because the

district court failed to properly consider the § 3553(a) factors,

the Sentencing Guidelines, and the newly calculated minimum term of

supervised release as identified by the presentence report. The

addendum to the presentence report noted that Hodge was subject to

three years to life of supervised release, pursuant to 21 U.S.C. §

841(b)(1)(C).

When reviewing whether a sentence is procedurally

reasonable, "we presume, in the absence of record evidence

suggesting otherwise, that a sentencing judge has faithfully

discharged her duty to consider the statutory factors." United

States v. Legros, 529 F.3d 470, 478 (2d Cir. 2008) (alteration

omitted). Hodge has not presented any evidence or arguments to

overcome that presumption.

To the contrary, at Hodge's sentencing hearing, counsel

discussed the § 3553(a) factors at length -– including Hodge's

personal background, his criminal record, and the nature and

circumstances of his offense. Indeed, Hodge's counsel even

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emphasized the assistance that the probation office would provide

Hodge after his release. Furthermore, the court discussed the

presentence report and acknowledged that it had "read the respective

memoranda" filed in the case.

The imposition of the five-year term of supervised release

was therefore procedurally reasonable. See United States v.

Fernandez, 443 F.3d 19, 29 (2d Cir. 2006).

2. Substantive Reasonableness

When reviewing a sentence for substantive reasonableness,

we ask whether the sentence "can[] be located within the range of

permissible decisions." Watkins, 667 F.3d at 261 (quotation marks

omitted). "In the overwhelming majority of cases, a Guidelines

sentence will fall comfortably within the broad range of sentences

that would be reasonable in the particular circumstances." Id.

(alteration and quotation marks omitted).

First, Hodge's reliance on the vindictiveness presumption

set forth in North Carolina v. Pearce, 395 U.S. 711, 723 (1969), is

misplaced. Citing Pearce, Hodge argues that the increased term of

supervised release was unwarranted, absent any new facts to support

an increase in punishment on a resentencing. In Pearce, the Supreme

Court applied a presumption of unconstitutional vindictiveness when,

on remand, the same sentencing judge increased a sentence absent a

basis in any new record facts. Id. at 726. But here, Pearce is

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inapplicable. There was a substantial change in the facts between

the imposition of the first sentence and the sentence from which

Hodge now appeals. The Supreme Court's decision in Dorsey led to

the district court's imposing a substantially reduced prison

sentence. The new sentence imposed on Hodge was, accordingly, not

an increased sentence, but a sentence involving an increase in one

aspect, and a substantial decrease in a more important aspect.

Furthermore, the subsequent sentence was imposed by a different

judge. See United States v. Perez, 904 F.2d 142, 146 (2d Cir.

1990).

Second, Hodge's reliance on the "law of the case" doctrine

is likewise misplaced. Hodge argues that the initial term of four

years' supervised release controls. But Hodge ignores this Court's

prior order, which remanded the matter, in light of Dorsey, for de

novo resentencing. United States v. Hodge, U.S.C.A. Dkt. No. 10-

5189, doc. 56 (Motion Order). The district court therefore owed no

duty to adhere to the initial sentence, as the remand for de novo

resentencing "effectively wiped the slate clean." Pepper v. United

States, 131 S. Ct. 1229, 1251 (2011).

Third, the court concluded -- as Hodge's counsel

suggested -- that Hodge would benefit from the probation office's

guidance. The court noted Hodge's tendency to "go[] off the

appropriate behavior every once in a while" and that, in the court's

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view, Hodge "really . . . needs" guidance "for that period of time."

A term of five years' supervised release, therefore, was not

"shockingly high" so as to render the sentence substantively

unreasonable. United States v. Rigas, 583 F.3d 108, 123 (2d Cir.

2009). In light of the decrease in the term of incarceration, the

district court's decision to increase the period of supervised

release was not unreasonable.

Accordingly, we find that the imposition of five years'

supervised release was substantively reasonable "as explained by the

district court, [and] can bear the weight assigned it under the

totality of circumstances in the case." Id. at 122 (quoting Cavera,

550 F.3d at 191).

* * *

We have considered Hodge's remaining arguments and

conclude they are without merit. For the foregoing reasons, we

AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk

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