13-0835-cr
United States v. Kalakowski
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 14th day of April, two thousand fourteen.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 13-0835-cr
STEPHEN KALAKOWSKI,
Defendant-Appellant.
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FOR APPELLEE: Emily E. Berger and Burton T. Ryan,
Jr., Assistant United States
Attorneys, for Loretta E. Lynch,
United States Attorney for the
Eastern District of New York,
Brooklyn, New York.
FOR DEFENDANT-APPELLANT: Yuanchung Lee, Assistant Federal
Public Defender, Federal Defenders
of New York, Inc., New York, New
York.
Appeal from the United States District Court for the
Eastern District of New York (Platt, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment is AFFIRMED.
Defendant-appellant Stephen Kalakowski appeals from a
judgment entered on February 26, 2013. After the district court
(Platt, J.) found that Kalakowski violated his terms of
supervised release by committing new criminal conduct, i.e.,
state offenses including rape, burglary, and false imprisonment,
the district court revoked Kalakowski's supervised release and
sentenced him to 60 months' imprisonment. Kalakowski challenges
this sentence on both procedural and substantive grounds. We
assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
A. Procedural Reasonableness
Kalakowski first argues that the district court
violated 18 U.S.C. § 3553(c) by failing to state "any reasons for
imposing the maximum possible sentence." Appellant Br. at 18.
We disagree.
A district court procedurally errs when it fails to
consider the relevant statutory factors or "adequately to explain
its chosen sentence." United States v. Cavera, 550 F.3d 180, 190
(2d Cir. 2008); see also Gall v. United States, 552 U.S. 38, 49-
50 (2007). Unless the record suggests otherwise, however, "we
presume 'that a sentencing judge has faithfully discharged [his]
duty to consider the statutory factors.'" United States v.
Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (quoting United
States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006)). Moreover,
"[s]ection 3553(c) requires no specific formulas or
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incantations," and "[w]here . . . the sentence concerns a
violation of supervised release and the ultimate sentence is
within the recommended range, compliance with the statutory
requirements can be minimal." United States v. Cassesse, 685
F.3d 186, 192 (2d Cir. 2012).
The district court revoked Kalakowski's supervised
release and sentenced him to five years' incarceration, the
statutory maximum, as recommended by the Probation Department in
its violation petition. See 18 U.S.C. § 3583(e). At the
beginning of sentencing, the district court acknowledged that it
received defense counsel's two letters requesting a lower term of
incarceration than that recommended by the Probation Department,
followed by a period of supervised release. Moreover, at the
hearing, defense counsel "reiterate[d]" her request. App. at 55.
Before it imposed sentence, the district court explained that it
had "been over [the] file with the probation department[,] . . .
read their report[,] . . . [and] had a number of conversations
with the probation officer." Id. at 56. The district court also
heard from the victim. Based on this information, the district
court concluded that "the only appropriate sentence [ ] [wa]s to
revoke any supervised release term and impose a term of
incarceration of five years." Id.
Because the record does not suggest otherwise, we
conclude that the district court properly considered the
statutory factors. Fernandez, 443 F.3d at 30. Moreover,
although we acknowledge that the district court's explanation for
imposing the maximum period of incarceration was brief, "the
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sentence concern[ed] a violation of supervised release and
. . . [wa]s within the recommended range." Cassesse, 685 F.3d at
192. Accordingly, we hold that Kalakowski's sentence was
procedurally reasonable.
B. Substantive Reasonableness
Kalakowski next argues that his 60-month sentence was
substantively unreasonable. This challenge also fails.
A sentence imposed by the district court is
substantively unreasonable only if it "cannot be located within
the range of permissible decisions." Cavera, 550 F.3d at 189
(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.
2007)). We will set aside sentencing decisions only in
"exceptional cases," id., as we will not substitute our judgment
for that of the district court, Fernandez, 443 F.3d at 27.
Kalakowski's sentence was within the range of
reasonable sentences. On appeal, Kalakowski argues that the
district court failed to consider that he suffers from serious
mental illness. The district court was well within its
discretion, however, to focus on the seriousness of Kalakowski's
violations of supervised release, which included the rape of his
former girlfriend. See United States v. Capanelli, 479 F.3d 163,
165 (2d Cir. 2007) ("[T]he weight given to any single factor 'is
a matter firmly committed to the discretion of the sentencing
judge and is beyond our review.'" (quoting Fernandez, 443 F.3d at
32)). We therefore conclude that Kalakowski's sentence was
substantively reasonable.
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We have considered Kalakowski'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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