13-4852-cr
United States v. Davis
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 23rd day of June, two thousand fourteen.
PRESENT: PIERRE N. LEVAL,
CHESTER J. STRAUB,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 13-4852-cr
TAMIKA DAVIS,
Defendant-Appellant.
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APPEARING FOR APPELLANT: JAYME FELDMAN (Leslie E. Scott, on the
brief), Federal Public Defender‟s Office,
Western District of New York, Buffalo,
New York.
APPEARING FOR APPELLEE: JOSEPH KARASZEWSKI (Monica J. Richards,
on the brief), Assistant United States Attorneys,
for William J. Hochul, Jr., United States
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Attorney for the Western District of New York,
Buffalo, New York.
Appeal from a judgment of the United States District Court for the Western District
of New York (Richard J. Arcara, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on January 13, 2014, is AFFIRMED.
Defendant Tamika Davis stands convicted of violating seven conditions of
supervised release imposed in connection with her earlier conviction of bank fraud. See
18 U.S.C. § 1344. Davis challenges her conviction on four of the violations and contends
that her within-Guidelines sentence of an additional 27 months‟ imprisonment 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.
1. Violation of Supervised Release
“A district court‟s finding that a defendant has violated conditions of supervised
release is reviewed for abuse of discretion, and its factual findings are reviewed for clear
error.” United States v. Glenn, 744 F.3d 845, 847 (2d Cir. 2014) (internal citation
omitted). The district court may revoke supervised release and require the defendant to
serve a prison term if the court “„finds by a preponderance of the evidence that the
defendant violated a condition of supervised release.‟” Id. (quoting 18 U.S.C. §
3583(e)(3)).
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Davis contends that the district court erred in finding her to have violated her
supervision by making two false statements and two omissions in reports to probation
officers because the statements and omissions (1) were not material, as they did not affect
how probation officers supervised her; and (2) were not made knowingly and willfully.
These arguments are meritless largely for the reasons stated in the district court‟s
December 5, 2013 opinion.
First, Davis‟s lies and omissions regarding disclosure of car rentals and related
expenditures were material to her supervision because probation officers were charged
with ensuring that Davis met various financial obligations, including restitution to victims.
Because Davis‟s deceptions were thus “capable of influencing” her supervising officers,
materiality is demonstrated. United States v. Whab, 355 F.3d 155, 163 (2d Cir. 2004)
(stating that, under 18 U.S.C. § 1001, “false statement is material if it has a „natural
tendency to influence, or is capable of influencing, the decision of the decisionmaking
body to which it was addressed‟” (quoting Neder v. United States, 527 U.S. 1, 16 (1999))).
Second, the district court considered Davis‟s professed lack of deceptive intent and
found her not credible in light of the probation officers‟ competing testimony and a
thorough review of the monthly supervision reports. “We accord strong deference to a
district court‟s credibility determinations, particularly where that court based its findings
on such determinations.” United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006). In
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this case, we identify no error in the district court‟s determination that Davis willfully lied
and omitted material information in violation of the conditions of her supervised release.
2. Substantive Reasonableness
“The standard of review on the appeal of a sentence for violation of supervised
release is . . . the same standard as for sentencing generally: whether the sentence imposed
is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005). In arguing
substantive unreasonableness, Davis “bears a heavy burden because our review of a
sentence for substantive reasonableness is particularly deferential.” United States v.
Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will set aside a sentence on substantive
grounds “only in exceptional cases where the trial court‟s decision cannot be located within
the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (en banc) (internal quotation marks omitted). That is not this case.
In urging vacatur, Davis contends that (a) the district court failed to consider certain
mitigating factors, and (b) the nature and circumstances of the violations warranted a lesser
sentence.
Davis‟s first argument is meritless. We do not require sentencing courts to identify
or discuss on the record each mitigating factor considered. See United States v.
Broxmeyer, 699 F.3d at 295 n.31 (collecting cases). Moreover, Davis cannot point to
anything in the record indicating that the district court failed to consider her mitigation
arguments prior to sentencing. See United States v. Cossey, 632 F.3d 82, 87 (2d Cir.
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2011) (“A reviewing court entertains a strong presumption that the sentencing judge has
considered all arguments properly presented to her, unless the record clearly suggests
otherwise.” (internal citation and quotation marks omitted)).
Insofar as Davis argues that the district court should have weighed certain
mitigating factors differently, “we will not second guess the weight (or lack thereof) that
the judge accorded to a given factor or to a specific argument made pursuant to that factor”
absent procedural error or a substantively unreasonable sentence. United States v. Pope,
554 F.3d 240, 247 (2d Cir. 2009) (internal quotation marks omitted).
Finally, to the extent Davis identifies error in the district court‟s alleged failure to
articulate sufficient reasons for the sentence imposed, we disagree. While the district
court could have been clearer in stating the reasons, it is apparent in context that the judge
relied on factors highlighted by the government during the sentencing proceedings. This
included Davis‟s extensive criminal history, her multiple violations of the conditions of
supervised release, and her repeated untruthfulness with the court and probation. See J.A.
496–97. The court also commented to the effect that the court‟s prior leniency in granting
Davis a two-level downward departure had not improved Davis‟s compliance, thus
justifying greater severity. The court stated that Davis appeared to view “the Court and
probation office [as] an inconvenience to her life.” Id. at 499–500. In the context of this
case, this was a sufficient explanation of reasons for its within-Guidelines sentence. See
Rita v. United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge decides simply to apply
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the Guidelines to a particular case, doing so will not necessarily require lengthy
explanation.”).
Likewise meritless are Davis‟s arguments for why 27 months was an unreasonable
sentence. “[A]lthough we do not presume that a within-Guidelines sentence is
substantively reasonable, 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.” United States v. Wagner-Dano, 679 F.3d 83, 95 (2d Cir. 2012)
(internal citations and quotation marks omitted). Nothing in the record of this case
warrants a different conclusion. The district court articulated concern that Davis‟s
behavior revealed “a person with no regard for the norms of society,” which we understand
as referring to her apparent disregard for compliance with the law. J.A. 499. Her seven
violations of conditions of supervised release, which included her conceded shoplifting
within hours of committing to Reentry Court participation as well as persistent deceit in
dealing with probation officers, support that assessment. Under such circumstances, we
cannot say that a 27-month within-Guidelines sentence was substantively unreasonable.
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3. Conclusion
We have considered Davis‟s remaining arguments and conclude that they are
without merit. Therefore, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
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