15-4051
United States v. Dean
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 16th day of December, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 Circuit Judges,
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-4051
16
17 TODD GLENN DEAN,
18 Defendant-Appellant
19
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21
22
23 FOR APPELLANT: DANIELLE C. WILD, Easton
24 Thompson Kasperek Shiffrin, LLP,
25 Rochester, New York (Lawrence L.
26 Kasperek, on the brief).
27
1
1 FOR APPELLEE: MONICA J. RICHARDS, for
2 William J. Hochul, Jr.,
3 United States Attorney for
4 the Western District of New
5 York.
6
7 Appeal from a judgment of the United States District
8 Court for the Western District of New York (Larimer, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12 Todd Glenn Dean appeals from the judgment of the United
13 States District Court for the Western District of New York
14 (Larimer, J.) imposing a prison sentence of 216 months,
15 following a plea agreement. We assume the parties’
16 familiarity with the underlying facts, the procedural
17 history, and the issues presented for review. We affirm
18 because the government did not violate its plea agreement
19 with Dean and because Dean’s sentence was not substantively
20 unreasonable.
21 After indictment for attempting to entice a minor into
22 sexual activity, Dean entered into a plea agreement with the
23 government providing that: 1) it was the understanding of
24 both parties that a Sentencing Guidelines range of 140 to
25 175 months applied; 2) Dean nonetheless understood that he
26 was subject to a potential term of life imprisonment;
27 3) both the government and Dean had the right to argue for a
2
1 sentence outside the Guidelines range; and 4) both the
2 government and Dean had the right “to bring to the attention
3 of the Court all information deemed relevant to a
4 determination of the proper sentence in this action.” The
5 plea deal did not refer to an enhancement for a “Repeat and
6 Dangerous Sex Offender Against Minors” (U.S.S.G. § 4B1.5),
7 apparently because it was overlooked. The enhancement would
8 have dramatically increased Dean’s Guidelines range.
9 After the plea, the Probation Department (“Probation”)
10 prepared a Presentence Investigation Report (“PSR”) which
11 did recommend that the § 4B1.5 enhancement apply, increasing
12 Dean’s Guidelines range to 235 to 293 months. After
13 receiving the PSR, the government submitted sentencing
14 briefs stating that the enhancement for repeat sex offenses
15 against minors did not apply and the correct Guidelines
16 range was therefore still 140 to 175 months, but requesting
17 an above-Guidelines sentence of 240 months. The district
18 court found that the enhancement applied, and Dean does not
19 contest that it applies by its terms. The district court
20 sentenced Dean below the resulting Guidelines range to 216
21 months.
22 The government did not breach its plea agreement by
23 arguing for an above-Guidelines sentence; the plea agreement
24 explicitly allowed the government to do so. Probation, not
3
1 the government, argued that the § 4B1.5 enhancement should
2 apply, and the government told the district court its
3 position was that the § 4B1.5 enhancement did not apply.
4 See United States v. Riera, 298 F.3d 128, 134 (2d Cir. 2002)
5 (holding that the government’s representations to the court
6 that it was not seeking an upward departure suggested it had
7 not breached the plea agreement). The government’s brief
8 argued for an above-Guidelines sentence on the separate
9 grounds, under 18 U.S.C. § 3553, that it was needed “to
10 protect the public from further crimes of the defendant” and
11 “to afford adequate deterrence to criminal conduct.”
12 It is unsurprising that the § 4B1.5 enhancement seems
13 to also be driven by a concern to protect the public and to
14 afford adequate deterrence. Section 3553 reflects the
15 purposes of sentencing generally, and each specific
16 Sentencing Guideline is designed to carry out those
17 purposes. See Rita v. United States, 551 U.S. 338, 348
18 (2007) (citing 28 U.S.C. § 991(b)). If a provision in a
19 plea agreement allowing the government to argue for an
20 above-Guidelines sentence based on the § 3553 factors is to
21 have meaning, the government must therefore be allowed to
22 make those arguments even if they overlap to some extent
23 with the argument for a potential enhancement. An exception
24 applies when the government acts in bad faith; but the
4
1 district court found, and we agree, that there has been no
2 bad faith. See United States v. Habbas, 527 F.3d 266, 271
3 (2d Cir. 2008).1
4 Dean also argues that his sentence was substantively
5 unreasonable. We review the substantive reasonableness of a
6 sentence for abuse of discretion and will only set aside
7 sentences which are “shockingly high, shockingly low, or
8 otherwise unsupportable as a matter of law.” United States
9 v. Pattee, 820 F.3d 496, 512 (2d Cir. 2016) (internal
10 quotations omitted). The district court considered
11 potential mitigating factors and then sentenced Dean to a
12 below-Guidelines sentence given the need to protect the
13 public. That sentence was neither shockingly high nor
14 unsupportable.
15 For the foregoing reasons, and finding no merit in
16 Dean’s other arguments, we hereby AFFIRM the judgment of the
17 district court.
18
19 FOR THE COURT:
20 CATHERINE O’HAGAN WOLFE, CLERK
21
1
Dean cites this court’s summary order in United States
v. Robinson; but that (non-precedential) case could be
easily distinguished because it implicitly found that the
government acted in bad faith. 634 F. App'x 47, 51 (2d Cir.
2016) (summary order).
5