17-795-cr
United States v. Ivey
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 10th day of August, two
thousand seventeen.
PRESENT:
ROBERT D. SACK,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 17-795-cr
TONY IVEY,
Defendant-Appellant.
_____________________________________
For Appellant: JAY S. OVSIOVITCH, Federal Public
Defender’s Office, Western District of
New York, Rochester, NY.
For Appellee: CARINA H. SCHOENBERGER (Geoffrey
J.L. Brown, on the brief), Assistant
United States Attorneys, for Richard
S. Hartunian, United States Attorney
for the Northern District of New York,
Syracuse, NY.
Appeal from a judgment of the United States District Court for the Western
District of New York (Geraci, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Following a guilty plea to threatening to kill a federal prosecutor in violation
of 18 U.S.C. § 115(a)(1)(B), Defendant-Appellant Tony Ivey was sentenced
principally to a term of 20 months’ imprisonment to be followed by three years of
supervised release. On appeal, Ivey challenges the procedural reasonableness of his
sentence. He contends that that his sentence is procedurally unreasonable because
the district court failed to (1) provide reasonable notice that it was contemplating an
upward departure, as required under Fed. R. Crim. P. 32(h); and (2) reference the
new criminal history category it applied when departing upward. We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
We review sentences for procedural and substantive “unreasonableness,”
which “amounts to review for abuse of discretion.” United States v. Cavera, 550
F.3d 180, 187 (2d. Cir. 2008). A district court’s decision to depart upward is
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reviewed for abuse of discretion. United States v. Ashley, 141 F.3d 63, 69 (2d Cir.
1998).
When a defendant fails to object to an alleged sentencing error before the
district court, we review for plain error. United States v. Villafuerte, 502 F.3d 204,
207 (2d Cir. 2007). An appellate court may, in its discretion, correct a plain error
where “the appellant demonstrates that (1) there is an ‘error’; (2) the error is ‘clear
or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the
appellant’s substantial rights, which in the ordinary case means’ it ‘affected the
outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” United States v.
Marcus, 560 U.S. 258, 262 (2010) (alteration in original) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)).
I.
As to Ivey’s argument regarding notice of the contemplated upward
departure under Federal Rule of Criminal Procedure 32(h), the Rule demands that
“before a district court can depart upward on a ground not identified as a ground for
upward departure either in the presentence report or in a prehearing submission by
the Government, Rule 32 requires that the district court give the parties reasonable
notice that it is contemplating such a ruling.” Burns v. United States, 501 U.S. 129,
138 (1991); see also Fed. R. Crim. P. 32(h).
“The obligation of the district court, prior to sentencing with upward
departure, is to assure itself that the defendant has received notice and has thus
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had adequate opportunity to defend against that risk.” United States v. Contractor,
926 F.2d 128, 131 (2d Cir. 1991). “So long as the defendant is adequately warned
that he faces the possibility of an upward departure so that he will not be unfairly
surprised and will have adequate opportunity to argue against it, the concern is
satisfied, regardless of whether the defendant receives notice from the judge or from
another source.” Id. at 131–32. The Government contends that because Ivey did
not raise an objection before the district court, he must demonstrate that the
district court committed plain error, which he fails to do because the PSR put him
on notice of the potential for an upward departure. See Fed. R. Crim. P. 52(b).
We conclude that Ivey cannot demonstrate plain error. Indeed, the specific
ground for the district court’s departure—inadequacy of initial criminal history
category—is identified in the PSR. While the PSR does not explicitly state that the
district court could depart on this ground, it does provide notice that the court “may
want to consider an upward departure based on inadequacy of criminal history
category.” Presentence Report at ¶105. Because Ivey has not demonstrated that
the district court committed error in relying on a ground that was not “identified for
departure,” he cannot show plain error occurred. See, e.g., United States v. Belliard,
308 F. App’x 488, 489–90 (2d Cir. 2009) (summary order) (concluding that appellant
failed to “demonstrate that the district court erred in relying on a ground that was
not ‘identified for departure’” where PSR “provide[d] notice that the district court
might consider” upward departure).
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II.
Next, Ivey claims that the district court failed to reference the new criminal
history category it applied when departing upward, as required by U.S.S.G. §
4A1.3(a), and that the district court “wrongly considered prior offenses” in
determining his criminal history category. Appellant’s Br. at 24. Section 4A1.3 of
the Guidelines authorizes an upward departure from the prescribed range when the
sentencing court finds that a defendant’s criminal history category “substantially
under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).
Section 4A1.3(a)(4) guides sentencing courts as to the extent of such
departures. Subdivision (A) instructs that where, as here, a sentencing court
upwardly departs from any criminal history category lower than category VI,1 “the
court shall determine the extent of a departure . . . by using, as a reference, the
criminal history category applicable to defendants whose criminal history or
likelihood to recidivate most closely resembles that of the defendant’s.” Id. §
4A1.3(a)(4)(A) (emphasis added). We have held, though, that “[a] sentencing court
1 Subdivision B suggests an approach for upward departures from criminal history category VI (the
highest category):
In a case in which the court determines that the extent and nature of
the defendant's criminal history, taken together, are sufficient to
warrant an upward departure from Criminal History Category VI,
the court should structure the departure by moving incrementally
down the sentencing table to the next higher offense level in Criminal
History Category VI until it finds a guideline range appropriate to the
case.
U.S.S.G. § 4A1.3(a)(4)(B).
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considering an upward departure under [section] 4A1.3 is not required by our cases
to pause at each category above the applicable one to consider whether the higher
category adequately reflects the seriousness of the defendant’s record” before
arriving at an appropriate sentence. United States v. Simmons, 343 F.3d 72, 78 (2d
Cir. 2003). Indeed, “as long as the reasons for such a departure are fully explained,
a mechanistic, step-by-step procedure is not required.” Id. (internal quotation
marks omitted). Because Ivey did not object to the district court’s explanation of its
upward departure, we review for plain error. See United States v. Cassesse, 685
F.3d 186, 188 (2d Cir. 2012).
Here, the district court departed from a Guidelines range of six to twelve
months’ imprisonment (based on a criminal history category II) to a sentence of 20
months’ imprisonment (a middle-of-the-range sentence implicitly based on a
criminal history category V) on the ground that the defendant’s applicable criminal
history category II did not adequately “capture” the seriousness of Ivey’s past
criminal record. The court stressed Ivey’s “history of both domestic violence and
violence in the community,” “pattern of criminal violent activity over decades,” and
past offenses involving violent assaults. App’x at 86. In reaching this conclusion,
however, the court did not explicitly “us[e], as a reference, the criminal history
category applicable to defendants whose criminal history or likelihood to recidivate
most closely resembles that of the defendant’s” as contemplated by section
4A1.3(a)(4)(A).
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Although the district court was “not required . . . to pause at each category
above [category II] to consider whether [they] adequately reflect[ed] the seriousness
of the defendant’s record,” Simmons, 343 F.3d at 78, it does not follow that it was
free to disregard the methodology set forth in section 4A1.3(a)(4)(A) by failing to
identify any criminal history category whatsoever. In other words, the district court
acting under these circumstances erred by failing to explain why its implied choice
of criminal history V was more appropriate than criminal history II.2 We need not
resolve that issue, though, because even assuming that there was such an error,
Ivey has failed to demonstrate that it was plain error. He has not established how
any such error might have affected his substantial rights; it is clear from the record
that the outcome at sentencing would have been no different absent the error. See
Marcus, 560 U.S. at 262 (affecting substantial rights, means, in the ordinary case,
affecting “the outcome of the district court proceedings” (internal quotation marks
omitted)).
Last, Ivey’s contention that the district court improperly considered his minor
offenses in assessing the criminal history category finds no support in the record.
In fact, the district court expressly acknowledged that not every one of Ivey’s past
offenses factored into its determination to depart upward, explaining that “[e]ven
though some [past offenses] involved violations, a number of instances . . . involved
2 Indeed, unlike section 4A1.3(a)(4)(B), which merely suggests a methodology, section 4A1.3(a)(4)(A)
appears to mandate one. Compare U.S.S.G. § 4A1.3(a)(4)(B) (providing that “the court should” follow
a particular methodology), with id. § 4A1.3(a)(4)(A) (providing that “the court shall” follow a
particular methodology); see United States v. Harris, 13 F.3d 555, 559 (2d Cir. 1994) (interpreting
section 4A1.3(a)(4)(B) as suggesting rather than mandating a methodology because, inter alia, it uses
the word “should” rather than “shall”).
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violent incidents.” App’x at 88; cf. Ashley, 141 F.3d at 70 (concluding that upward
departure was not unreasonable where “the court noted that while many of them
were minor offenses, several others involved physical conflicts with arresting
officers or other assaults with intent to inflict bodily injury”). The record clearly
illustrates that the district court’s upward departure was based on the violent
nature of Ivey’s criminal history and not solely on the number of offenses. The
district court’s upward departure was therefore not unreasonable.
We have considered all of Ivey’s remaining arguments on appeal and
determine they are without merit. For the foregoing reasons, the judgment of the
district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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