16-4103-cr
United States v. Hunter
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 21st day of November, two thousand seventeen.
4
5 PRESENT:
6 GERARD E. LYNCH,
7 SUSAN L. CARNEY,
8 Circuit Judges.
9 ALVIN K. HELLERSTEIN,*
10 District Judge.
11 _________________________________________
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 v. No. 16-4103-cr
18
19 MICHAEL HUNTER,
20
21 Defendant-Appellant.
22 _________________________________________
23
24 FOR APPELLANT: Barry D. Leiwant, Assistant Federal Public
25 Defender, Federal Defenders of New
26 York, Inc., New York, NY.
27
* Judge Alvin K. Hellerstein, of the United States District Court for the Southern District of New York,
sitting by designation.
1 FOR APPELLEE: Bridget M. Rohde, Acting United States
2 Attorney for the Eastern District of New
3 York, (Mark E. Misorek, David C. James,
4 Assistant United States Attorneys on the
5 brief), Brooklyn, NY.
6
7 Appeal from a judgment of the United States District Court for the Eastern District
8 of New York (Bianco, J.).
9 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
10 ADJUDGED, AND DECREED that the judgment entered on November 4, 2016, is
11 AFFIRMED.
12 Defendant-appellant Michael Hunter appeals the judgment of conviction entered on
13 November 4, 2016, sentencing him to 48 months’ imprisonment, to run consecutive to his
14 undischarged state sentence of 17 years and six months. The federal sentence was imposed
15 upon his conviction for violating the terms of his federal supervised release. We assume the
16 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
17 on appeal, to which we refer only as necessary to explain our decision to affirm.
18 Hunter was serving an eight-year term of federal supervised release when, in 2009, he
19 was arrested for robbing and sexually assaulting a woman on a subway platform in New
20 York. Although, for a brief period after his arrest, he was found incompetent to stand trial,
21 he thereafter was found to be competent and, in 2013, he was tried and convicted in New
22 York State Supreme Court of several crimes arising out of the 2009 assault. He was
23 sentenced in state court to a term of 17 years and sixth months’ imprisonment, followed by
24 25 years’ post-release parole supervision. After Hunter’s state court conviction, the District
25 Court found that he violated the terms and conditions of his federal supervised release by
26 committing the 2009 crime. The District Court imposed a sentence of 48 months’
27 imprisonment, to run consecutive to his state incarceratory sentence. The 48-month
28 sentence was below Hunter’s Guidelines range of 51 to 60 months. See U.S.S.G. § 7B1.4(a);
29 18 U.S.C. § 3583(e)(3). The Guidelines provide that any term of imprisonment imposed
30 upon the revocation of supervised release should be served “consecutively to any sentence
31 of imprisonment that the defendant is serving, whether or not the sentence of imprisonment
2
1 being served resulted from the conduct that is the basis of the revocation of probation or
2 supervised release.” U.S.S.G. § 7B1.3(f).
3 Hunter argues that the 48-month consecutive term is substantively unreasonable. We
4 review the sentence imposed for a violation of supervised release for reasonableness, which
5 is “akin to review for abuse of discretion.” United States v. Sindima, 488 F.3d 81, 85 (2d Cir.
6 2007). A sentence is substantively unreasonable only in the “exceptional” case that it “cannot
7 be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180,
8 189 (2d Cir. 2008) (en banc). Our practice is to exercise “restraint, not micromanagement” in
9 the execution of our appellate duties in this area. United States v. Fleming, 397 F.3d 95, 100 (2d
10 Cir. 2005).
11 District courts may revoke a term of supervised release and impose a term of
12 imprisonment when a defendant violates a condition of his supervised release. 18 U.S.C.
13 § 3583(e)(3). If the defendant is serving a state term of imprisonment when the court
14 revokes his supervised release, the court may choose to have the resulting term of
15 imprisonment run concurrent with or consecutive to the state term. 18 U.S.C. § 3584(a); see
16 also U.S.S.G. § 7B1.3. In making that decision, courts should consider the factors set forth in
17 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b). These include, inter alia, the defendant’s personal
18 history and characteristics, the need to promote respect for the law and afford adequate
19 deterrence to criminal conduct, the need to protect the public from the defendant’s future
20 crimes, and the applicable Guidelines range. 18 U.S.C. § 3553(a).
21 Hunter’s 48-month sentence is below his Guidelines range. See U.S.S.G. § 7B1.4(a);
22 18 U.S.C. § 3583(e)(3). Although not every sentence that falls within the applicable
23 Guidelines range will be substantively reasonable, a Guidelines sentence is reasonable in the
24 “overwhelming majority” of cases. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006),
25 abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007). In light of Hunter’s
26 repeated inability to comply with the terms and conditions of his release, the District Court
27 reasonably determined that a “very lengthy sentence [wa]s needed to deter him” from
28 additional violations. App’x at 51-52. Based on these considerations, the 48-month sentence
29 imposed is an appropriate sanction for Hunter’s conduct.
3
1 Hunter argues that requiring this sentence to be served consecutive to the state term
2 is unnecessarily harsh. He contends that his lengthy state sentence fully accomplishes the
3 goals of sentencing, and that any additional term of incarceration violates the general
4 principle that sentences should be no longer than necessary to accomplish the goals of
5 sentencing. A sentence for violation of supervised release, however, is not intended to
6 punish the defendant for the underlying crime. Sindima, 488 F.3d at 86. Rather, it is intended
7 to sanction the defendant’s “breach of trust” with the court. Id. A consecutive term,
8 therefore, serves a unique purpose regardless of the length of the underlying state sentence.
9 Here, a consecutive sentence was particularly appropriate in light of the District Court’s
10 conclusion that Hunter’s breach of the court’s trust was “flagrant.” App’x at 51.
11 Neither Hunter’s cognitive difficulty nor the fact that he will be 59 years old when he
12 completes his state term of imprisonment casts doubt on the reasonableness of the District
13 Court’s judgment. The District Court did lower Hunter’s sentence from the Guidelines range
14 of 51 to 60 months to 48 months to account for his possibly diminished mental capacity.
15 The District Court was also entitled to find that the importance of deterring Hunter from
16 additional criminal activity outweighed any remaining concerns about the exact level of his
17 intellectual functioning, particularly in light of the New York state court’s finding that
18 Hunter was competent to stand trial. Finally, although district courts may consider the
19 possibility, based on statistical analyses, that defendants may generally be less likely to
20 reoffend as they age, courts are not required to favor statistical models over evidence
21 suggesting that a particular defendant is likely to reoffend, even as he or she ages. See United
22 States v. Jenkins, 854 F.3d 181, 192 (2d Cir. 2017) (“[I]t would be well within a district court’s
23 discretion to increase a sentence based on a likelihood of reoffending [if there was] . . . some
24 support in the record for that conclusion, such as, for example, a record of previous
25 convictions . . . .”).
26 We conclude accordingly that the District Court’s decision to impose a 48-month
27 sentence to run consecutive to the state term lies within the range of permissible decisions
28 and is not substantively unreasonable.
4
1 * * *
2 We have considered Hunter’s remaining arguments and conclude that they are
3 without merit. Accordingly, we AFFIRM the judgment of the district court.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk of Court
5