18‐296
United States v. Bolling
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.
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 March, two thousand
nineteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 18‐296
VERNON R. BROCKINGTON, AKA
BLACK CAESAR, AKA V, AKA SEALED
DEFENDANT #2, SHARON L. DAYTON,
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AKA RONI, AKA SEALED DEFENDANT
#3, CRYSTAL R. DEASE, AKA SEALED
DEFENDANT #4, RENDELL DESHIELD,
AKA SEALED DEFENDANT #5,
DERRICK DUKES, AKA DOUBLE, AKA
SEALED DEFENDANT #6,
MUHAMMAD HAYNES, AKA
THEODORE HAYES, AKA K‐TONE,
AKA TWIN, SEALED DEFENDANT #7,
STACY B. HILL, AKA BAGZ, AKA
BITTY, AKA SEALED DEFENDANT #8,
SHANNON P. MUNSON, AKA SEALED
DEFENDANT #9, SABRINA A.
SHAMBLIN, AKA SEALED
DEFENDANT #10, MARLAND O.
TULLOCH, AKA SEALED DEFENDANT
#11, CORNELL M. VEALE, JR., AKA
PANAMA, AKA SEALED DEFENDANT
#12, DIWANI BOYKIN, AKA WANI,
PATRICIA D. CRANE, JORDAN M.
KRONE, TERESA A. MINKIN, AKA
TERESA LOFTUS, ETRICE J. RODNEY,
AKA MR. GRADY, AKA BLOODY
GRADY,
Defendants,
VINCENT BOLLING, AKA BUNGEE,
AKA Q, AKA RAH,
Defendant‐Appellant.
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FOR APPELLEE: Paul D. Silver, Miroslav Lovric,
Assistant United States Attorneys,
for Grant C. Jaquith, United States
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Attorney for the Northern District of
New York, Albany, NY (on
submission).
FOR APPELLANT: James P. Egan, Assistant Federal
Public Defender, for Lisa A. Peebles,
Federal Public Defender, Syracuse,
NY (on submission).
Appeal from an order of the United States District Court for the Northern
District of New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Vincent Bolling appeals from the judgment of the United States District
Court for the Northern District of New York (McAvoy, J.) sentencing him
principally to 18 months’ imprisonment for his admitted violations of the
conditions of his supervised release. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues presented for review.
In 2005, Bolling pleaded guilty before Judge McAvoy to a narcotics
conspiracy in violation of 21 U.S.C. § 846 and was sentenced principally to 135
months’ incarceration and five years of supervised release. That sentence
reflected a downward departure under United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) § 4A1.3, because Bolling’s criminal history category
substantially overrepresented the seriousness of his criminal history and the
likelihood that he would commit additional crimes.
In 2008, Bolling’s sentence was reduced to 120 months (the statutory
minimum) on the ground that the United States Sentencing Commission
retroactively amended the Guidelines ranges applicable to offenses involving
cocaine base. 18 U.S.C. § 3582(c)(2).
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Bolling’s five‐year term of supervised release began in July 2014. In 2017
and 2018, the probation office filed petitions in the district court alleging that
Bolling violated the conditions of his supervised release. A warrant for Bolling’s
arrest was issued in March 2017, but he was a fugitive until his December 2017
arrest by local police on two state misdemeanor charges. In a January 17, 2018
hearing, Bolling admitted that he had violated the conditions of his supervised
release by testing positive for marijuana, failing to notify the probation office of a
change in his address, and committing two state offenses.
At sentencing for Bolling’s violations, the district court observed that the
applicable Guidelines range was five to eleven months’ imprisonment, but
determined that an above‐Guidelines sentence was appropriate because of
Bolling’s breach of trust and failure to accept responsibility for the violations.
The court also took into consideration the downward departure granted at
Bolling’s original sentencing, concluding that his violations demonstrated a
likelihood that Bolling will commit additional crimes. Accordingly, the court
sentenced Bolling to 18 months’ imprisonment and two years of supervised
release.
On appeal, Bolling argues that the district court’s imposition of an
above‐Guidelines sentence was procedurally and substantively unreasonable.
1. “Sentences for violations of supervised release are reviewed under
the same standard as for sentencing generally: whether the sentence imposed is
reasonable.” United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (internal
quotation marks omitted). “A district court commits procedural error where it
fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats
the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.
2012) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Our review for
procedural reasonableness is akin to a “deferential abuse‐of‐discretion standard.”
United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (quoting Gall,
552 U.S. at 41). However, “[a] sentencing court’s legal application of the
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Guidelines is reviewed de novo.” United States v. Desnoyers, 708 F.3d 378, 385
(2d Cir. 2013) (internal quotation marks omitted).
Bolling argues that the district court committed procedural error by
imposing an above‐Guidelines sentence in part to account for the § 4A1.3
downward departure that he was granted at his original sentencing. As he
concedes, the Guidelines specifically provide that a departure from the applicable
sentencing range may be warranted when imposing a sentence after the
revocation of supervised release if the original sentence reflected a downward
departure pursuant to Guidelines § 4A1.3. U.S.S.G. Manual § 7B1.4 cmt. n.2
(U.S. Sentencing Comm’n 2018). He nevertheless argues that because of
retroactive amendments to the Guidelines, the § 4A1.3 downward departure
should not be considered a factor because he would have received a reduced
sentence anyway, equal to the statutory minimum of 120 months. Bolling argues
it was therefore procedural error for the district court to impose an
above‐Guidelines sentence in part to offset a downward departure that was, in
hindsight, irrelevant.
However, “[b]oth the Supreme Court and our Court have made clear that a
supervised release revocation sanction is not an additional punishment for the
underlying conviction, but rather part of the original sentence.” United States v.
Johnson, 786 F.3d 241, 245 (2d Cir. 2015), as amended (June 3, 2015).
Accordingly, a “post‐revocation sentence is governed by the law prevailing at the
time of the defendant’s original offense.” United States v. Ortiz, 779 F.3d 176,
181 (2d Cir. 2015) (internal quotation marks omitted). Later amendments to the
Guidelines notwithstanding, the district court’s downward departure at Bolling’s
original sentencing had the significant effect of reducing the sentencing range
from a range of 168 to 210 months to a range of 135 to 168 months. In view of
that departure (which was premised in part on the court’s view as to the
unlikelihood that Bolling would commit additional crimes) and Bolling’s
subsequent violations of the conditions of supervised release, we see no
procedural error in the district court’s determination that an above‐Guidelines
post‐revocation sentence was appropriate. See U.S.S.G. Manual § 7B1.4 cmt. n.2.
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2. “Substantive reasonableness is also reviewed for abuse of discretion.”
Desnoyers, 708 F.3d at 385. “In examining the substantive reasonableness of a
sentence, we review the length of the sentence imposed to determine whether it
cannot be located within the range of permissible decisions.” United States v.
Matta, 777 F.3d 116, 124 (2d Cir. 2015) (internal quotation marks omitted). We
will “set aside a district court’s substantive determination only in exceptional
cases.” Cavera, 550 F.3d at 189 (emphasis omitted).
Bolling challenges the above‐Guidelines sentence as substantively
unreasonable on the grounds that [i] amendments to the Guidelines demonstrate
that his original sentence was substantially “inflated,” so an above‐Guidelines
sentence is not needed to offset the downward departure at the original
sentencing; [ii] pursuant to Guidelines § 7B1.4, the applicable Guidelines range
for his post‐revocation sentence did not reflect the downward departure he
received at his original sentencing; and [iii] his criminal violations while on
supervised release were insufficiently serious to justify concern that he will
commit additional crimes.
Bolling’s arguments are unavailing.
[i] As discussed above, the intervening Guidelines amendments are of no
moment when considering the reasonableness of the post‐revocation sentence,
which is part of the original sentence and therefore is governed by the law
prevailing at the time of Bolling’s original offense. Johnson, 786 F.3d at 245;
Ortiz, 779 F.3d at 181. [ii] While it is so that the Guidelines range for Bolling’s
post‐revocation sentence did not reflect a § 4A1.3 downward departure, that does
not change the fact that he was granted the downward departure at his original
sentencing, making this precisely the situation in which the Guidelines state that a
post‐revocation sentence outside of the Guidelines range may be warranted.
U.S.S.G. Manual § 7B1.4 cmt. n.2. [iii] The district court explained that an
above‐Guidelines sentence was warranted by the risk that he will commit
additional crimes because, inter alia, Bolling breached the trust of the court by
absconding from supervision and remaining a fugitive until he was arrested on
state charges. We see no abuse of discretion in the district court’s conclusions;
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accordingly, Bolling has failed to show that his sentence is substantively
unreasonable.
We have considered Bolling’s remaining arguments and conclude they are
without merit. The judgment of the district court is therefore AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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