10-4963-cr
United States v. Howard
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19th day of January, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 v. 10-4963-cr
19
20 TYRONE HOWARD,
21
22 Defendant-Appellant.
23
24
25 FOR APPELLANT: MOLLY K. CORBETT, Research and Writing
26 Specialist, for Lisa Peebles, Acting
27 Federal Defender, Federal Public Defender
28 Office, Albany, N.Y.
29
30 FOR APPELLEE: BRENDA K. SANNES, Assistant United States
31 Attorney (Daniel Hanlon, Assistant United
32 States Attorney, on the brief), for
33 Richard S. Hartunian, United States
34 Attorney for the Northern District of New
35 York, Syracuse, N.Y.
1
2 Appeal from the United States District Court for the
3 Northern District of New York (Scullin, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the judgment of the United States District
7 Court for the Northern District of New York be AFFIRMED.
8 Appellant appeals from a judgment of the United States
9 District Court for the Northern District of New York
10 (Scullin, J.), which imposed an incarceratory sentence of 90
11 months and a condition of supervised release that Appellant
12 not associate with members of the Bloods Criminal Street
13 Gang (“Bloods”). We assume the parties’ familiarity with
14 the underlying facts, the procedural history, and the issues
15 presented for review.
16 BACKGROUND
17 Defendant-Appellant Tyrone Howard pleaded guilty to a
18 one-count indictment charging him with violating 18 U.S.C. §
19 922(g)(1), which prohibits felons from possessing firearms.
20 Because Howard possessed a semi-automatic firearm and had
21 two prior qualifying offenses, Howard’s base offense level
22 under the United States Sentencing Guidelines (“Guidelines”)
23 was 26. U.S.S.G. § 2K2.1(a)(1). Howard also had a
24 significant criminal history, which placed him in criminal
2
1 history category V. The district court gave Howard a three-
2 level reduction for his acceptance of responsibility,
3 bringing his offense level to 23.
4 The Guidelines called for 84 to 105 months of
5 imprisonment. The district court sentenced Howard to 90
6 months’ incarceration. It also imposed a supervised release
7 condition prohibiting Howard from associating with any
8 member of the Bloods. Howard now appeals from the district
9 court’s imposition of the sentence and condition of
10 supervised release.
11 DISCUSSION
12 We review the sentence imposed by the district court to
13 determine whether it is reasonable. Gall v. United States,
14 552 U.S. 38, 46 (2007); United States v. Cavera, 550 F.3d
15 180, 187-88 (2d Cir. 2008) (en banc). Reasonableness
16 review, which has both procedural and substantive
17 components, is “akin to review for abuse of discretion.”
18 United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).
19 Howard contends that this Court should vacate his
20 sentence for three reasons: (1) the district court committed
21 procedural error by (a) failing to adequately explain its
22 sentence, and by (b) failing to explicitly address Howard’s
3
1 argument that the enhancement for possession of a semi-
2 automatic firearm in U.S.S.G. § 2K2.1(a)(1) lacked an
3 empirical basis; (2) an incarceratory sentence of 90 months’
4 imprisonment is substantively unreasonable, primarily
5 because U.S.S.G. § 2K2.1(a)(1) lacks an empirical basis; and
6 (3) the district court committed procedural error by failing
7 to comply with Federal Rule of Criminal Procedure
8 32(i)(3)(B)’s requirement that the district court either
9 rule on Howard’s dispute with the pre-sentence report’s
10 references to his membership in the Bloods or,
11 alternatively, explicitly state that the matter would not
12 affect sentencing; he further argues that the condition of
13 supervised release prohibiting him from associating with
14 members of the Bloods must be stricken. Each of these
15 arguments is taken in turn.
16
17 First, we reject Howard’s claim that the district court
18 committed procedural error by failing to adequately explain
19 its sentence and by failing to explicitly address his
20 argument that the applicable Guideline lacked an empirical
21 basis. A district court commits procedural error when it
22 fails to adequately explain its sentence, as 18 U.S.C.
23 3553(c) requires. Cavera, 550 F.3d 180, 192-93 (2d Cir.
4
1 2008). Although “[s]tating no reasons at all plainly falls
2 short” of satisfying § 3553(c), see United States v. Lewis,
3 424 F.3d 239, 245 (2d Cir. 2005) (internal quotation marks
4 omitted), the district court’s explanation of its sentence
5 need not be extensive, especially where a Guidelines
6 sentence is imposed, see Rita v. United States, 551 U.S.
7 338, 356-59 (2007). “[A]dopting the findings of the PSR is
8 ordinarily sufficient to satisfy § 3553(c).” United States
9 v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011). If the
10 defendant fails to object to the limited nature of the
11 district court’s explanation, plain error review applies.
12 United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir.
13 2007).
14 Here, the district court adopted the findings of the
15 pre-sentence report in open court, and it imposed a
16 Guidelines sentence, which does not require lengthy
17 explanation. As such, Howard, who did not object below to
18 what he now perceives as the district court’s lack of an
19 adequate explanation of its sentence, has failed to
20 demonstrate plain error. Similarly, we reject Howard’s
21 claim that the district court erred by failing to explicitly
22 address his argument that the applicable Guideline lacked an
5
1 empirical foundation. This Court has never required that
2 the district court address every argument, frivolous or not,
3 made by the defendant. See United States v. Bonilla, 618
4 F.3d 102, 111 (2d Cir. 2010).
5 We turn next to Howard’s claim that his sentence was
6 substantively unreasonable because the Guideline applicable
7 to felons possessing semi-automatic weapons, U.S.S.G. §
8 2K2.1, lacks an empirical basis and thus is of “questionable
9 integrity.” Howard Br. 22. In support of this contention,
10 Howard cites the Supreme Court’s decision in Kimbrough v.
11 United States, 552 U.S. 85 (2007), and this Court’s decision
12 in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010).
13 This argument is without merit. That the Sentencing
14 Commission did not cite empirical data in support of its
15 amendment to the Guideline does not render the Guideline
16 flawed. See United States v. Perez-Frias, 636 F.3d 39, 43
17 (2d Cir. 2011).
18 Finally, we turn to Howard’s argument that the district
19 court erred because it failed to resolve his dispute with
20 the pre-sentence report’s references to his purported
21 membership in the Bloods and then based a supervised release
22 condition on that disputed membership. Federal Rule of
6
1 Criminal Procedure 32(i)(3)(B) requires that for any
2 disputed portion of the pre-sentence report, the district
3 court either “rule on the dispute or determine that a ruling
4 is unnecessary . . . because the matter will not affect
5 sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Here, although
6 the district court did not rule on whether Howard was a
7 member of the Bloods or explicitly state that it would not
8 consider the matter in sentencing Howard, the district
9 court’s remarks at Howard’s sentencing hearing, when read in
10 context, made clear that it would not consider Howard’s
11 purported membership in the Bloods when crafting its
12 sentence. Any technical failure on the part of the district
13 court to explicitly state as much is harmless. Cf. United
14 States v. Gilmore, 599 F.3d 160, 168 (2d Cir. 2010).
15 That the district court imposed a supervised release
16 condition prohibiting Howard from associating with members
17 of the Bloods does not suggest otherwise. Howard, through
18 counsel, admitted that he associated with members of the
19 Bloods in the past. The imposition of the condition, which
20 prevents Howard from associating with members of a violent
21 criminal enterprise during the period of his supervised
22 release, does not constitute plain error. See U.S.S.G. §
7
1 5D1.3(c)(9); United States v. Albanese, 554 F.2d 543, 546
2 (2d Cir. 1977).
3 We have considered Howard’s remaining arguments and,
4 after a thorough review of the record, find them to be
5 without merit.
6 For the foregoing reasons, the judgment of the district
7 court is hereby AFFIRMED.
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
8