United States v. McGhie

11-2942-cr United States v. McGhie 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 22nd day of October, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 CHESTER J. STRAUB, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 Appellee, 15 16 -v.- 11-2942-cr 17 18 HASAAN MCGHIE, 19 Defendant-Appellant. 20 - - - - - - - - - - - - - - - - - - - -X 21 22 FOR APPELLANT: PAUL J. ANGIOLETTI, Staten 23 Island, New York. 24 25 FOR APPELLEES: MICHAEL P. CANTY (Peter A. 26 Norling on the brief), for 27 Loretta E. Lynch, United States 28 Attorneys Office for the Eastern 29 District of New York, New York, 30 New York. 1 1 Appeal from a judgment of the United States District 2 Court for the Eastern District of New York (Gershon, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the judgment of the district court be 6 AFFIRMED. 7 8 Hasaan McGhie challenges his sentence to 60 months’ 9 imprisonment and three years’ supervised release following 10 his guilty plea to two charges of violating supervised 11 release. In 2004, McGhie was sentenced to time served and 12 five years’ supervised release after pleading guilty to 13 conspiring to distribute at least 50 grams of cocaine base 14 and to possession of a firearm in furtherance of a drug 15 trafficking crime. McGhie violated supervised release in 16 2008 when he went to Utah where he assumed another identity 17 and was convicted of attempting to disarm a police officer. 18 We assume the parties’ familiarity with the underlying 19 facts, the procedural history, and the issues presented for 20 review. 21 22 We review all sentences for reasonableness. United 23 States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (citing 24 United States v. Booker, 543 U.S. 220, 260-62 (2005)). This 25 includes sentences imposed for violations of supervised 26 release. United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 27 2005). The reasonableness inquiry involves an examination 28 of both the procedures used to arrive at a sentence (i.e., 29 procedural reasonableness) and of the length of sentence 30 (i.e., substantive reasonableness). Cossey, 632 F.3d at 86. 31 32 For both procedural and substantive reasonableness, the 33 standard of review is abuse of discretion. Gall v. United 34 States, 552 U.S. 38, 52 (2007) (noting the “deferential 35 abuse-of-discretion standard of review that applies to all 36 sentencing decisions”). The standard is very deferential to 37 the district court’s sentencing determination. See, e.g., 38 United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) 39 (in banc) (noting that the Court will “set aside a district 40 court’s substantive determination only in exceptional cases 41 where the trial court’s decision cannot be located within 42 the range of permissible decisions”) (internal quotation 43 omitted); United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 44 2009) (requiring sentence to be “shockingly high, shockingly 2 1 low, or otherwise unsupportable” for substantive 2 unreasonableness); United States v. Fernandez, 443 F.3d 19, 3 30 (2d Cir. 2006) (applying presumption on procedural 4 inquiry that “sentencing judge has faithfully discharged her 5 duty to consider the statutory factors”). 6 7 McGhie’s numerous appellate arguments mainly challenge 8 the substantive reasonableness of his 60 month sentence. 9 The Sentencing Guidelines recommended a sentence of 46 to 57 10 months. He argues that the district court failed to give 11 any weight to his mental health issues in arriving at a 12 sentence. That argument is simply belied by the record; the 13 district court carefully considered McGhie’s mental health 14 issues. In any event, the sentence was based on a host of 15 factors, carefully recited by the court, including: the 16 lenient sentence imposed for McGhie’s 2004 drug trafficking 17 offense; the violent nature of McGhie’s violation of 18 supervised release; McGhie’s criminal history; and the need 19 to protect society from McGhie’s conduct. McGhie has shown 20 no procedural error, nor can he satisfy the stringent 21 standard of substantive unreasonableness. There is no 22 reason to disturb the district court’s judgment here. 23 24 Finding no merit in McGhie’s remaining arguments, we 25 hereby AFFIRM the judgment of the district court. 26 27 28 FOR THE COURT: 29 CATHERINE O’HAGAN WOLFE, CLERK 30 3