12-43-cr
United States v. Monroe
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 9th day of November, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 DENNY CHIN,
8 Circuit Judges,
9 DAVID G. LARIMER,
10 District Judge.*
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 12-43-cr
19
20 COREY CAIN,
21
22 Defendant,
23
24 TERENCE MONROE,
25
26 Defendant-Appellant.
27
28
*
The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
1 FOR APPELLEE: Katherine Polk Failla, Brendan R.
2 McGuire, Brent S. Wible, Assistant United
3 States Attorneys, for Preet Bharara,
4 United States Attorney for the Southern
5 District of New York, New York, NY.
6
7 FOR APPELLANT: Michael Hueston, New York, NY.
8
9 Appeal from the United States District Court for the
10 Southern District of New York (Wood, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the United States District
14 Court for the Southern District of New York is AFFIRMED.
15 Defendant-Appellant Terence Monroe (“Monroe”) appeals
16 from a December 13, 2011 judgment of the United States
17 District Court for the Southern District of New York (Wood,
18 J.) revoking Monroe’s supervised release and sentencing him
19 to nine months’ imprisonment and four years’ supervised
20 release. The district court found by a preponderance of the
21 evidence that Monroe had violated three specifications of
22 his supervised release: (1) using a controlled substance,
23 (2) leaving a halfway house without permission, and (3)
24 failing to attend court-ordered counseling sessions. The
25 panel has reviewed the briefs and the record in this appeal
26 and agrees unanimously that oral argument is unnecessary
27 because “the facts and legal arguments [have been]
28 adequately presented in the briefs and record, and the
2
1 decisional process would not be significantly aided by oral
2 argument.” Fed. R. App. P. 34(a)(2)(C). We assume the
3 parties’ familiarity with the underlying facts, the
4 procedural history, and the issues presented for review.
5 We review a district court’s finding of a violation of
6 supervised release for an abuse of discretion and the
7 court’s factual findings for clear error. See United States
8 v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006). Monroe
9 challenges the district court’s ruling on two grounds.
10 First, Monroe argues that the court made clear factual
11 errors in determining that he had violated the terms of his
12 supervised release. With respect to the first
13 specification, Monroe contends that the government failed to
14 show that Monroe had used marijuana since his previous court
15 date on October 18, 2011. This argument fails because the
16 exact timing of the violation is irrelevant as the
17 government showed that the violation occurred as charged
18 “[o]n or before October 26, 2011.” Moreover, at the
19 district court’s hearing, Monroe explicitly admitted to
20 using marijuana while on supervised release.
21 With respect to the second specification, Monroe
22 testified at the hearing that he was told to leave the
23 halfway house after a verbal altercation over smoking
3
1 cigarettes. The district court reasonably credited the
2 testimony of Probation Officer Elisha Rivera (“Rivera”) that
3 Monroe had not been discharged at the time he left the
4 halfway house. “We accord strong deference to a district
5 court’s credibility determinations, particularly where that
6 court based its findings on such determinations.” Carlton,
7 442 F.3d at 811 (citation omitted). The court also credited
8 Rivera’s testimony regarding the third violation—Monroe’s
9 failure to attend counseling sessions. Rivera testified
10 that she checked in with Monroe’s counselor after each
11 scheduled session to verify his attendance and that he had
12 “missed most of the sessions, if not all” since early
13 November 2011.
14 Second, Monroe argues that his sentence was
15 unreasonable. The district court has “broad discretion” to
16 sentence a defendant for a violation of supervised release
17 and is guided by “non-binding policy statements” found in
18 Chapter Seven of the United States Sentencing Guidelines
19 Manual. See United States v. Pelensky, 129 F.3d 63, 69 (2d
20 Cir. 1997). The district court here had discretion to
21 sentence Monroe for a term of up to five years in prison
22 because Monroe’s underlying conviction was a Class A Felony
23 (conspiracy to distribute at least fifty grams of cocaine
4
1 base). 18 U.S.C. § 3583(e)(3) (2008). After conducting a
2 thorough hearing, the district court imposed the sentence
3 recommended by the United States Probation Office of nine
4 months’ imprisonment, which falls within Chapter Seven’s
5 specified range of three to nine months, U.S.S.G. §
6 7B1.4(a), and four years’ supervised release. This sentence
7 is neither procedurally nor substantively unreasonable in
8 light of the court’s well-supported findings.
9 For the foregoing reasons, the judgment of the district
10 court is hereby AFFIRMED.
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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