United States v. Ryan

21-1951-cr
United States v. Ryan

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.

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 10th day of November, two thousand twenty-two.

PRESENT: REENA RAGGI,
JOSEPH F. BIANCO,
SARAH A. L. MERRIAM,

Circuit Judges.
_____________________________________

United States of America,

Appellee,

v. 21-1951-cr

Aysia Ryan,

Defendant-Appellant. *
_____________________________________

FOR APPELLEE: BRENDAN KEEFE, Assistant United States
Attorney (Sandra S. Glover, Assistant United
States Attorney, on the brief), for Vanessa
Roberts Avery, United States Attorney for the
District of Connecticut, New Haven, CT.

FOR DEFENDANT-APPELLANT: DEVIN MCLAUGHLIN, Langrock Sperry & Wool,
LLP, Middlebury, VT.

*
The Clerk of Court is respectfully directed to amend the caption as set forth above.
 Appeal from a judgment of the United States District Court for the District of Connecticut

(Vanessa L. Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the July 30, 2021 judgment of the district court is AFFIRMED.

Defendant Aysia Ryan, who pleaded guilty to one count of conspiracy to transport and

possess stolen property, see 18 U.S.C. § 371, based on her participation in “grab-and-go” thefts

across New York and New England, appeals her 36-month prison sentence as procedurally and

substantively unreasonable given her 24–30 month advisory Sentencing Guidelines range. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal, to which we refer only as necessary to explain our decision to affirm.

I. Procedural Reasonableness

Although the procedural reasonableness of a sentencing is typically reviewed for abuse of

discretion, we apply the still more deferential plain error standard to Ryan’s claims because she

did not raise them before the district court. See United States v. Williams, 998 F.3d 538, 540 (2d

Cir. 2021) (articulating standard). A district court commits procedural error if, among other

reasons, it “‘selects a sentence based on clearly erroneous facts, or fails adequately to explain the

chosen sentence[,]’” United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (quoting United

States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)), particularly one “‘deviat[ing] from the Guidelines

range.’” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)).

Ryan alleges that her sentence was procedurally unreasonable because the district court:

(1) relied on a clearly erroneous fact in imposing the sentence; (2) failed to provide reasonable

notice of a Guidelines departure as required under Federal Rule of Criminal Procedure 32(h); and

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(3) punished her twice for the same conduct in imposing an above-Guidelines sentence. We

address each argument in turn and conclude that there was no plain procedural error.

A. Factual Findings Regarding Reckless Endangerment

Ryan argues that the district court increased her sentence based upon a clearly erroneous

factual finding that she drove the getaway car that dragged a store employee from the scene of the

August 27, 2020 theft. It is uncontroverted that Ryan was a passenger in the vehicle during that

theft. This does not manifest plain error because in applying a two-level enhancement for “reckless

endangerment during flight” under U.S.S.G. § 3C1.2 and in considering “the nature and

circumstances of the offense” under 18 U.S.C. § 3553(a)(1), the district court made clear that it

was referencing two offenses (a theft at one store and attempted theft at another) that occurred the

following day (on August 28), during which Ryan was the getaway driver, distinct from the

August 27 theft. Specifically, the district court relied upon the following undisputed facts: (1)

during the first August 28 theft in South Windsor, Ryan drove the getaway car and struck an

employee’s hand with the car’s side mirror; 1 and (2) in another attempted theft later that day in

Glastonbury, Ryan was again driving the getaway car when she hit a police car and another parked

car as she fled from the police. See App’x at 82, 109.

Ryan notes that, in a subsequent discussion of the dangerousness factor during its

explanation of the sentence, the district court stated that “[o]bviously, a person who drags another

person with a car or puts a car in gear when someone is standing in front of it, is a person from

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At the sentencing, the victim of this incident explained that, as he went around the front of the getaway
car to attempt to retrieve the stolen merchandise from Ryan and her co-conspirators, the following occurred:
“I was looking at [Ryan] in her eyes, and she was looking at me, and put the car into drive. And I said to
myself, I better move and get away from the front of the car. And I stood to the side of the car. Had she
sped off and I’d be standing still in front of that car, I may not be here today talking about this.” App’x at
98–99. The Pre-Sentence Report (“PSR”) also indicated that after this incident, police following Ryan
when she began to swerve the vehicle in a residential area terminated their pursuit due to safety concerns.

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whom the public needs to be protected.” Id. at 111. In light of the district court’s detailed

discussion of the two August 28 incidents and not the August 27 theft as support for the § 3C1.2

enhancement, we do not construe this statement as a finding that the defendant was the driver

(rather than a passenger) when the victim was dragged by the getaway car during that theft. Given

the content (including the use of the disjunctive) and context, this reference is more reasonably

understood to remark on the dangerous conduct of the conspiracy as a whole, which included

Ryan’s participation in the August 27 theft (even though she was not the driver on that occasion)

and her participation in the August 28 offenses (where she was the driver). In short, Ryan has

failed to show that there was a plain error related to the district court’s factual findings with respect

to her reckless conduct and its reliance on that conduct in determining the appropriate sentence.

B. Rule 32(h)

Ryan faults that the district court departed upward from her 24–30 month Sentencing

Guidelines range without providing the notice required by Federal Rule of Criminal Procedure

32(h). The argument fails because the district court’s 36-month sentence reflected a variance from

the Guidelines range which, unlike a departure, does not require Rule 32(h) notice. See Irizarry

v. United States, 553 U.S. 708, 714 (2008); see also United States v. Keller, 539 F.3d 97, 99 n.2

(2d Cir. 2008) (noting that terms “departure” and “variance” “are often used interchangeably” but

nonetheless are distinct).

We have repeatedly explained that a “departure . . . refers only to non-Guidelines sentences

imposed on the basis of factors within the framework set out in the Guidelines, whereas a variance

is a modification of the applicable Guidelines sentence that a District Court may find justified

under . . . sentencing factors extrinsic to the Guidelines—namely, those set forth in 18 U.S.C.

§ 3553(a).” United States v. Sealed Defendant One, 49 F.4th 690, 697 (2d Cir. 2022) (internal

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quotation marks and citation omitted). Here, although the district court used the term “upward

departure” at one point during its explanation of the reasons for the above-Guidelines sentence,

App’x at 112, as in our recent decision in Sealed Defendant One, the record “makes clear that the

district court relied on the section 3553(a) factors in imposing an above-Guidelines sentence,”

rather than an upward departure under the Guidelines, 49 F.4th at 697.

After calculating the applicable Guidelines range the district court did not mention any

consideration of an enumerated ground for an upward departure under the Guidelines, nor were

any discussed by the parties. Instead, in determining the appropriate sentence, the district court

evaluated the Section 3553(a) factors. The district court considered: the “aggressive and violent”

nature of the offenses; “[t]he emotional, physical, and financial harm done to the victims”; Ryan’s

role as the driver on “two occasions”; “[h]er history and characteristics”; that she had “suffered no

meaningful consequence” for “an almost unfathomable number of prior convictions”; and the

sentence’s “specific and general deterrence” purposes. App’x at 109–11. On this record, the

district court’s passing reference to a “departure” on one occasion at the end of its detailed

discussion of the Section 3553(a) factors does not transform a clear variance from the applicable

Guidelines range based upon those factors into an unspecified upward departure that would require

notice under Rule 32(h). See, e.g., Keller, 539 F.3d at 100 (“While the record shows that the

District Court used both ‘departure’ and ‘non-[G]uideline[s] sentence’ to describe the sentence it

imposed, it is also clear from the record that the District Court relied on its power under §

3553(a)—and not on any Guidelines provision—as a basis [for its sentence].”); accord United

States v. Horne, 552 F. App’x 44, 45–46 (2d Cir. 2014); United States v. Brass, 527 F. App’x 70,

72 (2d Cir. 2013). Indeed, the district court confirmed in its written statement of reasons that the

above-Guidelines sentence was a variance by indicating that it had imposed a sentence otherwise

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outside the sentencing guideline system (i.e., variance) and completing the specific section where

the district court delineates which Section 3553(a) factors supported the variance.

In sum, we are left with no doubt on this record that the district court’s above-Guidelines

sentence was based on the Section 3553(a) factors, rather than any upward departure within the

Guidelines system. Accordingly, as a variance, this sentence was not subject to Rule 32(h)’s notice

requirement.

C. Articulated Reasons for the Variance

Ryan further argues that the district judge erroneously increased her sentence above the

Guidelines range based on “the exact same conduct” used in applying the § 3C1.2 reckless

endangerment enhancement. Appellant’s Br. at 18.

We find this “impermissible double-counting” argument unpersuasive. Id. As long as the

district court sufficiently articulates its reasoning, it may deviate from the Guidelines range where

a sentencing enhancement “bears on the context in which the [conduct] occurred, [but] not on the

relative severity of [a defendant’s] conduct or its actual consequences.” Sealed Defendant One,

49 F.4th at 698; see also United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007), superseded by

statute on other grounds as recognized in United States v. Smith, 949 F.3d 60, 64 (2d Cir. 2020)

(noting that district courts may “impose[] a non-Guidelines sentence based upon section 3553(a)

factors already accounted for in the Guidelines range”).

Here, the district court determined that an above-Guidelines sentence was warranted based

on Ryan’s reckless endangerment conduct during the thefts that the Guidelines enhancement did

not fully capture. Specifically, although the enhancement applies for reckless endangerment of

one person on a single occasion, the district court emphasized that here Ryan was “[t]he reckless

driver of a vehicle on two occasions where the life and the physical and emotional well-being of

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other individuals were utterly disregarded . . . .” App’x at 109 (emphasis added). Moreover,

during those two incidents, Ryan’s conduct endangered individuals not only at the scene of the

crimes but also created further risk to others in her effort to avoid arrest by the police by weaving

through traffic and ramming both a police car and another parked car. Further, the reckless

endangerment enhancement applies even when there is no actual harm. But here the district court

found physical harm: following the South Windsor theft, Ryan put the car in gear with a store

employee standing in front of it and struck a victim’s hand as she pulled away. The district court

emphasized that Ryan specifically engaged in “aggressive and violent” conduct that “put the very

lives and well-being of the victims of these offenses, particularly those who were put in direct

physical threat and who were physically harmed[,] in potentially grave danger.” Id. at 109.

Thus, the district court adequately explained why Ryan’s reckless conduct was different

from an ordinary case covered by the Guidelines enhancement and did not procedurally err in

relying on that same conduct in imposing a sentence above the Guidelines range.

II. Substantive Reasonableness

It is well established that “when conducting substantive review, we take into account the

totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion,

and bearing in mind the institutional advantages of district courts.” Cavera, 550 F.3d at 190

(citing Rita v. United States, 551 U.S. 338, 354 (2007)). Therefore, we review the

substantive reasonableness of “all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion

standard.” Gall, 552 U.S. at 41. Under that standard, we find an abuse of discretion by the

sentencing court only when the sentence is “so shockingly high, shockingly low, or otherwise

unsupportable as a matter of law that allowing [it] to stand would damage the administration of

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justice.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks

and citation omitted).

Ryan’s 36-month sentence, which was six months above the high-end of a 24–30 month

Guidelines range, was not substantively unreasonable. Ryan was involved in 23 “grab-and go”

retail thefts, resulting in losses of over $40,000 attributable directly to her. As the district court

emphasized, Ryan’s conduct placed the lives and well-being of others in danger and it was

“imperative that the Court impose a sentence that reflects the seriousness of the dangerous offenses

she committed, offenses which were harmful, physically and emotionally and financially harmful

to other people.” App’x at 110. Moreover, Ryan had a lengthy criminal history and the district

court noted that the “leniency shown to the defendant in the past has been utterly disrespected and

treated as a ticket to break the law, a license to break the law.” Id. Thus, the district court explained

the need for the sentence to, inter alia, protect the public, as well as deter the defendant and others

from engaging in this type of criminal conduct. Given the factors identified by the district court,

36 months’ imprisonment was not “shockingly high,” Broxmeyer, 699 F.3d at 289 (internal

quotation marks omitted), but rather was “within the range of permissible decisions” based on the

facts presented at sentencing, United States v. Ingram, 721 F.3d 35, 37 (2d Cir. 2013) (internal

quotation marks and citation omitted). Accordingly, we conclude that the sentence was

substantively reasonable.

* * *

We have considered all of Ryan’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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