22-1708-cr
United States v. Pugh
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 25th day of March, two thousand twenty-four.
PRESENT: RAYMOND J. LOHIER, JR.,
STEVEN J. MENASHI,
Circuit Judges,
LEWIS J. LIMAN,
District Judge. *
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UNITED STATES OF AMERICA,
Appellee,
v. No. 22-1708-cr
TAIROD NATHAN WEBSTER
PUGH,
Defendant-Appellant.
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*
Judge Lewis J. Liman, of the United States District Court for the Southern District of
New York, sitting by designation.
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FOR APPELLEE: LORENA MICHELEN, Assistant
United States Attorney (Susan
Corkery, Assistant United
States Attorney, on the brief), for
Breon Peace, United States
Attorney for the Eastern
District of New York,
Brooklyn, NY
FOR DEFENDANT-APPELLANT: SUSAN G. KELLMAN, Law
Offices of Susan G. Kellman,
Brooklyn, NY
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Nicholas G. Garaufis, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant-Appellant Tairod Nathan Webster Pugh appeals from an
August 3, 2022 judgment of the United States District Court for the Eastern
District of New York (Garaufis, J.) convicting him, after a jury trial, of attempting
to provide material support to a foreign terrorist organization, in violation of 18
U.S.C. § 2339B(a)(1) (Count One), and obstructing and attempting to obstruct an
official proceeding, in violation of 18 U.S.C. §§ 1512(c)(1) and (c)(2) (Count Two).
This is Pugh’s second appeal. In his first appeal, we affirmed the judgment of
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conviction, but vacated and remanded for resentencing, instructing the District
Court to state in open court its reasons for imposing a 420-month sentence.
United States v. Pugh, 945 F.3d 9, 15, 28 (2d Cir. 2019) (“Pugh I”). On remand, the
District Court sentenced Pugh principally to 180 months’ imprisonment on
Count One, and 60 months’ imprisonment on Count Two, to be served
consecutively. On appeal, Pugh challenges his new 240-month sentence as
procedurally and substantively unreasonable. We assume the parties’ familiarity
with the underlying facts and the record of prior proceedings, to which we refer
only as necessary to explain our decision to affirm.
Where, as here, a defendant fails to raise a procedural challenge at the time
of sentencing, we review such a challenge for plain error. 1 United States v.
Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). “A sentence is procedurally
unreasonable if the district court fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory,
fails to consider the § 3553(a) factors, selects a sentence based on clearly
erroneous facts, or fails adequately to explain the chosen sentence.” United States
1Pugh contends that the standard of review is abuse of discretion rather than plain
error under the circumstances of his case. Although we think that plain error applies,
Pugh’s procedural challenge would fail under either standard.
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v. Smith, 949 F.3d 60, 66 (2d Cir. 2020) (quotation marks omitted). “[W]hen a
defendant has been convicted of multiple counts, the sentencing judge should set
forth why a sentence equal to the statutory maximum on one count will not
produce a sufficient sentence within the meaning of 18 U.S.C. § 3553(a).” Pugh I,
945 F.3d at 27.
Pugh argues that the District Court again failed adequately to explain
“why a sentence equal to the statutory maximum on [Count One] [would] not
produce a sufficient sentence within the meaning of 18 U.S.C. § 3553(a).”
Appellant’s Br. 21 (quotation marks omitted). We are not persuaded.
First, the District Court considered all of the § 3553(a) factors, noting that
“the nature and circumstances of [Pugh’s] offense [were] significant,” App’x 414,
and that his sentence needed to “reflect the seriousness of the offenses, promote
respect for the law, and provide just punishment,” App’x 415. The District Court
explained that the conduct underlying Count Two was “truly a separate
circumstance that must be taken extremely seriously,” App’x 417, and that
Pugh’s sentences “must run consecutively” both “because the statutory
maximum on Count One does not produce a sufficient sentence” and “because
the idea that one can hide the activity that he was engaged in[,] which ran afoul
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of the law in Count One[,] by destroying evidence that would be used against
him sends a message that is not acceptable,” App’x 420; cf. United States v.
Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006) (“[I]f a district court were
explicitly to conclude that two sentences equally served the statutory purpose of
§ 3553, it could not . . . impose the higher.”). The District Court’s sentence on
remand thus appears to comport with our earlier instructions in Pugh I. We
therefore reject Pugh’s procedural challenge.
We conclude that Pugh’s sentence was also substantively reasonable.
“[O]ur review of a sentence for substantive reasonableness is particularly
deferential, and we will set aside only those sentences that are so shockingly
high, shockingly low, or otherwise unsupportable as a matter of law that
allowing them to stand would damage the administration of justice.” United
States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (quotation marks omitted).
Pugh argues that his sentence is substantively unreasonable “because the
reasons offered by the district court to justify going beyond the statutory
maximum on Count 1 to impose a consecutive 5-year sentence on Count 2 cannot
bear the weight assigned to them by the district court.” Appellant’s Br. 23.
Again, we disagree. “[T]he weight given to any single factor is a matter firmly
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committed to the discretion of the sentencing judge and is beyond our review.”
United States v. Capanelli, 479 F.3d 163, 165 (2d Cir. 2007) (quotation marks
omitted).
Pugh separately insists that his sentence in any event cannot be located
within the range of permissible decisions. The District Court determined that the
applicable Guidelines range for Pugh’s offense was 360 to 420 months; it
ultimately imposed a sentence of 240 months’ imprisonment. Pugh’s sentence
thus represented a 120-month downward variance from the low end of the
applicable Guidelines range. In imposing sentence, the District Court found that
Pugh, a forty-six-year-old Air Force veteran when the crimes took place, sought
to “embrace, assist and advance the objectives of a homicidal terrorist
organization that is responsible for thousands of deaths,” and, when interdicted,
“attempt[ed] to destroy evidence” of his efforts. App’x at 416–17. Even after he
was convicted, the District Court found, Pugh “demonstrated [no] remorse or
regret for what he did.” App’x 418. We conclude that Pugh’s sentence was
reasonable given the “totality of the circumstances.” United States v. Cavera, 550
F.3d 180, 190 (2d Cir. 2008) (en banc).
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We have considered Pugh’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, the judgment of the District Court
is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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