16‐1727
United States v. Haskins
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
ASUMMARY 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 1st day of November, two thousand
seventeen.
PRESENT: DENNIS JACOBS,
ROBERT D. SACK,
BARRINGTON D. PARKER,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 16‐1727
ANDRE HASKINS,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
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FOR APPELLANT: STEVEN Y. YUROWITZ; New York,
NY.
FOR APPELLEE: ALEX ROSSMILLER (Anna M.
Skotko, on the brief), for Joon H.
Kim, Acting United States Attorney
for the Southern District of New
York; New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Wood, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant‐appellant Andre Haskins (“Haskins”) appeals the judgment of
the district court revoking supervised release and sentencing him to the statutory
maximum of 24 months’ imprisonment and 12 months’ supervised release.
Haskins argues that his sentence was (1) procedurally unreasonable because the
district court failed to consider the factors enumerated in 18 U.S.C. § 3553(a) and
(2) substantively unreasonable because the court did not adequately explain the
above‐Guidelines sentence. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues presented for review.
Haskins was convicted in 2005 of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), and was sentenced by Judge Wood to 24
months’ imprisonment and three years’ supervised release. Haskins violated the
conditions of release when he committed the state crimes of obstructing
governmental administration and resisting arrest and when he failed to
cooperate with a mental health evaluation. Judge Wood resentenced Haskins on
December 14, 2011 to 18 months’ imprisonment and 16 months’ supervised
release. While serving his second term of supervised release, Haskins was
arrested and charged with robbery in the first, second, and third degrees, assault
in the second and third degrees, grand larceny in the fourth degree, and petit
larceny. On December 18, 2014, Haskins reported to court for a hearing on his
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violation of supervised release, but fled before the proceeding began.
On April 7, 2015, Haskins pleaded guilty to bail jumping, in violation of 18
U.S.C. § 3146(a)(1) and (b)(1)(A)(ii). The district court sentenced him to six
months’ imprisonment to run consecutively to a sentence of 12 months’
imprisonment on a violation of supervised release in connection with a separate
conviction. Haskins was released from custody and commenced his term of
supervised release on July 31, 2015; on September 26, 2015, he approached his
estranged wife and threatened her with a knife, stating that “I’ll kill you, I got
nothing to lose.” Haskins pleaded guilty to Menacing in the Second Degree, a
state crime. Although the Guidelines range for Haskins’ violation of supervised
release was five to eleven months’ imprisonment, Judge Wood sentenced him to
the statutory maximum of 24 months’ imprisonment to be followed by 12
months’ supervised release. This appeal followed.
We review sentencing decisions for both procedural and substantive
reasonableness. United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007).
Reasonableness review is “akin to review for abuse of discretion, under which
we consider whether the sentencing judge exceeded the bounds of allowable
discretion[,] . . . committed an error of law in the course of exercising discretion,
or made a clearly erroneous finding of fact.” United States v. Williams, 475 F.3d
468, 474 (2d Cir. 2007) (citations and quotation marks omitted) (alteration in
original). A district court commits procedural error by failing to calculate the
Guidelines range, making a mistake in the Guidelines calculation, treating the
Guidelines as mandatory, not considering the § 3553(a) factors, or relying on a
clearly erroneous finding of fact. See United States v. Cavera, 550 F.3d 180, 190
(2d Cir. 2008). “A district judge imposing a non‐Guidelines sentence . . . should
say why she is doing so, bearing in mind . . . that ‘a major departure [from the
Guidelines] should be supported by a more significant justification than a minor
one.’” Id. at 193 (quoting Gall v. United States, 552 U.S. 38, 50 (2007) (alteration
in original).
Substantive reasonableness concerns the length of the sentence imposed in
light of the § 3553(a) factors. See Villafuerte, 502 F.3d at 206. We review a
sentencing decision’s substantive reasonableness under an abuse‐of‐discretion
standard, see Gall, 552 U.S. at 51, “tak[ing] into account the totality of the
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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. A reviewing court may not “substitute [its] own
judgment for the district court’s on the question of what is sufficient to meet the
§ 3553(a) considerations in any particular case,” and should “set aside a district
court’s substantive determination only in exceptional cases where the trial court’s
decision cannot be located within the range of permissible decisions.” Id. at 189
(citation and quotation marks omitted) (emphasis in original).
Haskins failed to raise any procedural objections during the sentencing,
see app. 25‐26, and we therefore review for plain error. See Villafuerte, 502 F.3d
at 208. Haskins’ argument that the district court did not consider the § 3553(a)
factors is belied by the record. “[T]he law does not impose any rigorous
requirement of specific articulation on sentencing judges with respect to their
consideration of § 3553(a) factors.” United States v. Verkhoglyad, 516 F.3d 122,
131 (2d Cir. 2008) (citation and quotation marks omitted). Here, the district court
specifically addressed “the factors under Section 3553” and stated that “[t]he
charge [was] serious in the context of the defendant’s prior attacking [of]
people.” App. 25. The court also considered Haskins’ history and
characteristics, and cited the need to protect the public. Id.
Nor is there support for Haskins’ assertion that the district court failed to
consider the Guidelines range. “[W]e will not assume, simply from the fact that
the district court did not reference the [applicable Guidelines range], that it failed
to satisfy its § 3553(a)(4)(B) obligation.” Verkhoglyad, 516 F.3d at 129 (citation
omitted). Haskins’ violation report specified the five to eleven months
Guidelines range, which neither party disputed, and which (contrary to Haskins’
assertion) was referenced multiple times during the proceeding. See App. 13‐15.
We also reject Haskins’ further contention that the district court “simply
punished [Haskins] for his inability to control his anger.” Judge Wood expressed
sympathy for his mental health issues, which she balanced against the need to
“protect the public” and her concern that “lenien[cy] in the past” had failed to
deter his criminal conduct. App. 25. Haskins repeatedly betrayed the trust
reflected in his lenient sentences, and the district court reasonably concluded that
an upward departure from the Guidelines range was warranted. See
Verkhoglyad, 516 F.3d at 130.
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Accordingly, Haskins has failed to show that the district court’s sentence
was procedurally unreasonable.
Haskins claims substantive unreasonableness because the district court did
not articulate a “significant justification” for departing from the Guidelines
range. Haskins cites United States v. Sindima for the proposition that “sentences
for probation violations are not intended to punish defendants for the conduct
underlying the violation as if that conduct were being sentenced as new federal
criminal conduct.” 488 F.3d 81, 86 (2d Cir. 2007) (citation and quotation marks
omitted). But Sindima does not foreclose an upward departure from the
Guidelines range. Rather, the Court’s “primary concern was that the challenged
sentence punished the defendant for the ‘egregious’ nature of his violation
conduct instead of sanctioning ‘primarily the defendant’s breach of trust’ as
provided by Commission policy.” Verkhoglyad, 516 F.3d at 135 (quoting
Sindima, 488 F.3d at 86). When a factor (such as breach of trust) is already
included in the calculation of the Guidelines range, a district court “must
articulate specifically the reasons that this particular defendantʹs situation is
different from the ordinary situation covered by the [G]uidelines calculation” in
order to justify an upward or downward departure. Sindima, 488 F.3d at 87.
Leniency on previous sentences may justify an upward departure for
violating supervised release. See Verkhoglyad, 516 F.3d at 129. Haskins claims
that “he received no departure at all” on his original sentence; but the record
shows that for his previous violation, the sentence was 12 months despite a
Guidelines range of 30 to 37 months; and for the underlying bail jumping charge,
the sentence was six months despite a Guidelines range of 10 to 16 months.
Deference is owed to a sentencing court’s decision that the § 3553(a) factors
justify a variance. This “applies with particular force to probation violation
proceedings, where the sentencing judge has unique insights into both the
circumstances that prompted the initial non‐incarceratory sentence and the
degree to which the violation represents a serious betrayal of the courtʹs trust
and a risk of future criminal conduct.” Verkhoglyad, 516 F.3d at 136. The
district court’s explication of the length of the sentence was brief, but we
conclude that it was sufficient. The court noted its prior leniency, underscoring
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the extent of Haskins’ breach of trust. In addition, the court emphasized its
familiarity with Haskins’ criminal history and his history of attacking people,
noted that the most recent charge was a serious one, and stressed the need to
protect the public from further crimes. These considerations justify the district
court’s decision to sentence Haskins to an above‐Guidelines sentence and to
impose 12 months of supervised release.
Accordingly, we find that Haskins’ two‐year sentence is within the range
of permissible decisions and is not substantively unreasonable.
The Court has also considered Haskins’ remaining arguments and
concluded 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
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