United States v. Nesbitt ( 2018 )

17-2569-cr (L)
United States v. Nesbitt
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
26th day of November, two thousand eighteen.
PRESENT: REENA RAGGI
PETER W. HALL,
RICHARD J. SULLIVAN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. Nos. 17-2569-cr (L)
17-2604-cr (Con)
KEESHAWN NESBITT, AKA BIG HOMIE,
Defendant-Appellant.
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FOR APPELLANT: ARTHUR R. FROST, Frost & Kavanaugh, P.C., Troy,
New York.
FOR APPELLEE: CARINA H. SCHOENBERGER, Assistant United States
Attorney, for Grant C. Jaquith, United States Attorney
for the Northern District of New York, Syracuse, New
York.
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Appeal from a judgment of the United States District Court for the Northern District of
New York (Kahn, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Keeshawn Nesbitt pled guilty without a plea agreement to three
counts of being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. §§
922(g), 924(a)(2). The district court sentenced him to 67 months’ imprisonment and 36
months’ supervised release on each of the three counts, to run concurrently. The court stated
that a sentence at the higher end of the applicable advisory Guidelines range was warranted
upon review of the 18 U.S.C. § 3553(a) factors because of Nesbitt’s criminal history and risk
to the community. Specifically, the court determined that “this sentence is sufficient, but not
greater than necessary, to meet the goals of sentencing, including the need for the sentence to
reflect the seriousness of the offense, promote the respect for the law and provide just
punishment for your offense and to afford adequate deterrence to criminal conduct, and finally
to protect the public from further crimes that you could commit.” J. App’x at 68. Defense
counsel made no objections.
Nesbitt challenges his 67-month sentence of imprisonment as substantively unreasonable.1
We assume the parties’ familiarity with the facts, record of prior proceedings, and arguments
on appeal, which we reference only as necessary to explain our decision to affirm.
1
Nesbitt’s brief states that the sentence imposed “was both procedurally and substantively
unreasonable,” Appellant’s Br. at 4, but makes no argument as to how the sentence was procedurally
unreasonable. We therefore have no argument to review on that issue.
2
The abuse of discretion “standard of review applies to appellate review of all sentencing
decisions.” Gall v. United States, 552 U.S. 38, 49 (2007). This Court has not decided whether
an abuse of discretion or plain error standard of review is to be applied where a substantive
reasonableness challenge is unpreserved, and we need not decide that question here because
Nesbitt’s challenge “fails on its merits.” United States v. Verkhoglyad, 516 F.3d 122, 134 (2d
Cir. 2008).
In determining whether a sentence imposed by the district court is substantively
reasonable, we are deferential and do not ask whether we would assign the same weight to a
factor the district court did. Instead, the inquiry is limited to whether that factor “can bear
the weight assigned it under the totality of circumstances in the case.” United States v.
Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc). “We will 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.” United States v. Ryan, 806 F.3d 691, 695
(2d Cir. 2015) (alteration omitted) (quoting United States v. Wagner-Dano, 679 F.3d 83, 95 (2d
Cir. 2012)). “[W]hile we have declined to adopt a per se rule, we recognize that in the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad
range of sentences that would be reasonable in the particular circumstances.” Id. (quoting
United States v. Ingram, 721 F.3d 35, 37 (2d Cir. 2013)).
The district court and the presentence report both calculated the guidelines range to be 57
to 71 months. At sentencing, the prosecution sought a guidelines range sentence and the
defense sought a term of 46 to 57 months. The district court’s sentence of 67 months’
imprisonment and 36 months of supervised release on each of the three counts, to run
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concurrently, is certainly located within the range of permissible decisions. It is not
substantively unreasonable.
Nesbitt points us to other § 922(g) cases in which we have affirmed a lesser sentence and
argues that the circumstances of those cases were more egregious than those of the instant
case. See United States v. Thomas, 628 F.3d 64 (2d Cir. 2010); United States v. Spratley, 665 F.
App’x 97 (2d Cir. 2016) (summary order). This argument, however, misses the mark. As
an initial matter, this Court has also approved sentences in other § 922(g) cases that were
longer than the one imposed here. See, e.g., United States v. Butters, 588 F. App’x 12, 13 (2d Cir
2014) (summary order). Moreover, given that “a reviewing court’s concern about
unwarranted disparities is at a minimum when a sentence is within the Guidelines range,”
Nesbitt falls far short of his burden in establishing an abuse of discretion by the district court.
United States v. Irving, 554 F.3d 64, 76 (2d Cir. 2009) (internal quotation marks and citation
omitted). At bottom, it is not for us to substitute our own judgment for that of the trial
court. Cavera, 550 F.3d at 189.
We have considered all Nesbitt’s arguments and conclude that they are without merit.
Accordingly, we AFFIRM the amended judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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