United States v. Degroate ( 2019 )

18‐2236‐cr
United States v. Degroate
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 18‐2236‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
LAMEIK DEGROATE, AKA LA GUNZ,
Defendant‐Appellant,
KERVON BLANCHARD, AKA SWURVE, WALTER J. COBBS, AKA MISTER,
JACQULINE CUMMINES, AKA JACQUELINE CUMMINGS, SARAH
DELLAROCCO, TONI M. DELLAROCCO, ROLAND EVANS, AKA GREEN
EYES, BRIANNA GRIMES, MARVIN D. HILL, AKA HEATERS, AKA REGGIE,
JOSEF M. JARVIS, AKA COMF, JABREE JONES, AKA BREEZY, MELISSA B.
MAJEWSKI, KEVIN D. MCGOUGH, AKA KEV, JAMELL S. MODEST, AKA
MONEY MEL, LARELL A. MOODY, AKA RELLY, AKA EL‐RELLS, AKA L‐
RELLZ, ANDRE JR. PORTER, AKA LEGEND, DARIUS G. SMITH, AKA “D,”
ANTONIO STURDIVANT, AKA BUTCHIE, AKA HOT ONES, QARAAN WEST,
AKA Q‐BERROW,
Defendants.
On Appeal from the United States District Court
for the Northern District of New York
SUBMITTED: SEPTEMBER 16, 2019
DECIDED: OCTOBER 4, 2019
Before: NEWMAN, CABRANES, and LYNCH, Circuit Judges.
Defendant‐Appellant Lameik Degroate (“Degroate”) appeals
from a judgment of the United States District Court of the Northern
District of New York (Thomas J. McAvoy, Judge) sentencing him to an
18‐month term of imprisonment following a second revocation‐of‐
supervised‐release hearing. Degroate argues that the District Court
abused its discretion by denying him an opportunity to present a
mitigation witness at his revocation hearing. He further argues that his
sentence is procedurally unreasonable because one of the conditions
that he admitted to violating was imposed unlawfully. Specifically, he
claims that the District Court impermissibly delegated its judicial
authority to the U.S. Probation Office when it imposed a special curfew
condition, and that Degroate’s subsequent violations of this curfew
condition were not a proper basis for revoking his supervised release.
Finally, Degroate argues that his above‐guideline sentence is
substantively unreasonable because the District Court placed undue
weight on his perceived dangerousness and failed to account for other
mitigating factors. For the reasons set forth below, we find no merit in
2
Degroate’s arguments. Accordingly, we AFFIRM the District Court’s
judgment.
Karen Folster Lesperance, Assistant United
States Attorney, for Grant C. Jaquith, United
States Attorney, Northern District of New
York, Albany, NY, for Appellee.
James P. Egan, Assistant Federal Public
Defender, for Lisa A. Peebles, Federal Public
Defender, Syracuse, NY, for Defendant‐
Appellant.
JOSÉ A. CABRANES, Circuit Judge:
Defendant‐Appellant Lameik Degroate (“Degroate”) appeals
from a judgment of the United States District Court of the Northern
District of New York (Thomas J. McAvoy, Judge) sentencing him to an
18‐month term of imprisonment following a second revocation‐of‐
supervised‐release hearing. Degroate argues that the District Court
abused its discretion by denying him an opportunity to present a
mitigation witness at his revocation hearing. He further argues that his
sentence is procedurally unreasonable because one of the conditions
that he admitted to violating was imposed unlawfully. Specifically, he
claims that the District Court impermissibly delegated its judicial
authority to the U.S. Probation Office (“USPO” or “Probation Office”)
3
when it imposed a special curfew condition, and that Degroate’s
subsequent violations of this curfew condition were not a proper basis
for revoking his supervised release. Finally, Degroate argues that his
above‐guideline sentence is substantively unreasonable because the
District Court placed undue weight on his perceived dangerousness
and failed to account for other mitigating factors. For the reasons set
forth below, we find no merit in Degroate’s arguments. Accordingly,
we AFFIRM the District Court’s judgment.
I. BACKGROUND
On March 28, 2012, Degroate was charged in a two‐count
indictment with conspiring to violate the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C. §
1962(d) (Count One), and conspiring to distribute and possess with the
intent to distribute 280 grams or more of a mixture or substance
containing cocaine base (crack), in violation of 21 U.S.C. § 846 (Count
Two). On April 26, 2013, pursuant to a written plea agreement,
Degroate pleaded guilty to Count One of the indictment. On
September 9, 2013, he was sentenced to a 73‐month term of
imprisonment, to be followed by a three‐year term of supervised
release. On April 14, 2015, pursuant to 18 U.S.C. § 3582(c)(2),1 the
1Section 3582(c)(2) provides that “in the case a defendant who has been
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . . upon motion of the
defendant or the Director of the Bureau of Prisons, or on its own motion, the court
may reduce the term of imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if such a reduction is consistent
4
District Court reduced Degroate’s sentence to a 63‐month term of
imprisonment followed by a three‐year term of supervised release
based on a retroactive lowering of the applicable sentencing guideline
range authorized by new legislation.
A. Revocation of Degroate’s First Term of Supervised Release
Degroate completed his term of imprisonment and commenced
supervision on November 18, 2016. Two months later, Degroate
violated the terms of his supervised release by testing positive for
alcohol. Degroate would subsequently accumulate seven violations of
supervised release.2 In response to these violations, and upon consent,
the District Court modified Degroate’s conditions of supervised
release to include a temporary curfew and participation in a mental
health program and residential “reentry” program. Degroate was soon
removed from the reentry program for, inter alia, threatening a staff
member with shooting sounds and statements such as “you’re going
to get yours” and “[you’re a] dead man walking.”3
On August 28, 2017, the USPO filed a petition to revoke
Degroate’s supervised release. At the October 10, 2017 revocation
with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2).
2These violations included two incidents of new criminal conduct (arising
from two traffic stops), two incidents of failure to report “police contact” to the
Probation Office, a curfew violation, association with a felon, and expulsion from a
mandated residential reentry program.
3 Ohio App. 88.
5
hearing, Degroate admitted to three violations of the conditions of his
supervised release: (1) failing to complete a four‐month residential
reentry program; (2) associating with felons; and (3) failing to report
contact with police to the USPO. The District Court revoked
Degroate’s supervised release and sentenced him to imprisonment for
a term of eight months, to be followed by a 24‐month term of
supervised release.4 In addition to the standard conditions of
supervised release, the District Court also required that Degroate
“comply with a curfew commencing on a date and under conditions
to be set by the probation officer.”5 Degroate did not object to this
special condition at the revocation hearing.
B. Degroate Violates the Conditions of his Second Term of
Supervised Release
Degroate commenced his second term of supervised release on
April 27, 2018. Approximately three weeks later, Degroate was
interviewed by local police at a strip club, where he had been
associating with a twice‐convicted felon past curfew. On June 5, 2018,
he consented to a modification of the terms of his supervision.
Specifically, Degroate agreed to comply with a renewed two‐month
curfew “commencing on a date and under conditions to be set by the
4 Based on Degroate’s grade C violations and his criminal history category
of II, his advisory Guideline range of imprisonment was four to ten months. See
U.S.S.G. § 7B1.4(a). His maximum statutory term of imprisonment was 24 months.
See 18 U.S.C. § 3583(e)(3).
5 Ohio App. 107.
6
probation officer.”6 He further consented to the use of “[l]ocation
and/or monitoring technology” to monitor his compliance with the
curfew.7 On June 6, 2018, the District Court ordered the agreed‐upon
modifications to the terms of supervised release.
On June 29, 2018, the USPO received an alert from the electronic
monitoring company that Degroate had been tampering with his
monitoring bracelet. The USPO would later learn that Degroate had in
fact used a screwdriver to remove the pins from his ankle bracelet.
Degroate was immediately summoned to the Probation Office, where
he was equipped with a new bracelet and instructed to remain on
“lock‐down” for the weekend. Degroate left his home twice during the
lock‐down: once on June 30 to visit a private residence and the Family
Dollar store, and again on July 1 to sit on his back porch in order to
escape the heat of his nonair‐conditioned home.
On July 2, 2018, the Probation Office filed a second petition to
revoke Degroate’s supervised release based on three violations: (1)
location monitoring violations; (2) a curfew violation; and (3)
association with a felon.
6 Id. at 111.
7 Id.
7
C. Degroate’s Second Revocation Hearing and Sentencing
The District Court held a final supervised release revocation
hearing on July 20, 2018, at which Degroate admitted to the electronic
monitoring violations and the curfew violation.
Before delivering his argument concerning sentencing,
Degroate’s counsel requested that Degroate’s mother be given the
opportunity to speak. Judge McAvoy declined this request, explaining
that while “[i]t’s not that she wouldn’t have something that I would
want to hear . . . over the 32 years that I have been doing this, we have
never allowed . . . somebody [to] speak on behalf of the defendant
unless that somebody were representing him as counsel or in another
capacity.”8 Judge McAvoy further explained that allowing the
defendant’s friends and relatives to speak would lead to something
“like a trial to listen to other people tell us about what their opinion
would be as to what I should do with the defendant.”9 As Judge
McAvoy concluded, “the rule has been, and it’s never been breached,
that at sentencing, no one but the defendant [and] defense counsel can
speak — and the victims, of course, have a statutory right to speak. . .
. That’s the rule and we have to follow the rule. I just don’t want to be
inundated with 50 other people.”10 Degroate’s counsel thanked the
District Court for its consideration and proceeded to request that the
8 Id. at 121.
9 Id.
10 Id.
8
District Court sentence Degroate to time‐served or a below‐guideline
sentence. The Government, in turn, requested a sentence of “at least 10
months if not an above‐guideline sentence.”11 The District Court
ultimately sentenced Degroate to an above‐guideline sentence of 18
months’ imprisonment, to be followed by a 10‐month term of
supervised release.12
On appeal, Degroate contends that his 18‐month sentence is
both procedurally and substantively unreasonable. First, he argues
that the District Court procedurally erred by declining counsel’s
request to have Degroate’s mother address the court at the July 20,
2018 revocation hearing. Second, he claims that the District Court
impermissibly delegated its judicial authority to the Probation Office
when it imposed a curfew “commencing on a date and under
conditions to be set by the probation officer,” and that any subsequent
violation of this invalid condition was not a proper basis for
revocation. Finally, Degroate challenges the substantive
reasonableness of his above‐guideline sentence, claiming that the
District Court focused exclusively on the seriousness of Degroate’s
offense without taking into account mitigating factors such as the
nature and circumstances of the offense and the history and
characteristics of the defendant.
11 Id. at 128.
12 Based on Degroate’s grade C violations and his criminal history category
of II, his advisory Guideline range of imprisonment was four to ten months. See
U.S.S.G. § 7B1.4(a). His maximum statutory term of imprisonment was 24 months.
See 18 U.S.C. § 3583(e)(3).
9
II. DISCUSSION
A. Standards of Review
“We review the procedural and substantive reasonableness of a
sentence under a deferential abuse‐of‐discretion standard.”13 As we
have frequently observed,“[a] district court has abused its discretion if
it based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence, or rendered a decision that
cannot be located within the range of permissible decisions.”14
“A district court commits procedural error where it fails to
calculate (or improperly calculates) the Sentencing Guidelines range,
treats the Sentencing Guidelines as mandatory, fails to consider the [18
U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous
facts, or fails adequately to explain the chosen sentence.”15
In examining the substantive reasonableness of a sentence, we
review the length of the sentence imposed to determine whether it
13 United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018).
14In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks,
alteration, and citation omitted); see also In re City of New York, 607 F.3d 923, 943 n.21
(2d Cir. 2010) (explaining that “abuse of discretion” is a nonpejorative “term of
art”).
15 United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012).
10
cannot be located within the range of permissible decisions.”16 We
focus in particular on a “district court’s explanation of its sentence in
light of the factors contained in 18 U.S.C. § 3553(a),”17 and “whether a
factor relied on by a sentencing court can bear the weight assigned to
it.”18 Our review for substantive reasonableness is “particularly
deferential,” and we have said that will set aside a sentence as
substantively unreasonable if it is “so shockingly high, shockingly low,
or otherwise unsupportable as a matter of law that allowing [it] to
stand would damage the administration of justice.”19
Finally, where a defendant fails to raise his procedural
objections at the time of sentencing, we review for plain error.20 “To
establish plain error, a defendant must demonstrate that: “(1) there is
an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the [defendant’s] substantial
rights, which in the ordinary case means it affected the outcome of the
United States v. Matta, 777 F.3d 116, 124 (2d Cir. 2015) (internal quotation
16
marks omitted).
17 Id. (internal quotation marks omitted).
United States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009) (internal quotation
18
marks omitted).
19United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal
quotation marks omitted).
20 United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008).
11
district court proceedings; and (4) the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”21
B. Procedural Reasonableness
1. Denying Degroate’s Mother an Opportunity to
Address the District Court at the July 20, 2018
Revocation Hearing
Degroate contends that the District Court abused its discretion
by denying his mother an opportunity to address the court at his July
20, 2018 revocation hearing. Degroate failed to object to this alleged
procedural error. Accordingly, we review for plain error.
Pursuant to Federal Rule of Criminal Procedure 32.1(b)(2)(E), a
supervisee must be given “an opportunity to make a statement and
present any information in mitigation” at his revocation hearing.
Degroate contends that the phrase “any information in mitigation”
requires that he be allowed to present live testimony from friends or
family members who can speak to Degroate’s character. We conclude
that a supervisee’s right of allocution at his revocation hearing does
not include the right to call character witnesses.
In 2005, Rule 32.1(b)(2)(E) was amended to explicitly recognize
a supervisee’s right to allocution at a revocation hearing. Prior to this
amendment, Courts of Appeals had divided on the question of
21United States v. Boyland, 862 F.3d 279, 288–89 (2d Cir. 2017) (internal
quotation marks and alterations omitted).
12
whether, in the absence of an explicit provision for allocution rights, a
supervisee was entitled to present mitigating information at a
revocation hearing. Those courts that had upheld such a right had
done so by incorporating the right of allocution under Rule 32—which
governs post‐conviction sentencing—into Rule 32.1. But as one Court
of Appeals observed, the problem with the incorporation approach
was that it would require application of other provisions specifically
applicable to sentencing proceedings under Rule 32, but not expressly
contemplated by Rule 32.1.22
The Advisory Committee on Rules of Criminal Procedure (the
“Committee”) sought to remedy this issue by amending Rule 32.1 to
explicitly provide for a supervisee’s right to allocution at his
revocation hearing.23 But there is no indication that in so doing, the
Committee intended to expand the scope of the right to allocution at
Rule 32.1(b)(2) revocation hearings beyond what a defendant is
entitled to at a Rule 32 post‐conviction sentencing.
22 See United States v. Frazier, 283 F.3d 1242, 1245 (11th Cir. 2002) (“Were we
to hold that Rule 32.1 incorporates all of the provisions of Rule 32, the sentencing
court would not only have to give the defendant a right to allocution, it would have
to require presentence investigation reports along with all of the other demands of
the rule.”).
23 See Fed. R. Crim. P. 32.1, Committee Notes on Rules — 2005 Amendment
(explaining that the amendments to Rule 32.1(b) were “intended to address a gap”
in the rule and to explicitly recognize the “importance of allocution . . . at Rule
32.1(b)(2) revocation hearings”).
13
Rule 32 gives only four parties an explicit right to speak at
sentencing: the defendant’s attorney, the defendant, the Government,
and any victims who may be present. 24 Other Courts of Appeals to
have confronted the question of whether Rule 32 admits other
character witnesses an opportunity to speak at sentencing has
concluded that it does not, and we agree.25 To allow such testimony
would potentially result in a mini‐trial of the defendant’s character
following the trial of his guilt.
24 See Fed. R. Crim. P. 32(i)(4)(A), (B).
25 See e.g., United States v. Contreras‐Delgado, 913 F.3d 232, 240 (1st Cir. 2019)
(“[W]hile a defendant enjoys a right to due process at sentencing and the right to
speak or present any information to mitigate the sentence, a defendant has no right
to insist on calling witnesses on his behalf.”) (internal citations and quotation marks
omitted); United States v. Cunningham, 883 F.3d 690, 699 (7th Cir. 2018) (holding that
Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) does not establish a right to call
witnesses in mitigation for any purpose); United States v. Cruzado‐Laureano, 527 F.3d
231, 238 (1st Cir. 2008) (“Federal Rule of Criminal Procedure 32 does not give
defendants the right to call witnesses in their behalf at sentencing. The rule only
requires the court to allow the defendant and his attorney to speak.”); United States
v. Claudio, 44 F.3d 10, 16 (1st Cir. 1995) (“[T]here is no automatic right to present
live testimony at sentencing.”); United States v. Heller, 797 F.2d 41, 43 (1st Cir. 1986)
(“Although the defendant must be given the chance to inform the court of any
mitigating circumstances, he does not have the right to have others testify for him
at sentencing.”); United States v. Jackson, 700 F.2d 181, 191 (5th Cir. 1983) (“The
defendant must be given the chance to inform the court of any mitigating
circumstances, but we see little advantage to be gained by allowing the defendant
to have others testify for him at sentencing. In fact, such a judicial extension of the
right of allocution would amount to a trial of the defendant’s character following
the trial of his guilt. We refuse to allow that extension.”).
14
Moreover, the text of Rule 32.1(b)(2)(E) entitles the defendant to
“present any information in mitigation” (emphasis added); it does not
give him the right to dictate the means by which such information is
presented. That language clearly distinguishes the right to present
information from the supervisee’s opportunity to “make a statement,”
i.e., to speak, at a hearing. The District Court here did not prevent
Degroate from including letters from family members (including his
mother) or others as part of his written sentencing submission to the
District Court, or from having his attorney present any information
that he or his mother wanted conveyed to the court.
We identify no compelling reason to interpret the right to
allocution at a post‐conviction sentencing hearing more broadly than
the right to allocution at a revocation hearing. In sum, we conclude
that a supervisee does not have the right to expand allocution by
presenting mitigation witnesses at a revocation hearing, and that the
District Court did not err, much less plainly err, by denying Degroate’s
request to have his mother speak at his revocation hearing.26
26 Of course, this holding does not preclude a district court from granting a
defendant’s request to call mitigation witnesses. We merely clarify that the
defendant is not entitled to call mitigation witnesses as of right. Accordingly, the
denial of such requests is not error.
15
2. Whether the District Court Impermissibly
Delegated its Judicial Authority to the Probation
Office in Imposing a Curfew as a Special Condition
of Supervised Release
Degroate next argues that his curfew violation was not a
permissible basis for revoking his supervised release because the
curfew condition was imposed unlawfully in the first place.
Specifically, Degroate contends that the District Court unlawfully
delegated its judicial authority to the Probation Office when it
imposed a special condition of supervised release requiring that
Degroate “comply with a curfew commencing on a date and under
conditions to be set by the probation officer.”27 Degroate did not
challenge this curfew condition when it was imposed at his first
revocation hearing on October 10, 2017, nor did he challenge this
condition when he was first charged with violating his curfew by
associating with a known felon at a strip club, past his curfew. Finally,
Degroate did not challenge the lawfulness of the curfew condition at
27App. 107. There is no significant variation between the District Court’s
written judgment and its oral pronouncement of this condition at the October 10,
2017 revocation hearing: “You shall comply with a curfew commencing on a date
and under conditions to be set by the probation officer.” Id. at 100. See generally
United States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004) (reciting the general rule that
“in the event of variation between an oral pronouncement of sentence and a
subsequent written judgment, the oral pronouncement controls”).
16
his final revocation hearing on July 20, 2018. Thus, because Degroate
has forfeited this argument, we review for plain error.28
It is well‐established that “a district court may not delegate to
the Probation [Office] decisionmaking authority which would make a
defendant’s liberty itself contingent on a probation officer’s exercise of
discretion.”29 A district court may, however, delegate to the Probation
Office “decisionmaking authority over certain minor details of
supervised release.”30
In deciding whether a district court has unlawfully delegated its
judicial authority, we focus on the language employed by the district
court. Where a district court has unequivocally mandated or
authorized (based on future contingencies)31 a restriction on the
releasee’s liberty, we will not disturb the special condition of
supervised release. Where, however, the district court has left to a
probation officer the ultimate decision of whether to restrict the
28 United States v. Brown, 843 F.3d 74, 81 (2d Cir. 2016) (“If a party’s failure to
object is simply a matter of oversight, then such oversight qualifies as a correctable
forfeiture. If a party forfeits an argument, we review for plain error.” (internal
quotation marks, alterations, and citation omitted)).
29Matta, 777 F.3d at 122; accord United States v. Peterson, 248 F.3d 79, 85 (2d
Cir. 2001).
30 Matta, 777 F.3d at 122.
See United States v. Young, 910 F.3d 665, 671 (2d Cir. 2018) (upholding a
31
special condition authorizing treatment if indicated by subsequent testing and
evaluation).
17
defendant’s liberty, we must vacate the condition of supervised release
as improvidently imposed.
Here, the District Court unambiguously authorized a restriction
on Degroate’s liberty—“You must comply with a curfew”32—and left
to the Probation Office’s discretion authority to decide such details as
the curfew’s start date and nightly duration.33 In short, the District
Court did not unlawfully delegate its judicial authority to the
Probation Office by allowing it to decide the days and precise timing
of the mandatory curfew.
Notwithstanding this lawful delegation of decisionmaking
authority to the Probation Office, it is possible, as Degroate suggests,
that the Probation Office exceeded its delegated authority by imposing
a total “lock‐down” from June 30 to July 1, 2018. As discussed above,
Degroate twice violated this lock‐down by traveling to the Family
Dollar Store and by sitting on his back porch. Assuming, arguendo, that
the Probation Office exceeded its delegated supervisory authority by
confining Degroate to his residence for an entire weekend, then
arguably the District Court should not have considered his lock‐down
violations as grounds for revoking his supervised release.
32 Ohio App. 107.
33 Contra United States v. Levy, 738 F. App’x 724 (2d Cir. 2018) (non‐
precedential summary order) (striking the following condition: “They [(the
Probation Office)] tell you have to stay home at a certain hour or curfew, you have
to obey.”).
18
Upon review of the record, it appears that Degroate’s lock‐down
violations did not “affect the outcome”34 of the District Court’s
hearing. First, the lock‐down violations were just two of several
violations that the District Court considered at the July 20, 2018
revocation hearing. Indeed, Degroate admitted to, inter alia, tampering
with his electronic monitoring device in violation of the condition that
he submit to electronic monitoring.35 He also admitted to violating his
curfew by patronizing a strip club with a convicted felon at 1:53 a.m.
Based on the revocation hearing transcript, the District Court
appeared to focus on the totality of Degroate’s contemptuous conduct,
and not on any individual violation. Second, the District Court actually
agreed with Degroate’s counsel that the lock‐down violations were not
particularly brazen:
Counsel: [I]t’s worth noting that during this
period of time he was living in a house that
did not have any A.C. and at a time when it
was very, very hot. It was in the middle of a
pretty significant heat spell.
34 Boyland, 862 F.3d at 288 (internal quotation marks omitted).
35 On June 6, 2018, upon consent of Degroate and the Probation Office, the
District Court modified Degroate’s conditions of supervised release to require
electronic monitoring in order to monitor Degroate’s compliance with the curfew
requirement. Degroate does not challenge the electronic monitoring component of
his modified curfew condition on appeal.
19
Court: That is worth noting. I agree with
you.36
Finally, the Government never so much as mentioned the lock‐
down violations at the July 20, 2018 hearing. Instead, it focused on
Degroate’s curfew violation (i.e., his patronage of a strip a club at 1:53
a.m.) and his “literally tak[ing] his screwdriver to that electronic
monitoring device and remov[ing] it from his person.”37
In sum, absent any indication that the District Court paid any
heed to the relatively trivial lock‐down violations, such error cannot
be said to have affected the outcome of the proceedings.
C. Substantive Reasonableness
Finally, Degroate argues that his sentence is substantively
unreasonable because the District Court focused predominantly on his
perceived dangerousness and failed to give adequate weight to certain
mitigating circumstances, such as his personal history and
characteristics. He further contends that the District Court’s failure to
depart horizontally to a lower criminal history category under the
United States Sentencing Guidelines (“Guidelines”) rendered his
sentence substantively unreasonable.
36 Ohio App. 123.
37 Id. at 127.
20
In reviewing a sentence for substantive unreasonableness, we
“do not substitute our own judgment for that of the district judge, nor
will we second guess the weight (or lack thereof) that the judge
accorded to a given factor or to a specific argument made pursuant to
that factor.”38 In discharging its duty to consider aggravating and
mitigating factors under 18 U.S.C. § 3583(e),39 a district court need not
utter “robotic incantations” or discuss each factor individually.40 Nor
is a district court forbidden from considering a supervisee’s character,
including his perceived dangerous, at a revocation hearing. Indeed,
we have repeatedly recognized that while the primary purpose of a
revocation hearing is to “sanction primarily the defendant’s breach of
trust,” a district court may take into account, “to a limited degree, the
seriousness of the underlying violation and the criminal history of the
violator.”41
United States v. Romano, 794 F.3d 317, 339 (2d Cir. 2015) (internal quotation
38
marks omitted).
39 Section 3583(e) provides that “[t]he court may, after considering the
factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
(a)(6), and (a)(7) . . . revoke a term of supervised release, and require the defendant
to serve in prison all or part of the term of supervised release authorized by statute
for the offense that resulted in such term of supervised release . . . .” 18 U.S.C. §
3583(e)(3).
See United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007) (internal
40
quotation marks omitted).
United States v. Sindima, 488 F.3d 81, 86 (2d Cir. 2007) (emphasis omitted)
41
(quoting U.S.S.G. ch. 7, pt. A. intro. cmt. 3(b)).
21
Degroate identifies three mitigating factors that the District
Court allegedly failed to appreciate: (1) his violations were “non‐
aggravating, run‐of‐the‐mill violations”42 that did not involve new
criminal conduct; (2) despite growing up in a gang and drug‐infested
neighborhood, he managed to get a job and refrain from drug and
alcohol use while on supervised release; and (3) he had “begun to
make a plan for future success.”43
Degroate’s arguments are belied by the sentencing transcript
and the written Statement of Reasons for Revocation. First, the
sentencing transcript demonstrates the District Court’s express
consideration of the above‐listed mitigating factors. As the District
Court acknowledged at the revocation hearing:
I agree with what your lawyer said about a
lot. I mean, there’s no doubt about it. You
didn’t have an upbringing that was free from
gang association, you certainly had a
narcotics problem. We went through all of
that when I sentenced you originally and the
Court is cognizant of that and I agree with
your lawyer. It’s not easy for someone with
42 Appellant Br. 27.
43 Appellant Br. 28.
22
those affiliations to act like a normal citizen
. . . .44
The District Court also acknowledged Degroate’s future plans,
stating: “I want you to do what you say you’re trying to do, that is, to
do the right thing. I agree a thousand percent with what your counsel
said about getting out of Schenectady . . . . I think it’s a really good
move if you can go someplace else and try to start over again with
the help of the probation department. . . .”45
Notwithstanding these mitigating factors, the District Court
ultimately concluded that a term of incarceration was necessary in
light of Degroate’s repeated breaches of the court’s trust and the
failure of past sanctions to deter further violations of the terms of
supervision:
So I’m going to have to give you some time
so that you can think about what you have to
do when you do get out again and not be
contemptuous of these conditions. They’re
not to hurt you personally. They’re to make
you stronger by complying with them. But
when you don’t comply with them, you’re
saying, “Screw you, man. I’m going to do
what I want to do.” That’s what you’re
44 App. 129–30.
45 Id. at 130–31.
23
saying to me and that ain’t going to happen.
I can tell you that right now. . . .
I have to underline the seriousness of the
violations; you can call them technical or you
can call them substantive. I don’t care what
you called them. They’re willful violations to
say you don’t want to be on supervised
release. You want to do what you want to do
when you want to do it and that just isn’t
going to work.46
Degroate further argues that, in considering his perceived
dangerousness, the District Court impermissibly relied on extra‐
record social media posts. Upon review of the record, it is clear that
this extra‐record material did not materially affect the sentence that
the District Court ultimately imposed. Although Judge McAvoy
initially expressed concern about some vulgar and “sexually
suggestive comments” that Degroate made on Facebook regarding a
female probation officer, and acknowledged that the matter was
relevant to his thinking, he clarified that the sentence was imposed
because of the violations of supervised release rather than any
conduct on social media:
[Degroate’s] punishment is based on the
violations of counts one and two. The Court
46 Id.
24
is entitled to consider all matters that comes
before it in the sentencing process. His
sentence was not enhanced by the Facebook
post but certainly was something that I kept
in mind.47
The sentence imposed was thus a justified response to the two
significant violations of supervised release Degroate admitted to
committing.
Finally, while Degroate does not contest his Guidelines
Criminal History Category of II, he submits that the District Court’s
failure to grant him a horizontal departure to Category I resulted in a
sentence that was substantively unreasonable. We generally will not
review a district court’s refusal to grant a Guidelines departure unless
the “sentencing court misapprehended the scope of its authority to
depart or the sentence was otherwise illegal.”48 Degroate identifies
nothing in the record to indicate that either concern is implicated in
this case—that is, that the District Court misapprehended its authority
to depart or that Degroate’s sentence was otherwise illegal.
Furthermore, the fact that the District Court did depart
horizontally at Degroate’s post‐conviction sentencing is of no moment,
47Id. at 135; see also Dist. Ct. Dkt. No. 407 (Court Only) (Statement of Reasons
for Revocation) (“The Court clearly noted that the rationale for the 18 month
imprisonment sentence is due to the violation conduction in violation’s [sic] #1 and
#2 and not due to the discovery of the Facebook posts.”).
48 United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005).
25
since a prior departure does not entitle Degroate to a departure at any
subsequent sentencing. In fact, the Guidelines commentary suggests
that a prior departure resulting in a below‐guideline sentence may
actually be a reason to depart upward at a subsequent revocation
hearing: “Where the original sentence was the result of a downward
departure . . . that resulted in a sentence below the guideline range
applicable to the defendant’s underlying conduct, an upward
departure may be warranted [at a revocation hearing].”49
In sum, Degroate’s above‐guideline sentence was not
substantively unreasonable under the circumstances of this case.
III. CONCLUSION
To summarize, we hold as follows:
(1) A supervisee does not have the right to expand allocution by
presenting mitigation witnesses at a revocation hearing.
(2) The District Court did not unlawfully delegate its judicial
authority to the Probation Office when it imposed a special
condition of supervised release that required Degroate to
“comply with a curfew commencing on a date and under the
conditions to be set by the probation officer.”
(3) Even if the Probation Office exceeded its lawfully delegated
supervisory authority by unilaterally imposing a two‐day
lock‐down, Degroate has failed to demonstrate that his
49 U.S.S.G. § 7B1.4 cmt. n.4.
26
violations of this lock‐down condition affected the outcome
of his revocation hearing.
(4) Degroate’s sentence is not substantively unreasonable.
For the foregoing reasons, we AFFIRM the District Court’s July
27, 2018 judgment.
27