United States v. LaTray , 432 F. App'x 1 ( 2011 )

10-1662-cr
United States v. LaTray
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 25th day of April, two thousand eleven.
PRESENT: AMALYA L. KEARSE,
ROGER J. MINER,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 10-1662-cr
GARY LATRAY,
Defendant-Appellant,
TIMOTHY DEMARC,
Defendant.
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FOR DEFENDANT-APPELLANT: MARJORIE M. SMITH, Piermont, New
York.
FOR APPELLEE: PAULA RYAN CONAN, Assistant United
States Attorney (John G. Duncan,
Assistant United States Attorney,
on the brief), for Richard S.
Hartunian, United States Attorney
for the Northern District of New
York, Syracuse, New York.
Appeal from a judgment of the United States District
Court for the United States District Court for the Northern
District of New York (McCurn, J.) entered April 26, 2010,
convicting defendant-appellant Gary LaTray of violating the terms
of his supervised release and sentencing him principally to 36
months' imprisonment.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the sentence of the district court is AFFIRMED,
and the case is REMANDED for the district court to amend the
written judgment to append a detailed written statement of the
reasons for the sentence in compliance with 18 U.S.C.
§ 3553(c)(2) (2006).1
We assume the parties' familiarity with the facts and
procedural history of the case, which we summarize as follows:
1
Effective May 27, 2010, 18 U.S.C. § 3553(c)(2) was
amended in technical respects. We apply the statute that was in
effect at the time of his sentencing.
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In 1990, following a jury trial, Gary LaTray was
convicted in the Northern District of New York of armed robbery
of bank funds and associated crimes. He was sentenced
principally to 248 months' imprisonment and three years'
supervised release. He completed his term of imprisonment and
commenced his term of supervised release in June 2007.
On May 27, 2009, the Probation Department filed a
petition for revocation of LaTray's supervised release, based on
three specifications: failure to report as directed by the
Probation Department; use of marijuana and/or cocaine on three
occasions; and failure to comply with the requirements of a drug
testing program. The district court issued a warrant for
LaTray's arrest.
LaTray was arrested in West Virginia on February 24,
2010, and was returned to the Northern District of New York. He
pled guilty to the three violations of supervised release on
April 20, 2010. The district court proceeded immediately to
sentencing. Although the violations carried a range of 8 to 14
months under the United States Sentencing Guidelines (the
"Guidelines"), see U.S.S.G. § 7B1.4(a) (2010), the district court
sentenced LaTray to the maximum possible term of imprisonment --
36 months. LaTray filed a timely notice of appeal.
On appeal, LaTray argues principally that the district
court committed reversible error by: (1) sentencing him without
a new presentence report; (2) sentencing him to an above-
Guidelines sentence without first giving notice that it was
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contemplating doing so; and (3) failing to properly explain its
sentence in open court and in the written judgment of conviction.
We address each argument in turn. We note that LaTray raises
these arguments for the first time on appeal, and thus our review
of his claims is for plain error. United States v. Deandrade,
600 F.3d 115, 119 (2d Cir.), cert. denied, 130 S. Ct. 2394(2010).
1. The Absence of a Presentence Report
LaTray's first argument fails because a presentence
report is not required where a defendant is sentenced for a
violation of supervised release. The provisions applicable to
revocation proceedings -- Chapter 7 of the Guidelines and Federal
Rule of Criminal Procedure 32.1 -- do not impose such a
requirement. Indeed, the practice in the district courts in this
Circuit is to sentence for violations of supervised release
without a new presentence report.
LaTray relies on Chapter 6 of the Guidelines and
Federal Rule of Criminal Procedure 32, which do require, as a
general rule, a presentence report. Chapter 6 and Rule 32 apply
generally to criminal proceedings, however, and not specifically
to revocation proceedings. They are entitled, respectively,
"Sentencing Procedures, Plea Agreements, and Crime Victims'
Rights" and "Sentencing and Judgment." In contrast, Chapter 7
and Rule 32.1 apply specifically to, respectively, "Violations of
Probation and Supervised Release" and "Revoking or Modifying
Probation or Supervised Release." As they do not require a
presentence report, there was no plain error here.
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2. The Absence of Notice
Likewise, there was no error, much less plain error, in
the district court's failure to give advance notice of its
intention to impose an above-Guidelines sentence. Again, LaTray
relies on a rule, Federal Rule of Criminal Procedure 32(h), that
does not apply to revocation proceedings. Moreover, even in the
general sentencing context, the Supreme Court has held that the
"notice" requirement in Rule 32(h) is not applicable to the
imposition of a "variance" from the Guidelines range under the
post-Booker advisory Guidelines regime. Irizarry v. United
States, 553 U.S. 708, 713-14 (2008). In fact, the Guidelines
ranges applicable to revocation sentencings were always "only
advisory," as they were originally promulgated as "policy
statements only." See U.S.S.G. § 7A cmt. 1 (2010); United States
v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008).
3. Reasonableness of the Sentence
As in the sentencing context generally, a sentence in
the revocation context must be reasonable, both substantively and
procedurally. See Verkhoglyad, 516 F.3d at 127. On appeal, we
review such challenges for abuse of discretion. United States v.
Hasan, 586 F.3d 161, 167-68 (2d Cir. 2009), cert. denied, 131 S.
Ct. 317 (2010).
LaTray does not challenge the substantive
reasonableness of his sentence, nor could he. The district court
did not abuse its discretion in sentencing LaTray to the maximum
term of 36 months. Judge McCurn had sentenced LaTray on the
underlying offenses back in 1990, and he was fully aware of the
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violent nature of LaTray's original crimes and his criminal
record, which the district court had then described as
"horrendous." LaTray admitted his guilt with respect to the
three specifications in question, which charged multiple
violations. He was in Criminal History Category VI. And he had
been arrested out-of-state on unrelated charges, clearly having
absconded from supervised release. Under these circumstances,
the district court's imposition of a 36-month sentence fell
"within the range of permissible decisions." United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal
quotation marks omitted).
Procedurally, LaTray argues, the district court failed
in two respects. First, he contends that the district court
failed to state its reasons in open court for imposing a sentence
outside of the Guidelines range. See 18 U.S.C. § 3553(c) (2006).
Second, he notes that the written judgment contained no statement
of reasons for the imposition of a non-Guidelines sentence. See
18 U.S.C. § 3553(c)(2). The government concedes that the
district court's failure to memorialize its reasons in writing
constituted error but argues that the court's oral statements
provided a sufficient explanation for the sentence imposed.
At the hearing, the district court addressed LaTray and
stated: "The court imposes this sentence . . . above the
[G]uideline range after considering the breach of trust that
occurred while you were under the supervision of this court."
The court also noted: "With all factors considered, the court
finds this to be an appropriate sentence."
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The district court's oral explanation for its sentence
was insufficient. The stated reasoning rested solely upon breach
of trust, a fact inherent in every violation of supervised
release. See U.S.S.G. § 7A.3(b) (2010) (providing that during
revocation, court should "sanction primarily the defendant's
breach of trust"). "'When a factor is already included in the
calculation of the [G]uidelines sentencing range, a judge who
wishes to rely on that same factor to impose a sentence above or
below the range must articulate specifically the reasons that
this particular defendant's situation is different from the
ordinary situation covered by the [G]uidelines calculation.'"
United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007) (quoting
United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).
Likewise, the district court's statement that the maximum
sentence was appropriate "[w]ith all factors considered" was
insufficient under 18 U.S.C. § 3553(c). While we have not
required an "extensive or detailed" explanation, Verkhoglyad, 516
F.3d at 136, a fuller explanation of the court's reasoning was in
order in this case.
Nonetheless, we do not reverse on this basis. First,
there was no objection or request for a fuller explanation.
Second, under the circumstances here, even a bit of further
elaboration would have been sufficient, and given the present
record, we can easily discern what the district court meant by
"breach of trust." Because it is clear that LaTray's conduct
constituted several breaches, and that he cannot show that his
sentence was substantively unreasonable or an abuse of
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discretion, we are of the view that the district court's failure
to provide a fuller oral statement of reasons did not deprive
LaTray of substantial rights or reflect negatively on the
judicial process. Accordingly, it did not constitute plain
error. Cf. United States v. Lewis, 424 F.3d 239, 245-46, 249 (2d
Cir. 2005) (finding plain error in failure to verbally state "any
reason," vacating sentence, and remanding for oral and written
statement of reasons).
The district court clearly failed to state an adequate
reason for imposing a non-Guidelines sentence in the written
judgment of conviction. See 18 U.S.C. § 3553(c)(2) (court must
state in writing "the specific reason" for sentence imposed
outside the range). But where a sentencing court has provided an
oral statement of reasons sufficient in light of the record to
provide a basis for this Court's review for reasonableness,
remand only for a written statement of reasons without vacatur of
the sentence is appropriate. See United States v. Jones, 460
F.3d 191, 196-97 (2d Cir. 2006) (finding oral statement
explaining non-Guidelines sentence permitted review for
reasonableness and remanding only for compliance with
§ 3553(c)(2)). Where, as here, the district court's oral
explanation was insufficient, but the plain-error standard is
applicable and the record leads to the conclusion that there was
no plain error, we likewise conclude that vacatur of the judgment
is not required and that it is appropriate simply to remand for
the district court to provide a more detailed articulation of the
reasons for the sentence in a written statement to accompany the
judgment as contemplated by 18 U.S.C. § 3553(c)(2).
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CONCLUSION
We have considered all of LaTray's other contentions on
appeal and have found them to be without merit. For the reasons
stated above, the sentence of the district court is AFFIRMED, and
the case is REMANDED with instructions to amend the written
judgment to append a detailed written statement of the reasons
for the sentence in compliance with 18 U.S.C. § 3553(c)(2)
(2006).
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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