United States v. Henry T. Dean, III ( 2020 )

18-3690-cr
United States v. Henry T. Dean, III
18‐3690‐cr
United States v. Henry T. Dean, III
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 13th day of January, two thousand twenty.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 18‐3690‐cr
HENRY T. DEAN, III,
Defendant‐Appellant.
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FOR APPELLEE: TIFFANY H. LEE, Assistant United States
Attorney, for James P. Kennedy, Jr., United
States Attorney for the Western District of New
York, Rochester, New York.
FOR DEFENDANT‐APPELLANT: DEVIN MCLAUGHLIN, Langrock Sperry &
Wool, LLP, Middlebury, Vermont.
Appeal from the United States District Court for the Western District of
New York (Wolford, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Henry T. Dean, III appeals from a judgment entered
December 6, 2018, after a guilty plea, convicting him of wire fraud in violation of 18
U.S.C. § 1343. The district court sentenced Dean principally to 36 monthsʹ
imprisonment, to be followed by three years of supervised release. On appeal, Dean
challenges the reasonableness of his sentence. We assume the partiesʹ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
Between September 2014 and October 2016, Dean engaged in a scheme to
defraud individuals who wanted to rent vacation property located in the Western
District of New York. Dean advertised two vacation rentals, the Finger Lakes Guest
House (ʺFLGHʺ) and the Watkins Glen Guest House (ʺWGGHʺ), on various rental
websites. Dean encouraged customers to book ahead although he assured them that
they could cancel the reservation and receive a full refund up to 60 days prior to arrival.
In March 2016, the New York State Police (the ʺNYSPʺ) initiated an
investigation in response to complaints that Dean was providing false information in
online advertisements regarding FLGH in Schuyler County, and refusing to return
rentersʹ money after they determined the rental was uninhabitable. Victims from
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different states had contacted local law enforcement in 2016 after not receiving money
back from Dean. On March 10, 2016, NYSP Investigators discovered that FLGH was
still under construction, despite its online listing describing the property as a large
vacation rental containing 10 bedrooms and 9 bathrooms with numerous amenities,
including a six‐person hot tub, a fish pond, several waterfalls and streams, and three
ovens in the kitchen, none of which were found by the investigators. As for WGGH,
Dean also made blatant misrepresentations about the property, inducing victims to
submit deposits, which he refused to refund when reservations were cancelled. In total,
some 23 individual victims were thus defrauded of approximately $137,272.
On March 19, 2018, Dean pleaded guilty to Count 10 of the superseding
indictment, which charged him with wire fraud in violation of 18 U.S.C. § 1343. The
plea agreement contained a Guideline sentence of 15 to 21 monthsʹ imprisonment. The
presentence investigation report (the ʺPSRʺ) similarly calculated Deanʹs Guideline range
of imprisonment to be 15 to 21 months. The PSR also noted that both Dean and the
government reserved the right to recommend a sentence outside the Sentencing
Guidelines range.
On December 3, 2018, the district court sentenced Dean principally to 36
monthsʹ imprisonment, to be followed by a three‐year term of supervised release, and
restitution in the amount of $119,473.93. On appeal, Dean argues that the sentence
imposed by the district court is procedurally unreasonable because the court (1) failed
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to adequately consider the Sentencing Guidelines, (2) considered uncharged conduct,
and (3) failed to consider Guidelines instructions governing financial losses. He also
argues that the sentence is substantively unreasonable because the upward variance
was imposed without justification.
STANDARD OF REVIEW
ʺWe review sentencing decisions for procedural and substantive
reasonableness.ʺ United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019). We apply a
ʺdeferential abuse‐of‐discretion standardʺ to both procedural and substantive review.
United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)). ʺA district court commits procedural error where it fails
to calculate (or improperly calculates) the Sentencing Guidelines range, treats the . . .
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.ʺ United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citation omitted). In
analyzing the substantive reasonableness of a sentence, this Court ʺwill identify as
substantively unreasonable 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.ʺ United States v. Singh, 877 F.3d 107, 115 (2d Cir.
2017) (citation and internal quotation marks omitted).
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Because Dean did not raise his arguments during the sentencing
proceeding, we review Deanʹs procedural reasonableness challenge under the plain
error standard. United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (per curiam)
(ʺWhere, as here, a defendant contests the procedural reasonableness of his sentence on
appeal, but did not raise his objections before the district court, we review for plain
error.ʺ).1
DISCUSSION
I. Procedural Reasonableness
The district court did not commit plain error in imposing Deanʹs sentence.
First, the district court adequately considered the § 3553(a) factors, as the record shows
that the district court examined the Guidelinesʹ treatment of Deanʹs offense in the
context of his conduct with the victims, and accounted for Deanʹs mitigating
circumstances. For example, the district court stated specific reasons for its decision,
characterizing Deanʹs ʺcriminal historyʺ as ʺrather significant, in terms of the number of
offenses or convictions,ʺ and noting that he ʺintentionally accept[ed] money based on
false pretenses and false representations when under no reasonable view of the facts
[was he] going to be able to deliver what was promised.ʺ Appʹx at 82, 87. The district
1 On the substantive reasonableness challenge, this Court has ʺnot decided whether plain
error review applies to an unpreserved challenge to the substantive reasonableness of a
sentence.ʺ See United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014). We need not
resolve that issue here because Deanʹs challenge fails on the merits.
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court also emphasized that Deanʹs criminal scheme was not an isolated incident and
that the sentence imposed needed to ʺreflect the seriousness of the offense, . . . afford
adequate deterrence to criminal conduct and protect the public from any further crimes
that [Dean] might commit.ʺ Appʹx at 87.
Second, the district court committed no procedural error in addressing the
new allegations of fraud raised by the government at sentencing. Although the district
court accepted the fact that additional individuals called the U.S. Attorneyʹs Office and
asserted that Dean defrauded them, the district court explicitly stated three times
during the sentencing proceeding that it would not consider the substance of these
disputed allegations of fraud because the allegations were unproven. See Appʹx at 67
(ʺAnd I can tell you, Iʹm not going to consider that in connection with sentencing
because the fact of the matter is, I donʹt have any way to determine the veracity of the
complaints . . . .ʺ); see also Appʹx at 51, 66. By stating that it would not consider these
new allegations at sentencing, the district court clearly followed the proper procedure
for resolving this disputed issue. See Fed. R. Crim. P. 32(i) (ʺAt sentencing, the court . . .
must ‐‐ for any disputed portion of the presentence report or other controverted matter
‐‐ rule on the dispute or determine that a ruling is unnecessary either because the matter
will not affect sentencing, or because the court will not consider the matter in
sentencing . . . .ʺ).
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Third, the district court did not commit procedural error in not
considering the Guidelinesʹ instruction for departures in financial loss cases, pursuant
to U.S.S.G. § 2B1.1. This provision, and its relevant instructions, applies to sentencing
departures, not variances. As a result, it is inapplicable here because the district court
imposed an upward variance, not an upward departure.2 Even if the instruction for
departures in financial loss cases informed the sentence fashioned by the district court,
that Guideline instruction provides a non‐exhaustive list of grounds that may justify a
higher sentence. Additional grounds not listed may also justify a higher sentence.
Accordingly, Dean has not demonstrated any error, let alone plain error,
and his sentence was procedurally reasonable.
II. Substantive Reasonableness
We further conclude that Deanʹs sentence was substantively reasonable.
When a district court deviates from an advisory Guidelines range, it must consider the
ʺextent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.ʺ Cavera, 550 F.3d at 189 (quoting Gall, 552 U.S. at
50). Here, the degree of the upward variance is not ʺshockingly high.ʺ Singh, 877 F.3d
at 115. The district court properly considered the nature and circumstances of the
2 In a non‐precedential summary order, this Court has rejected a similar argument. See,
e.g., United States v. McGowan, 315 F. Appʹx 338, 342 (2d Cir. 2009) (summary order) (ʺbecause
the court imposed a non‐Guidelines sentence, McGowanʹs argument that the court failed to
follow the procedures applicable to departures under U.S.S.G. § 4A1.3 is unavailingʺ).
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crime, and Deanʹs history and characteristics, in explaining its decision to impose an
upward variance. The district court carefully considered the extent of the deviation
and justified the 15‐month variance based upon the § 3553(a) factors, including Deanʹs
ʺdanger to the community,ʺ his ʺrisk of recidivism,ʺ his ʺefforts to minimize the
fraudulent conduct,ʺ and the ʺinexcusable harmʺ caused to the ʺ[victims], all of which
the court was entitled to consider.ʺ Appʹx at 93; see Wasman v. United States, 468 U.S.
559, 563 (1984) (ʺThe sentencing court . . . must be permitted to consider any and all
information that reasonably might bear on the proper sentence for the particular
defendant, given the crime committed.ʺ). Accordingly, we conclude that Deanʹs
sentence was substantively reasonable.
* * *
We have considered Deanʹs remaining arguments and conclude they are
without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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