United States v. Grady ( 2020 )

19-2227
United States v. Grady
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 TO 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 7th day of July, two thousand twenty.
PRESENT:
JON O. NEWMAN
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. 19-2227
SHAEEM GRADY, AKA SHAHEEM GRADY
Defendant-Appellant.
Appearing for Defendant-Appellant: Courtenay K. McKeon, for Lisa A. Peebles,
Federal Public Defender, Syracuse, NY.
Appearing for Appellee: Emily C. Powers and Geoffrey J.L. Brown, for
Grant C. Jaquith, United States Attorney for the
Northern District of New York, New York, NY.
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Appeal from a judgment of the United States District Court for the Northern
District of New York (Scullin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on July 9, 2019 is AFFIRMED.
Defendant-Appellant Shaeem Grady appeals from an order of the United States
District Court for the Northern District of New York revoking supervised release. After
being convicted by a jury of three counts of drug-related offenses, Grady was sentenced
to 75 months’ imprisonment and a three-year term of supervised release. Approximately
five months into the period of supervised release, Grady was convicted of multiple
violations of the terms of that release, resulting in a sentence of two months’
imprisonment followed by three years of supervised release. Shortly after Grady
completed his two-month sentence, the United States Probation Office for the Northern
District of New York (USPO) again petitioned the district court to revoke his supervised
release, charging two new violations of the conditions of release. Following a hearing,
the district court found Grady had violated a condition of his supervised release and
imposed a sentence of five months’ imprisonment to be followed by a new three-year
term of supervised release. Grady appeals. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues on appeal.
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A. Criminal Procedure Rule 32.1 and Due Process
Grady first argues that the district court violated due process by forcing him to
choose between proceeding with a revocation proceeding or being remanded into
custody while defense counsel marshalled mitigating evidence to rebut the allegations
against Grady. We review claims of due process violations in supervised release
proceedings de novo. See United States v. Ramos, 401 F.3d 111, 115 (2d Cir. 2005).
“This Court considers the constitutional protections for revocation of supervised
release to be the same as those afforded for revocation of parole or probation.” United
States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). “The Supreme Court does not, however,
attach to revocation proceedings the full range of procedural safeguards associated with
a criminal trial, because a probationer already stands convicted of a crime.” Id. (internal
citation omitted). Revocation of supervised release proceedings are governed by Rule
32.1 of the Federal Rules of Criminal Procedure. Rule 32.1(a) provides for an “initial
appearance” before a magistrate judge when a person is accused of violating conditions
of supervised release. Fed. R. Crim. P. 32.1(a). This may occur either when the defendant
is being held pursuant to an arrest warrant or when the defendant has been issued a
summons to appear. See id.
At an initial proceeding where the defendant has been summonsed, the judge
must inform the defendant of the allegations against him, and his right to retain counsel
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or request that counsel be appointed. Fed. R. Crim. P. 32.1(a)(3). If the defendant has
been arrested and is being held in custody for the violations, the defendant also has a
right to a preliminary hearing under Rule 32.1(b)(1). In either scenario, “pending further
proceedings,” the judge “may release or detain the person under 18 U.S.C. § 3143(a)(1).”
Fed. R. Crim. P. 32.1(a)(6). “The burden of establishing by clear and convincing evidence
that the person will not flee or pose a danger to any other person or to the community
rests with the person.” Id. Additionally, 18 U.S.C. § 3583(g), which governs supervised
release terms included as part of a sentence, mandates revocation for refusal to comply
with drug testing imposed as a condition of release.
Based on the forgoing, it was not a violation of due process for the district court to
present Grady, at his initial appearance, with a choice either to go forward with a full
revocation proceeding or to be remanded into custody. Grady appeared with counsel
before an Article III district court judge, rather than a magistrate judge, and Grady was
made aware of the alleged violations of his supervised release as required by Rule
32.1(a)(3). The court gave him the option of scheduling a revocation proceeding at a later
date, which would have allowed for the defense to investigate the facts and collect any
mitigating evidence. After consulting with counsel, Grady elected to go forward with
the revocation proceeding rather than be remanded into custody. While prior
conversations between the clerk and defense counsel may have caused some confusion,
Grady’s due process rights were not violated. Moreover, because Grady had appeared
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on the morning of the hearing and presented the USPO with a diluted urine sample, and
because Grady had been expelled from the residential reentry program that was a
condition of his supervised release, the district court had reason to remand Grady into
custody.
Grady also argues that once he chose to proceed with the revocation proceeding,
the district court committed an array of errors that amount to violations of Rule 32.1 and
his right to due process. We disagree. To the extent there was any error in the district
court’s sua sponte admitting a report from the residential reentry center Grady was
dismissed from and allowing cross-examination without redirect, such error or
deprivation was mooted when the district court disclaimed any reliance on that evidence
and testimony. See Sanchez, 225 F.3d at 175 (noting probationers are not entitled to
confront and cross-examine adverse witnesses when the hearing officer finds good cause
for not allowing confrontation); United States v. Aspinall, 389 F.3d 332, 346 (2d Cir. 2004)
(applying harmless error analysis to a court’s failure to comply with Rule 32.1 and due
process at a revocation proceeding). The district court repeatedly proclaimed it was
sentencing Grady based solely on the second alleged violation of supervised release, a
violation which Grady had admitted. When improprieties occurring at a revocation
proceeding “hav[e] no bearing” on the court’s ultimate findings, the errors are harmless.
Aspinall, 389 F.3d at 346.
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B. Sentencing
Finally, Grady argues that the sentence imposed was substantively and
procedurally unreasonable. We assess a claim of procedural unreasonableness by
determining whether the district court (1) identified the incorrect guidelines range, (2)
treated the guidelines as mandatory, (3) failed to consider the Section 3553(a) factors, (4)
selected a sentence based on clearly erroneous facts, or (5) failed adequately to explain
the sentence. Gall v. United States, 552 U.S. 38, 45 (2007); United States v. Rattoballi, 452
F.3d 127, 131 (2d Cir. 2006).
Grady argues that the district court erred by relying on evidence not produced in
court and related to past violations. Even assuming that is true, however, the district
court’s decision to do so does not amount to a procedural error. In a supervised release
proceeding, a district court need not consider a violation in a vacuum. See United States
v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008). Rather, the court can put the violation in
the context of the defendant’s actions “to determine the extent to which it reflected a
betrayal of the court's trust.” Id. at 132. Here, it was not improper for the district court
to consider prior violations. See also United States v. Edwards, 834 F.3d 180, 195 (2d Cir.
2016) (“[I]t would make no sense to conclude that [Congress] intended to preclude courts
from factoring . . . further violations into revocation decisions”).
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Nor was the sentence substantively unreasonable. “Upon review for substantive
unreasonableness, we take into account the totality of the circumstances, giving due
deference to the sentencing judge’s exercise of discretion, and bearing in mind the
institutional advantages of district courts.” United States v. Brown, 843 F.3d 74, 80 (2d Cir.
2016) (citation and quotation marks omitted). In giving the sentencing judge the
deference that is due, we “provide relief only in the proverbial ‘rare case.’” United States
v. Bonilla, 618 F.3d 102, 109 (2d Cir. 2010) (quoting United States v. Rigas, 583 F.3d 108, 123
(2d Cir. 2009)). “A sentencing judge has very wide latitude to decide the proper degree
of punishment for an individual offender and a particular crime” and “[w]e 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. Cavera, 550 F.3d 180, 188, 189 (2d Cir. 2008) (en banc) (internal quotation marks
and citation omitted). We “may consider whether a factor relied on by a sentencing court
can bear the weight assigned to it” under the totality of the circumstances in a case, but
this review is similarly deferential. Id. at 191.
Grady was sentenced at the bottom of the guidelines range for the violation to
which he admitted. In any event, any objection to the term of imprisonment has been
mooted by Grady’s completion of the time imposed, see United States v. Blackburn, 461
F.3d 259, 262-64 (2d Cir. 2006), so the only remaining challenge is to the additional three
years of supervised release. Under the totality of the circumstances, including that this
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was Grady’s second violation of supervised release in rapid succession, this sentence is
not unreasonable. Cavera, 550 F.3d at 190.
We have considered Grady’s remaining arguments and find them to be without
merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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