United States v. Templar , 486 F. App'x 224 ( 2012 )

11-3512-cr
United States v. Templar
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 3rd day of July, two thousand twelve.
Present: ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON
Circuit Judges,
BRIAN M. COGAN,*
District Judge.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v.- 11-3512-cr
WILLIAM TEMPLAR,
Defendant-Appellant.
Appearing for Appellant: Melissa A. Tuohey, Assistant Federal Public Defender (Lisa
Peebles, Acting Federal Public Defender, James Egan, Research &
Writing Attorney, on the brief), Syracuse, N.Y.
Appearing for Appellee: Elizabeth S. Riker, Assistant United States Attorney (Richard S.
Hartunian, United States Attorney for the Northern District of New
York, Edward R. Broton, Assistant United States Attorney, on the
brief), Syracuse, N.Y.
*
The Honorable Brian M. Cogan of the United States District Court for the Eastern District of New York,
sitting by designation.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Mordue, C.J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
On April 11, 2011, defendant-appellant William Templar pleaded guilty to two counts of
making a false statement to a federal agent in violation of 18 U.S.C. § 1001. On August 15,
2011, the district court sentenced Templar principally to a thirty-six-month term of
imprisonment. Templar now appeals that sentence. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.
Templar first argues that his sentence was procedurally unreasonable because Templar’s
two prior convictions against minors did not provide a proper basis for the court’s imposition of
the “vulnerable victim” upward departure under Application Note 4 of Guideline 3A1.1 of the
United States Sentencing Guidelines. The merits of this contention are not properly before us,
however, because Templar conceded to the district court that the two prior convictions justified
application of the departure. Templar argues that we should review this issue under the plain
error standard, which applies when an objection was forfeited before the district court. As the
government argues, however, this issue was not forfeited through a failure to object, but was
“waived through explicit abandonment.” United States v. Jackson, 346 F.3d 22, 24 (2d Cir.
2003) (emphasis added). Thus, “plain error review is not available.” Id.; accord United States v.
DeJesus-Concepcion, 607 F.3d 303, 305 (2d Cir. 2010) (concluding that the defendant had
waived appellate review of the district court’s addition of a criminal history point for a prior
conviction because he had “expressly acknowledged” to the district court that the prior
conviction was a proper basis for the additional criminal history point).
Next, Templar argues that his sentence was substantively unreasonable. We review a
district court’s substantive sentencing determination deferentially for abuse of discretion: we
consider “the totality of the circumstances,” Gall v. United States, 552 U.S. 38, 51 (2007), and
set aside that 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, 189
(2d Cir. 2008) (en banc) (internal quotation marks omitted).
Templar argues that the sentence was substantively unreasonable because the court based
the sentence on Templar’s propensity to “take advantage of the young and [to] take advantage of
the old,” but failed to consider that there was a twenty-year gap between Templar’s earlier
crimes and the instant offense. The district court did not abuse its discretion by failing to
consider the twenty-year gap as a mitigating factor because Templar was incarcerated for much
of that twenty-year period and committed the instant offense not long after his release.
Templar next argues that the sentence was substantively unreasonable because the
“offense merely involved general denials of wrongdoing” and did not mislead the postal
inspector, who had already completed the investigation at the time he interviewed Templar.
Although Templar is correct that the agent who interviewed him suggested that the investigation
was near completion when the inspector interviewed Templar, the record supports the district
court’s finding that Templar had told specific falsehoods rather than general denials.
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Thus, Templar’s two arguments of substantive unreasonableness are unavailing, and we
conclude that the sentence was not substantively unreasonable. We have considered all of
Templar’s arguments and reject them as meritless. Accordingly, the judgment of the district
court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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