     15-4051
     United States v. Dean

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of December, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges,
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-4051
16
17       TODD GLENN DEAN,
18                Defendant-Appellant
19
20       - - - - - - - - - - - - - - - - - - - -X
21
22
23       FOR APPELLANT:                        DANIELLE C. WILD, Easton
24                                             Thompson Kasperek Shiffrin, LLP,
25                                             Rochester, New York (Lawrence L.
26                                             Kasperek, on the brief).
27


                                                  1
 1       FOR APPELLEE:                 MONICA J. RICHARDS, for
 2                                     William J. Hochul, Jr.,
 3                                     United States Attorney for
 4                                     the Western District of New
 5                                     York.
 6
 7       Appeal from a judgment of the United States District

 8   Court for the Western District of New York (Larimer, J.).

 9       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

10   AND DECREED that the judgment of the district court be

11   AFFIRMED.

12       Todd Glenn Dean appeals from the judgment of the United

13   States District Court for the Western District of New York

14   (Larimer, J.) imposing a prison sentence of 216 months,

15   following a plea agreement.   We assume the parties’

16   familiarity with the underlying facts, the procedural

17   history, and the issues presented for review.   We affirm

18   because the government did not violate its plea agreement

19   with Dean and because Dean’s sentence was not substantively

20   unreasonable.

21       After indictment for attempting to entice a minor into

22   sexual activity, Dean entered into a plea agreement with the

23   government providing that: 1) it was the understanding of

24   both parties that a Sentencing Guidelines range of 140 to

25   175 months applied; 2) Dean nonetheless understood that he

26   was subject to a potential term of life imprisonment;

27   3) both the government and Dean had the right to argue for a

                                   2
 1   sentence outside the Guidelines range; and 4) both the

 2   government and Dean had the right “to bring to the attention

 3   of the Court all information deemed relevant to a

 4   determination of the proper sentence in this action.”     The

 5   plea deal did not refer to an enhancement for a “Repeat and

 6   Dangerous Sex Offender Against Minors” (U.S.S.G. § 4B1.5),

 7   apparently because it was overlooked.   The enhancement would

 8   have dramatically increased Dean’s Guidelines range.

 9       After the plea, the Probation Department (“Probation”)

10   prepared a Presentence Investigation Report (“PSR”) which

11   did recommend that the § 4B1.5 enhancement apply, increasing

12   Dean’s Guidelines range to 235 to 293 months.    After

13   receiving the PSR, the government submitted sentencing

14   briefs stating that the enhancement for repeat sex offenses

15   against minors did not apply and the correct Guidelines

16   range was therefore still 140 to 175 months, but requesting

17   an above-Guidelines sentence of 240 months.     The district

18   court found that the enhancement applied, and Dean does not

19   contest that it applies by its terms.   The district court

20   sentenced Dean below the resulting Guidelines range to 216

21   months.

22       The government did not breach its plea agreement by

23   arguing for an above-Guidelines sentence; the plea agreement

24   explicitly allowed the government to do so.     Probation, not

                                  3
 1   the government, argued that the § 4B1.5 enhancement should

 2   apply, and the government told the district court its

 3   position was that the § 4B1.5 enhancement did not apply.

 4   See United States v. Riera, 298 F.3d 128, 134 (2d Cir. 2002)

 5   (holding that the government’s representations to the court

 6   that it was not seeking an upward departure suggested it had

 7   not breached the plea agreement).     The government’s brief

 8   argued for an above-Guidelines sentence on the separate

 9   grounds, under 18 U.S.C. § 3553, that it was needed “to

10   protect the public from further crimes of the defendant” and

11   “to afford adequate deterrence to criminal conduct.”

12       It is unsurprising that the § 4B1.5 enhancement seems

13   to also be driven by a concern to protect the public and to

14   afford adequate deterrence.   Section 3553 reflects the

15   purposes of sentencing generally, and each specific

16   Sentencing Guideline is designed to carry out those

17   purposes.   See Rita v. United States, 551 U.S. 338, 348

18   (2007) (citing 28 U.S.C. § 991(b)).    If a provision in a

19   plea agreement allowing the government to argue for an

20   above-Guidelines sentence based on the § 3553 factors is to

21   have meaning, the government must therefore be allowed to

22   make those arguments even if they overlap to some extent

23   with the argument for a potential enhancement.    An exception

24   applies when the government acts in bad faith; but the

                                   4
 1   district court found, and we agree, that there has been no

 2   bad faith.   See United States v. Habbas, 527 F.3d 266, 271

 3   (2d Cir. 2008).1

 4       Dean also argues that his sentence was substantively

 5   unreasonable.     We review the substantive reasonableness of a

 6   sentence for abuse of discretion and will only set aside

 7   sentences which are “shockingly high, shockingly low, or

 8   otherwise unsupportable as a matter of law.”     United States

 9   v. Pattee, 820 F.3d 496, 512 (2d Cir. 2016) (internal

10   quotations omitted).    The district court considered

11   potential mitigating factors and then sentenced Dean to a

12   below-Guidelines sentence given the need to protect the

13   public.   That sentence was neither shockingly high nor

14   unsupportable.

15       For the foregoing reasons, and finding no merit in

16   Dean’s other arguments, we hereby AFFIRM the judgment of the

17   district court.
18
19                                 FOR THE COURT:
20                                 CATHERINE O’HAGAN WOLFE, CLERK
21




         1
          Dean cites this court’s summary order in United States
     v. Robinson; but that (non-precedential) case could be
     easily distinguished because it implicitly found that the
     government acted in bad faith. 634 F. App'x 47, 51 (2d Cir.
     2016) (summary order).
                                     5
