10-3574-cr
United States v. Parker

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS 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 October, two thousand eleven.

PRESENT:
     JOSÉ A. CABRANES,
     DEBRA ANN LIVINGSTON,
     DENNY CHIN.
                  Circuit Judges.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA,

                     Appellee,

                     -v.-                                                                  No. 10-3574-cr

TRYN PARKER,

                     Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR DEFENDANT-APPELLANT:                                       Christopher S. Ciaccio, Law Office of Christopher S.
                                                               Ciaccio, Rochester, NY.

FOR APPELLEE:                                                  Tiffany H. Lee, Assistant United States Attorney, for
                                                               William J. Hochul, Jr., United States Attorney for the
                                                               Western District of New York, Rochester, NY.

       Appeal from an August 30, 2010 judgment of the United States District Court for the
Western District of New York (David G. Larimer, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is AFFIRMED.
        Defendant-appellant Tryn Parker challenges the substantive and procedural reasonableness
of a 30-month non-Guidelines sentence the District Court imposed for conspiracy to commit bank
fraud in violation of 18 U.S.C. § 1349.

                                           BACKGROUND
        We assume the parties’ familiarity with the factual history and proceedings below. Briefly,
Parker pled guilty, pursuant to a written plea agreement, to Count 1 of a nine-count Superseding
Indictment charging him with conspiracy to commit bank fraud. At the time of the plea, Parker had
served approximately 14 months in pre-trial detention, and was released on conditions.

         At the sentencing proceeding on August 25, 2010, the District Court first considered the
Sentencing Guidelines. The Pre-Sentence Report (“PSR”) assigned a total offense level of 10 and a
level IV criminal history, which yielded an advisory range of imprisonment for the bank fraud count
of 15 to 21 months. The District Court also noted that it was not bound by the Guidelines, and that
it must consider the sentencing factors enumerated under 18 U.S.C. § 3553(a), “including the nature
of the offense; the history and characteristics of the particular defendant; the need for the sentence
to reflect the seriousness of the offense; to promote respect for the law; to provide just punishment;
to afford adequate deterrence; and to protect the public.” After considering the unique facts of the
case, the District Court concluded that an upward departure from the Guidelines range was
necessary to account appropriately for the factors under § 3553(a) and sentenced Parker to a 30-
month term of imprisonment. On August 30, 2010, the District Court filed a written judgment
setting forth the reasons for its sentence.

       On October 13, 2010, Parker failed to self-surrender to the designated correctional facility in
New York as he had been instructed to do by letter from the U.S. Marshals Service. He was finally
apprehended in Tuscaloosa, Alabama on or about February 13, 2011, where he was charged with
Obstructing Justice Using a False Identification for conduct unrelated to the present case.

                                                    I.
         We review the District Court’s sentence determination under a “deferential abuse-of-
discretion standard.” 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)). This review includes both procedural and substantive
components. A sentence is procedurally reasonable as long as the District Court did not commit a
“significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at
51.

        Assuming the sentence is procedurally sound, we then “consider the substantive
reasonableness of the sentence imposed, . . . tak[ing] into account the totality of the circumstances.”
Id. When a sentence falls outside the Guidelines range, we “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance,” id., and will
reverse only when the sentence “cannot be located within the range of permissible decisions,”
Cavera, 550 F.3d at 189 (internal quotation marks omitted).




                                                     2
                                                 II.
       The District Court did not abuse its discretion in sentencing Parker to a 30-month term of
imprisonment after he pled guilty to bank fraud pursuant to a written plea agreement; the sentence
was both procedurally and substantively reasonable.

         First, the sentence was procedurally reasonable because the District Court did not commit a
“significant procedural error” in deciding Parker’s sentence. See Gall, 552 U.S. at 51. The District
Court considered the Guidelines and the sentencing factors under 18 U.S.C. § 3553(a), and
determined, based on an individualized assessment of the facts, that an upward departure from the
advisory guidelines range was appropriate. It then adequately explained the reasons for its chosen
sentence during the sentencing proceeding and in a written judgment. Of particular concern to the
District Court, Parker had a recent history of committing similar crimes, for which he had generally
received lenient treatment, such as probation. Moreover, the District Court found that Parker’s state
conviction for witness intimidation and prior noncompliance with the terms of a probation sentence
demonstrated a general disregard for the law. Based on its individualized assessment of the facts,
the District Court concluded that the PSR’s assignment of a level IV criminal history
“underestimate[d] both the seriousness of [Parker’s] conduct and especially the likelihood that
[Parker would] offend again.” (Sentencing Hr’g Tr., Aug. 25, 2010, at 13:12-17.) Accordingly, the
District Court settled on a non-Guidelines sentence of a 30-month term of imprisonment to account
for relevant § 3553(a) factors, including the need for the sentence to promote respect for the law,
afford adequate deterrence, and protect the public. The procedure followed by the District Court in
deciding the appropriate sentence was thus proper and reasonable. See Gall, 552 U.S. at 49-50 & n.6.

         Second, the sentence was substantively reasonable because the District Court assessed the
facts and concluded that the § 3553(a) factors, on a whole, justified a nine-month departure from the
Guidelines range. The District Court was best positioned to determine the appropriate sentence in
light of the facts before it and it dutifully exercised its informed discretion in forming an
individualized sentence. See Cavera, 550 F.3d at 191. The nine-month departure from the Guidelines
was entirely reasonable based on the full record before the District Court and the factors on which it
relied, and which it stated from the bench during sentencing and in its judgment. Accordingly, the
District Court’s sentence is entitled to deference. See Gall, 552 U.S. at 51.

                                         CONCLUSION
        We have considered all of Parker’s arguments on appeal and find them to be without merit.
For the reasons stated above, the order of the District Court is AFFIRMED.



                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




                                                  3
