12-3286-cr
United States of America v. Loheit


                           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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
15th day of October, two thousand thirteen.

Present:    JON O. NEWMAN,
            ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                        -v-                                                12-3286-cr

TANISHA LOHEIT,
                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:      Nicholas J. Pinto, New York, N.Y.

Appearing for Appellee:       Rajit Dosanjh, Assistant United States Attorney for the Northern
                              District of New York (Richard S. Hartunian, United States
                              Attorney for the Northern District of New York, Daniel Hanlon,
                              Assistant United States Attorney, on the brief) Syracuse, NY

        Appeal from the United States District Court for the Northern District of New York
(Scullin, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
       Tanisha Loheit appeals from the August 13, 2012 judgment of the United States District
Court for the Northern District of New York (Scullin, J.) following her guilty plea to one count
of escape from custody in violation of 18 U.S.C. § 751(a). We assume the parties’ familiarity
with the underlying facts, procedural history, and specification of issues for review.

         “We review a district court's sentencing decision for procedural and substantive
reasonableness.” United States v. Wernick, 691 F.3d 108, 113 (2d Cir. 2012). “A district court
commits procedural error where it makes a mistake in its Guidelines calculation, does not
consider the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact.” Id.
(internal quotation marks omitted). When reviewing for substantive reasonableness, “we will not
substitute our own judgment for the district court's on the question of what is sufficient to meet
the § 3553(a) considerations in any particular case.” United States v. Cavera, 550 F.3d 180, 189
(2d Cir. 2008). “We will instead 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.” Id. (internal quotation marks and emphasis omitted). We review the
sentence of the district court under a “deferential abuse-of-discretion standard.” Id. (internal
quotation marks omitted). However, when a defendant fails to object to procedural error before
the district court, “rigorous plain error analysis is appropriate.” United States v. Villafuerte, 502
F.3d 204, 208 (2d Cir. 2007).

        Loheit’s primary argument is that the district court failed to address the mitigating
circumstances she raised in her sentencing memorandum as a grounds for either a downward
departure or for having the sentence run concurrent with the sentence imposed for her underlying
crime. However, a district court’s failure to discuss any possible mitigating factors on the record
does not constitute procedural error. The district court stated it read and adopted the presentence
report (“PSR”), and that it had read and considered the sentencing memoranda submitted by the
parties, all of which addressed the mitigating factors. “[T]here is no requirement that the court
mention the [18 U.S.C. § 3553(a) factors, much less explain how each factor affected the court’s
decision. In the absence of contrary indications, courts are generally presumed to know the laws
that govern their decisions and to have followed them.” United States v. Banks, 464 F.3d 184,
190 (2d Cir. 2006).

         Loheit also argues that the district court failed to recognize that pursuant to United States
v. Booker, 543 U.S. 220 (2005), it could impose a concurrent sentence, rather than a consecutive
one, because the Guidelines are no longer mandatory. A decision not to downwardly depart is
generally not reviewable unless “a sentencing court misapprehended the scope of its authority to
depart or the sentence was otherwise illegal.” United States v. Stinson, 465 F.3d 113, 114 (2d
Cir. 2006) (internal quotation marks omitted). Here, nothing in the record suggests that the
district court failed to understand its authority to depart from the Guidelines range—an argument
raised by Loheit in her sentencing memorandum, which the district court considered. Moreover,
the district court explicitly recognized at the time of Loheit’s plea that the Guidelines were not
binding on its sentencing recommendations.”

         Finally, Loheit argues that the district court failed to satisfy the requirement of 18 U.S.C.
§ 3553(c) that the district court “at the time of sentencing . . . state in open court the reasons for
its imposition of the particular sentence.” It is true that the district court did not put any reasons
for its sentence on the record, or make any reference to the Section 3553 sentencing factors.

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“[T]he failure of the . . . [c]ourt to give its reasons for enhancing defendant's sentence in open
court we think troublesome.” United States v. Molina, 356 F.3d 269, 278 (2d Cir. 2004). A
fuller record would have eased this Court’s review, and perhaps have satisfied Loheit’s concerns
in the first instance. Nevertheless:

               Establishing that a sentencing court failed to fulfill the “open
               court” requirement is not, however, tantamount to establishing
               plain error. . . . [f]ailure to satisfy the open court requirement of §
               3553(c) does not constitute “plain error” if the district court relies
               on the PSR, and the factual findings in the PSR are adequate to
               support the sentence.

United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (internal citations and quotations
omitted). As in Espinoza, the district court here stated on the record that it relied on the findings
of the PSR, and the findings in the PSR are sufficient to support the sentence, so there can be no
finding of plain error. See id. at 213.

       As to Loheit’s substantive objection to the sentence as unreasonable, that claim is without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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