16-3732-cr
United States of America v. Robert Darin Crute

                     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 7th day of November, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             ROBERT D. SACK,
             BARRINGTON D. PARKER,
                             Circuit Judges.

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    United States of America,
             Appellee,

                 -v.-                                               16-3732

    Robert Darin Crute,
             Defendant-Appellant.
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    FOR APPELLANT:                        Federal Defenders of New York,
                                          Inc. Appeals Bureau, New York,
                                          New York.

    FOR APPELLEES:                        Bridget M. Rohde, Acting United
                                          States Attorney (Susan Corkery,
                                          Hiral D. Mehta, Assistant United


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                           States Attorneys, on the brief),
                           Brooklyn, New York.

     Appeal from a judgment of the United States District
Court for the Eastern District of New York (Irizarry, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Robert Darin Crute appeals from the judgment of the
United States District Court for the Eastern District of New
York sentencing him to forty-eight months in prison for
violating the terms of supervised release. We assume the
parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     Robert Crute pled guilty in 1993 to conspiracy to
distribute crack cocaine and was sentenced to 188 months in
prison and five years of supervised release. Two years into
his sentence, Crute assaulted a correctional officer with
scalding water, causing first and second degree burns to her
face. The court sentenced Crute to ninety-six months in
custody to run consecutively with his narcotics sentence.
After twenty years in prison, Crute was released to
supervision in December 2013.

     In 2015, Crute pled guilty to two violations of
supervised release: the state crimes of possession of
cocaine and possession of a loaded weapon. The court
erroneously calculated a criminal history category of VI and
on that basis sentenced Crute to five years in prison.
Crute appealed, arguing his criminal history was in fact IV,
not VI; the Second Circuit vacated the sentence due to the
procedural error and remanded. On resentencing, defense
counsel requested a Guidelines sentence of twenty months.

     Judge Irizarry imposed a four year sentence, one year
less than Crute’s previous sentence under the erroneous
criminal history category VI but more than double the
Guidelines range. The court explained that in light of
Crute’s litany of past offenses and his conviction during
incarceration--which was not reflected in the guidelines
calculation for the supervised release violation--the
assigned category IV under-represented Crute’s true criminal
history. It also noted that Crute had recidivist
tendencies, and that despite spending nearly half his life

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in prison, he had been “treated rather leniently” by the
justice system given the severity of his conduct and the
offenses that the government had available but declined to
charge.

     Crute challenges the upward variance as procedurally
and substantively unreasonable. Our reasonableness review
for a criminal sentence mirrors review for abuse of
discretion. United States v. Cavera, 550 F.3d 180, 187 (2d
Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 46
(2007)). This discretion is broad: although district courts
should consult the Sentencing Guidelines when imposing
sentence, they are not bound by the range and may “tailor
the appropriate punishment to each offense....” Id.; see
United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir.
2008) (noting the Sentencing Commission policy statements
are only advisory and are not binding on the district
court).

     1.    Procedural reasonableness review considers
whether the district court provided an adequate explanation
of the sentence in compliance with 18 U.S.C. § 3553(a),
which sets forth a non-exhaustive set of considerations for
sentencing. See Verkhoglyad, 516 F.3d at 128. “[W]e
presume that a sentencing judge has faithfully discharged
her duty to consider the statutory factors,” and “do not
require robotic incantations” with respect to each of the
Section 3553(a) factors. United States v. Wagner-Dano, 679
F.3d 83, 89 (2d Cir. 2012) (internal quotation marks
omitted). The weight accorded any particular factor “is a
matter firmly committed to the discretion of the sentencing
judge....” Verkhoglyad, 516 F.3d at 131 (internal citations
and quotation marks omitted).

     Crute contends that the district court offered no
reasoned basis to justify the upward variance in his
sentence. But the district court discussed at some length
its reasons for adopting a higher sentence, including
considerations contemplated by the Section 3553(a) factors.
See J. App’x at 155-58. For example, Crute was sentenced
for his assault on a correctional officer in 1995 after
imposition of the sentence that formed the basis for his
supervised release in 1993. According to the Commentary to
the Sentencing Guidelines, “an upward departure may be
warranted when a defendant, subsequent to the federal
sentence resulting in supervision, has been sentenced for an
offense that is not the basis of the violation proceeding.”

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U.S.S.G. § 7B1.4 n.2. The district court therefore did not
err by making an upward departure “to take the new offense
into account.” United States v. Cawley, 48 F.3d 90, 92 (2d
Cir. 1995).

     Crute seeks to counter the district court’s
observations that Crute had a lengthy criminal history and
violated the trust of the court. He points out that these
are features of every supervised release case and not
grounds for imposing additional sanction. However, the
district court is permitted to consider the severity of the
conduct and criminal history in order “to determine the
extent to which [defendant’s conduct] reflected a betrayal
of the court’s trust....” Verkhoglyad, 516 F.3d at 132; 18
U.S.C. § 3553(a)(1) (directing courts to consider “the
nature and circumstances of the offense and the history and
characteristics of the defendant”). Here, the court
provided additional context that justified, in its
discretion, a harsher sentence: the possession and heavy
involvement of firearms in Crute’s crimes; the odious nature
of the prison assault; and the pattern of Crute’s return to
drug and firearm-related crimes almost immediately after
release from prison. Crute’s procedural unreasonableness
claim fails.

     2.    Substantive reasonableness doctrine serves as a
“backstop for those few cases that, although procedurally
correct, would nonetheless damage the administration of
justice because the sentence imposed was shockingly high,
shockingly low, or otherwise unsupportable as a matter of
law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.
2009). We consider the totality of the defendant’s
circumstances, and 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.’” Cavera, 550 F.3d at 189
(internal citation omitted); see Rigas, 583 F.3d at 123
(substantive reasonableness “provide[s] relief only in the
proverbial ‘rare case’”).

     We cannot say that this is such an exceptional case.
The record reveals the district court’s thoughtful
consideration of the defendant’s individual circumstances.
The judge considered the crimes involving narcotics
distribution and firearms (and the seriousness of possible
un-charged additional violations), the history of
recidivism, and the damage actually inflicted to victims,

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such as the correctional officer. See Kimbrough v. United
States, 552 U.S. 85, 109-10 (2007); Cavera, 550 F.3d at 191.
Given the totality of the circumstances and our deference to
the district court’s discretion in applying the Section
3553(a) factors, the sentence was substantively reasonable.
See Rigas, 583 F.3d at 123-24.

     For the foregoing reasons, and finding no merit in
Crute’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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