     10-2210-cr
     United States of America v. Martini (Cassesse)

1                                      UNITED STATES COURT OF APPEALS

2                                              FOR THE SECOND CIRCUIT

3                                                     August Term 2011

4    Argued: April 3, 2012                                          Decided: July 11, 2012

5                                              Amended: July 25, 2012

6                                               Docket No. 10-2210-cr

 7   - - - - - - - - - - - - - - - - - - - - - - - -
 8   UNITED STATES OF AMERICA,
 9             Appellee,
10
11                                        v.
12
13   MICHAEL CASSESSE,
14             Defendant-Appellant.1
15   - - - - - - - - - - - - - - - - - - - - - - - -

16   Before: NEWMAN, KATZMANN, and PARKER, Circuit Judges.

17              Appeal from the June 19, 2009, judgment of the United States

18   District Court for the Eastern District of New York (Sandra L. Townes,

19   District          Judge),          sentencing         the   Defendant for a racketeering

20   conviction and for a violation of supervised release.                         The Defendant

21   contends that twelve months of imprisonment imposed for the supervised

22   release violation should have been subtracted from the lifetime term

23   of supervised release also imposed for tht violation.

24              Affirmed.

25                                                        Bradley W. Moore, New Haven, Conn.
26                                                             (James I. Glasser, Wiggin and
27                                                             Dana LLP, New Haven, Conn., on
28                                                             the   brief),  for   Defendant-
29                                                             Appellant.

            1
             The Clerk is directed to change the official caption.
     1
     2                                    Amy Busa, Asst. U.S. Atty., Brooklyn,
     3                                         N.Y. (Loretta E. Lynch, U.S.
     4                                         Atty. for the Eastern District of
     5                                         New York, Peter A. Norling, Asst.
     6                                         U.S. Atty., Brooklyn, N.Y., on
     7                                         the brief), for Appellee.
     8

     9    JON O. NEWMAN, Circuit Judge.

10            This appeal presents primarily the almost metaphysical issue of

11       how, if at all, a lifetime term of supervised release, imposed for a

12       supervised release violation, should be reduced by the number of

13       months of a prison term imposed for that same violation, a subtraction

14       we are willing to assume is required by the literal terms of the

15       provisions governing supervised release.   Defendant-Appellant Michael

16       Cassesse appeals from the June 19, 2009, judgment of the District

17       Court for the Eastern District of New York (Sandra L. Townes, District

18       Judge) revoking his previous term of lifetime term of supervised

19       release and sentencing him to a term of twelve months in prison

20       followed by a renewed lifetime term of supervised release.   We affirm.

21                                    Background

22            In 1987, Cassesse was convicted of conspiracy to distribute

23       heroin and sentenced to five years’ probation. In 1991, he was

24       convicted of possession with intent to distribute more than 500 grams

25       of heroin and sentenced to 87 months of imprisonment, a consecutive

26       term of 87 months for violating his probation, and a lifetime term of

27       supervised release, the maximum possible term of supervised release
28       under the statute. See 21 U.S.C. § 841(b)(1)(B) (1991).      One of the

29       conditions of lifetime supervised release for the narcotics offense

30       was that Cassesse refrain from new criminal conduct.

                                            2
 1         In 2007, while Cassesse was out of prison but continuing to serve

 2   his term of supervised release, he was indicted on several new

 3   charges, including racketeering in violation of 18 U.S.C. § 1962.

 4   Cassesse was subsequently charged with violating a condition of

 5   supervised release by committing a new crime.                Following his guilty

 6   plea to the racketeering charge, the District Court sentenced Cassesse

 7   for   both the racketeering conviction and the supervised-release

 8   violation.

 9         Speaking with respect to the racketeering offense, Judge Townes

10   noted that she had considered all of the submitted documents, all of

11   the statements made by the defense, the United States Sentencing

12   Guidelines (“the Guidelines”), and the factors enumerated by 18 U.S.C.

13   § 3553(a), including the Defendant’s history and characteristics, the

14   nature of the crime committed, and the need for specific and general

15   deterrence.    Judge Townes noted that Cassesse’s racketeering offense

16   was a violation of his term of supervised release:
17         He committed the crime to which he pled guilty [ i.e.,
18         racketeering] while serving . . . a term of supervised
19         release. Mr. Cassesse’s difficulties in life do not relieve
20         him of his responsibilities for [the consequences of]
21         continuing to commit crimes. [Yet] he does not seem
22         inclined to stop. . . . I truly don’t think Mr. Cassesse
23         has fully accepted responsibility for his criminal conduct.
24         I believe he’s just been caught.
25
26         The    District   Court   imposed      a    sentence     of   90 months of

27   imprisonment     and    three   years   of       supervised    release   for   the

28   racketeering crime.

29         Judge Townes next turned to the violation of supervised release.

30   At this point the parties presented to the Court a plea agreement, in

                                             3
 1   which Cassesse apparently agreed to plead guilty to the supervised

 2   release violation in exchange for the Government’s recommendation that

 3   any additional prison term for that violation be served concurrently

 4   with the 90-month racketeering sentence.              The parties agreed that the

 5   relevant advisory range for the supervised release violation was six

 6   to twelve months of imprisonment.

 7        The District Court accepted Cassesse’s guilty plea but rejected

 8   the parties’ recommendation of a concurrent term, imposing instead a

 9   sentence of twelve months of imprisonment for the supervised release

10   violation   to   run   consecutively       to   the    90   month   term   for   the

11   racketeering conviction.     Having revoked the previously imposed term

12   of lifetime supervised release for the narcotics violation, the

13   District Court then imposed a new lifetime term of supervised release.

14        Although Judge Townes provided no detailed explanation for the

15   sentence for the supervised release violation, she stated, “I have

16   reviewed everything.”     At the conclusion of the hearing, defense

17   counsel objected to the lifetime term of supervised release but did

18   not object either to the Court’s failure to subtract the twelve month

19   term of imprisonment from it or to the brevity of the Court’s

20   explanation of that term.

21                                   Discussion

22   A.   Standard of Review

23        On appeal, sentences may be challenged for substantive and
24   procedural reasonableness. See United States v. Verkhoglyad, 516 F.3d
25   122, 127 (2d Cir. 2008).    Cassesse argues on appeal that the lifetime


                                            4
 1   term of supervised release should somehow have been reduced by twelve

 2   months, which is a procedural objection.              Although Cassesse did not

 3   specifically object in the District Court to the lack of a twelve

 4   month reduction, we will assume that his general objection to the

 5   length of the new lifetime term comprehended this point.               Because this

 6   claim presents a question of statutory interpretation, we review the

 7   District Court’s decision de novo.           See United States v. Aleynikov,

 8   676 F.3d 71, 76 (2d Cir. 2012).

 9         Cassesse also complains that the District Court inadequately

10   explained its reasons for the lifetime term, which is a procedural

11   objection, and in the absence of any objection in the District Court,
12   plain error review applies. See United States v. Villafuerte, 502 F.3d
13   204, 208, 211 (2d Cir. 2007) (holding that “rigorous” plain error

14   analysis applies to unpreserved claims of procedural sentencing error

15   under 18 U.S.C. § 3553(a) and (c)).2

16   B. Whether and How to Reduce the Lifetime Term of Supervised Release

17         Cassesse contends that the District Court erred when, after

18   revoking his previously imposed term of lifetime supervised release

19   for   his   narcotics   offense,   it       imposed    both   twelve    months   of

20   imprisonment and a new lifetime term of supervised release for the

21   supervised release violation.      More specifically, he contends that the


           2
           Although we have questioned the appropriateness of plain error
     review where a sentencing error allegedly increased a sentence, see
     United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002), we see
     no reason to weaken the plain error standard where a court has
     allegedly inadequately fulfilled a long-standing and uncomplicated
     procedural requirement of sentencing. See Villafuerte, 502 F.3d at
     208, 211.

                                             5
 1   District Court was required by statute to deduct the former from the

 2   latter, limiting the supervised release term to something at least

 3   twelve months less than the “lifetime” maximum authorized for the

 4   narcotics violation for which his original term of supervised release

 5   was imposed.

 6        Sentencing for a violation of supervised release is governed by

 7   18 U.S.C. § 3583.    The parties agree that the relevant form of section

 8   3583 is the one that was in force in 1991, at the time that Cassesse

 9   was sentenced to his original lifetime term of supervised release. See
10   United States v. Smith, 354 F.3d 171, 172 (2d Cir. 2003).          The version

11   of section 3583 in effect in 1991 provides in relevant part:

12        The court may . . . revoke a term of supervised release, and
13        require the person to serve in prison all or part of the
14        term of supervised release without credit for time
15        previously served on postrelease supervision, if it finds by
16        a preponderance of the evidence that the person violated a
17        condition of supervised release . . . .
18
19   18 U.S.C. § 3583(e)(3) (1991).           The 1991 version is silent on the

20   question of whether a renewed term of supervised release may be

21   imposed in addition to a prison term as punishment for a supervised

22   release violation.      Interpreting this version of the statute, the
23   Supreme Court in Johnson v. United States, 529 U.S. 694 (2000),
24   concluded that a court may “revoke the release term and require

25   service of a prison term equal to the maximum authorized length of a

26   term of supervised release.” id. at 705.          Moreover, the Court added,

27   because a term of supervised release “continues . . . after revocation

28   even when part of it is served in prison, . . . the balance of it []

29   remain[s]   effective    as   a   term    of   supervised   release when the

                                              6
 1   incarceration is over[.]” Id. at 706.            As we have noted, section

 2   841(b)(1)(B) provided for the original term of supervised release and

 3   authorized a maximum term of lifetime supervised release.               In 1994,

 4   before Johnson was decided, but after Cassesse was sentenced, Congress

 5   amended the supervised release provisions to provide explicitly that

 6   a renewed term of supervised release may be imposed for a supervised

 7   release violation.       See Violent Crime Control and Law Enforcement Act

 8   of 1994, Pub. L. No. 103-322, § 110505, 108 Stat. 1796, 2017, codified
 9   at 18 U.S.C.    § 3583(h).     The amending language not only authorized a

10   renewed term of supervised release not to exceed the maximum allowable

11   for   the   underlying    violation,    but   also   introduced   the   concept,

12   relevant to this appeal, of a reduction of the maximum allowable term

13   of supervised release by the length of time spent in prison for the

14   supervised release violation.          The amendment added section 3583(h),

15   which provides:

16         When a term of supervised release is revoked and the
17         defendant is required to serve a term of imprisonment, the
18         court may include a requirement that the defendant be placed
19         on a term of supervised release after imprisonment. The
20         length of such a term shall not exceed the term of
21         supervised release authorized by statute for the offense
22         that resulted in the original term of supervised release,
23         less any term of imprisonment that was imposed upon
24         revocation of supervised release.
25
26    18 U.S.C. § 3583(h) (2012) (emphasis added).

27         Both parties agree, in effect, that once the Supreme Court ruled

28   in Johnson that a renewed term of supervised release may be imposed

29   for violations that occurred under the 1991 version of section

30   3583(e)(3), the imprisonment reduction concept of the later enacted


                                              7
 1   section 3583(h) should apply to such a renewed term.   The Appellant

 2   reasons as follows:

 3        Under current law, “[t]he length of such a term of
 4        supervised release shall not exceed the term of supervised
 5        release authorized by statute for the offense that resulted
 6        in the original term of supervised release, less any term of
 7        imprisonment that was imposed upon revocation of supervised
 8        release.” 18 U.S.C. § 3583(h); see also USSG § 7B1.3(g)(2).
 9        The law in effect when Mr. Cassesse committed his narcotics
10        offense is to the same effect, even though the underlying
11        statutory basis is different. As the Supreme Court stated,
12        under Section 3583(e):
13
14             [I]t is not a “term of imprisonment” that is to
15             be served, but all or part of “the term of
16             supervised release.” But if “the term of
17             supervised release” is being served, in whole or
18             part, in prison, then something about the term of
19             supervised release survives the preceding order
20             of revocation.
21
22        Johnson, 529 U.S. at 705. Thus, if some “part” of the term
23        of supervised release is served in prison after a violation,
24        then the “part” of the term that remains after that prison
25        sentence is served is less than the whole, original release
26        term.
27
28        . . .
29
30        Thus, the pre-1994 Section 3583(e) and the current Section
31        3583(h) are in accord on this point. That is, any reimposed
32        supervised-release term must be reduced by the length of the
33        prison term the defendant serves for the violation.
34
35   Brief for Appellant at 14-16 (footnote omitted).
36
37        The Government essentially reaches the same result by contending

38   that although “the pre-1994 version of § 3583(e) did not require

39   subtraction of the incarceratory sentence,” it did require that “the

40   combined term of supervised release and incarceration did not exceed

41   the original term of supervised release.” Brief for Appellee at 26.

42   Thus, for example, if the prior term of supervised release was ten

43   years and the period of incarceration for the violation was one year,

                                       8
 1   the only way the “combined term” could not exceed the original term is

 2   if the one year term of imprisonment is subtracted from the prior ten

 3   years of supervised release, yielding a maximum allowable renewed term

 4   of nine years.

 5        The intriguing question is whether and how the prison term

 6   reduction concept applies to a renewed lifetime term of supervised

 7   release.   The Government elides this question by converting the

 8   subtraction concept into an addition concept.     It observes that

 9   although Cassesse’s one year term in prison plus the renewed lifetime

10   term of supervised release “may equal the original lifetime term of

11   supervised release, they do not exceed it.” Id.

12        Cassesse advances the subtraction concept and insists that his

13   one year of imprisonment must somehow be subtracted from his lifetime

14   term of supervised release.   He suggests three techniques.   First, he

15   contends that the lifetime term should be abandoned in favor of a

16   fixed term of years from which the one year term of imprisonment would

17   be subtracted. See Brief for Appellant at 21.     Second, he suggests

18   that the lifetime term of supervised release should be converted to

19   the corresponding offense level 43 in the Sentencing Table of the

20   Sentencing Guidelines from which some appropriate reduction should be

21   made, after which the reduced offense level would presumably be
22   converted back into a term of years. Cf. United States v. Nelson, 491
23   F.3d 344, 349 (7th Cir. 2007) (affirming conversion of mandatory life

24   sentence to offense level 43 and then reducing that level by 40

25   percent to reflect substantial assistance).   Third, he suggests that


                                       9
 1   one year could be subtracted from his life expectancy at the time of

 2   sentencing.3

 3        Intriguing as are the question and some possible answers to it,

 4   we conclude that the more appropriate course is simply to recognize

 5   that this is one of those rare situations where Congress did not

 6   expect the literal terms of its handiwork to be applied to a lifetime

 7   term of supervised release, even if we assume that the subtraction

 8   concept of section 3583(h) should be applied to a fixed term of

 9   supervised release imposed under the pre-1994 version of section
10   3583(e)(3). Cf. Holy Trinity Church v. United States, 143 U.S. 457,
11   472 (1892) (statute prohibiting prepayment of transportation of alien

12   into United States to perform service of any kind held inapplicable to

13   church’s contract to bring resident of England to render service as

14   rector and pastor, even though contract was “within the letter” of

15   statute).

16        First,    it   is   highly   unlikely   that   Congress   expected   the

17   subtraction concept to be applied to a lifetime term of supervised

18   release.    Second, even if a sentencing judge were to feel obliged to

19   make a subtraction in some fashion, the judge could easily circumvent

20   such a requirement by selecting a supervised release term of many

21   years, 99 for example, and then imposing a term of “only” 98 years.


          3
           A variant of Cassesse’s third suggestion was offered by the
     Seventh Circuit, in the context of a reduction for substantial
     assistance from a mandatory life sentence.    That Court suggested
     making the substantial assistance reduction from 470 months, the
     average life expectancy of federal defendants at the time of
     sentencing, as determined by the United States Census Bureau. See
     Nelson, 491 F.3d at 349-50.

                                           10
 1   Third, use of the defendant’s life expectancy would introduce a

 2   variable bearing little, if any, relation to penological purposes for

 3   defendants who outlive their life expectancy and would introduce

 4   reverse age discrimination.      We conclude that the unadjusted lifetime

 5   term of supervised release was not unlawful. See United States v.

 6   Rausch,   638   F.3d   1296,   1303   (10th   Cir.   2011)   (“Because   it   is

 7   impossible to predict the precise length of any individual’s life, a

 8   [supervised release] sentence of ‘life less two years[‘ imprisonment]’
 9   has only conceptual--not practical--meaning.”). But see United States
10   v. Shorty, 159 F.3d 312, 316 (7th Cir. 1998) (“[T]he maximum amount of

11   supervised release possible would have been life minus the amount of

12   imprisonment imposed during the sentencing for revocation”; no method

13   of subtraction suggested).4

14   C. Explanation of Sentence

15        Cassesse contends that the District Court committed procedural

16   error during the sentencing for his supervised release violation by

17   failing to consider the statutory factors required by 18 U.S.C.

18   § 3583(e) and by failing to explain the reasons for the sentence as

19   required by 18 U.S.C. § 3553(c).        The statutory requirements are set




          4
           We note that in a recent summary order,      United States v.
     McNaught, 396 F. App’x 772 (2d Cir. 2010), our Court appeared to
     endorse Cassesse’s argument. See id. at 774 (stating that section
     3583(h) “required the district court to subtract Appellant’s term of
     30 months’ imprisonment from the maximum lifetime term of supervised
     release”). That statement, made without considering whether or how
     such a subtraction should be made, was dictum; the holding was that a
     five-year term of supervised release was lawful. In any event, the
     summary order in McNaught was non-precedential. See 2d Cir. I.O.P.
     32.1.1.


                                            11
1   out in the margin.5

2        The District Court’s failure to explicitly consider the section

3   3553(a) factors does not rise to the level of plain error.    “As long

4   as the judge is aware of both the statutory requirements and the

5   sentencing range or ranges that are arguably applicable, and nothing

         5
          Section 3583(e) requires courts to “consider[]” a subset of the
    section 3553(a) factors, namely:

        (1)    the nature and circumstances of the offense and the
               history and characteristics of the defendant;
        (2)    the need for the sentence imposed--
               . . .
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the
                     defendant; and
               (D) to provide the defendant with needed educational
                     or vocational training, medical care, or other
                     correctional treatment in the most effective
                     manner;
               . . .
        (4)    the kinds of sentence and the sentencing range
               established for--
               . . .
               (B) in the case of a violation of . . . supervised
                     release, the applicable guidelines or policy
                     statements issued by the Sentencing Commission
                     pursuant to section 994(a)(3) of title 28 . . . ;
        (5)    any pertinent policy statement . . . issued by the
               Sentencing Commission . . . that . . . is in effect on
               the date the defendant is sentenced[;]
        (6)    the need to avoid unwarranted sentence disparities
               among defendants with similar records who have been
               found guilty of similar conduct; and
         (7)   the need to provide restitution to any victims of the
               offense.

    18 U.S.C. § 3553(a).

         Section 3553(c) provides:

         The court, at the time of sentencing, shall state in open
         court the reasons for its imposition of the particular
         sentence.

    18 U.S.C. § 3553(c).

                                      12
 1   in the record indicates misunderstanding about such materials or

 2   misperception about their relevance, we will accept that the requisite

 3   consideration [required by 18 U.S.C. § 3583(e)] has occurred.” United

 4   States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005).             Here, there is

 5   every reason to believe that Judge Townes knew she had to consider,

 6   and did consider, the relevant statutory factors.               She thoroughly

 7   considered nearly identical factors during her discussion of the

 8   racketeering conviction that resulted from the same criminal acts.

 9   During    that   discussion,   moreover,   she      commented    on   Cassesse’s

10   supervised release violation and how that violation affected her

11   overall    assessment   of   the   Defendant   as    an   unremorseful   repeat

12   offender.    Then, after turning specifically to the supervised release

13   violation itself, in lieu of a detailed explanation she stated

14   generally, “I have reviewed everything.”            Finally, the record shows

15   that Judge Townes was aware of the appropriate policy statements and

16   the relevant advisory terms of imprisonment.

17        The    explanation requirement of section 3553(c) is also

18   sufficiently satisfied to preclude a finding of plain error.             Section

19   3553(c) requires no specific formulas or incantations; rather, the

20   length and detail required of a district court’s explanation varies
21   according to the circumstances. See Villafuerte, 502 F.3d at 210.
22   Where, as here, the sentence concerns a violation of supervised

23   release and the ultimate sentence is within the recommended range             ,

24   compliance with the statutory requirements can be minimal.                  See

25   Verkhoglyad, 516 F.3d at 132-33 (“[A] court’s statement of its reasons
26   for going beyond non-binding policy statements in imposing a sentence

                                           13
 1   . . . need not be as specific as has been required when courts

2    departed from [G]uidelines . . . .” (emphases original)); Villafuerte,

3    502 F.3d at 210 (“When the district court imposes a Guidelines

4    sentence, it may not need to offer a lengthy explanation . . . .”).

5    Furthermore, section 3553(c) has likely been satisfied when a court’s

6    statements meet the goals “of (1) informing the defendant of the

7    reasons for his sentence, (2) permitting meaningful appellate review,

8    (3)   enabling   the   public    to   learn   why   the   defendant   received   a

9    particular sentence, and (4) guiding probation officers and prison
10   officials in developing a program to meet the defendant’s needs.” Id.
11         The District Court adequately fulfilled its duties under the

12   statute, and the error, if any, was not plain.               First, Judge Townes

13   briefly described some reasons for her supervised release violation

14   sentence,   stating    that     she   would   not   reduce    the   sentence for

15   Cassesse’s cooperation because she had already given him credit for

16   that in her racketeering sentence and noting that Cassesse differed

17   from his co-defendants because he was the only one with a violation of

18   supervised release.      Second, and more importantly, Judge Townes’s

19   intertwined analysis of the supervised release violation and the

20   racketeering crime clearly provided a sufficient explanation of the

21   sentence she ultimately imposed for the violation.
22         United States v. Lewis, 424 F.3d 239 (2d Cir. 2005), upon which
23   Cassesse principally relies, involved quite different circumstances.

24   First, in Lewis the District Court imposed a sentence above that

25   recommended by the relevant Sentencing Commission policy statements,

26   triggering a higher descriptive obligation on the part of the District

                                             14
 1   Court.   Id. at 245; see 18 U.S.C. § 3553(c)(2) (requiring district

 2   court to provide “the specific reason for the imposition of a sentence

 3   different from that described” in the relevant policy statements or

 4   Guidelines).   Second, unlike inLewis, Judge Townes provided a lengthy

 5   explanation,   albeit   one   that   technically   occurred   during   the

 6   discussion of a different (but closely related) crime.

 7                                  Conclusion

 8        For the foregoing reasons, the judgment of the District Court is

 9   affirmed.

10

11




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