14-3683-cr
United States v. Ivory


                          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 24th day of November, two thousand fifteen.

PRESENT: AMALYA L. KEARSE,
                 REENA RAGGI,
                 RICHARD C. WESLEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                                No. 14-3683-cr

ANTHONY IVORY,
                                 Defendant-Appellant. 1

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FOR APPELLANT:                                   Anthony Collins, Collins & Martin, P.C.,
                                                 Wethersfield, Connecticut.

FOR APPELLEE:                                    Patrick F. Caruso, Marc H. Silverman, Assistant
                                                 United States Attorneys, for Deirdre M. Daly,
                                                 United States Attorney for the District of
                                                 Connecticut, New Haven, Connecticut.

1
    The Clerk of Court is directed to amend the official caption as shown above.


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       Appeal from a judgment of the United States District Court for the District of

Connecticut (Ellen Bree Burns, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on October 10, 2014, is AFFIRMED.

       Defendant Anthony Ivory, who was sentenced in 2011 to time served and three

years’ supervision for conspiring to traffic heroin, now appeals from a 24-month prison

sentence imposed following the 2014 revocation of his supervision. Ivory contends that

the sentence is procedurally unreasonable because the district court failed to state its

reasons for imposing the 24-month sentence or for running it consecutive to a state

sentence on the underlying criminal conduct. We assume the parties’ familiarity with the

facts and record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.

       Our review of the procedures employed in arriving at a challenged sentence is

limited to “reasonableness.” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.

2008) (internal quotation marks omitted); see also United States v. McNeil, 415 F.3d 273,

277 (2d Cir. 2005). Because Ivory did not object in the district court to the alleged

failure to state reasons for the imposed sentence, we review only for plain error. See

United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007); see also United States v.

Marcus, 560 U.S. 258, 262 (2010) (stating that plain error requires showing of (1) error,

(2) that is clear or obvious, (3) affecting substantial rights, and (4) calling into question

fairness, integrity, or public reputation of judicial proceedings). Ivory’s challenge fails at

the first step of analysis.

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       Title 18 U.S.C. § 3553(c) states that “[t]he court, at the time of sentencing, shall

state in open court the reasons for its imposition of the particular sentence.” Section

3553(c) “requires no specific formulas or incantations; rather, the length and detail

required of a district court’s explanation varies according to the circumstances.” United

States v. Cassesse, 685 F.3d 186, 192 (2d Cir. 2012); see also Rita v. United States, 551

U.S. 338, 356 (2007). Here, the district court stated that it was imposing a consecutive

24-month sentence, the maximum term provided by law and the exact sentence

recommended by the applicable Guidelines policy statement, see 18 U.S.C. § 3583(e)(3);

U.S.S.G. § 7B1.4(a)−(b), because Ivory’s conduct—selling crack cocaine—violated

federal as well as state law. The brief explanation was sufficient to explain the sentence

in light of the circumstances.

       First, Ivory had been sentenced to a below-Guidelines sentence for the crime for

which he was on supervision based, in part, on a favorable government memorandum

(not before this court) and Ivory’s own urging that the court believe in him and in his

ability to stay out of trouble. Ivory’s betrayal of the court’s trust, by conduct that

constituted not only a violation of supervision but a crime, fully warranted the challenged

sentence. See U.S.S.G. § 7B1.4(a), (b)(1); cf. id. cmt. n.4; United States v. Fleming, 397

F.3d 95, 100−01 (2d Cir. 2005) (recognizing that when defendant receives downward

departure at sentencing and then repeatedly violates supervision, it is not unreasonable

for district court to impose prison sentence greater than that recommended by applicable

policy statement); United States v. Pelensky, 129 F.3d 63, 69−70 (2d Cir. 1997) (same).



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       Second, Ivory’s adjustment to supervision had been fraught with problems. In

March 2013, he admitted violating supervision by, among other things, testing positive

for marijuana use, failing to appear for scheduled drug screens, failing to attend

substance-abuse treatment, and failing timely to notify his probation officer of two

arrests. Nonetheless, for those infractions the district court modified Ivory’s supervision

only to add conditions of electronic monitoring and home confinement.

       Thereafter, Ivory violated the home-confinement order on 38 occasions.

Furthermore, in June 2013, he failed to appear in state court in connection with his 2012

arrest for operating a motor vehicle with a suspended license. Once again, the district

court showed Ivory considerable leniency by continuing Ivory on supervision, but

warning that, upon any further violations, he would “go to prison.” G.A. 49−52. Two

months later, on September 6, 2013, Ivory sold crack cocaine, resulting in his arrest and

eventual guilty plea in state court to the sale of narcotics, for which he was sentenced to

five years’ imprisonment.

       In imposing the 24-month sentence here at issue, the district court expressed its

disappointment that Ivory had again violated his supervision, noted his state sentence,

and explained that it was imposing a consecutive 24-month sentence because his actions

“violated federal law as well as state law.” G.A. 66. The district court also explicitly

rejected Ivory’s self-serving attempt to excuse his conduct as financially motivated and

further explained that it was imposing a 24-month sentence because it “had hoped that

[Ivory] would have learned [the consequences of violating the law] by now, but [he]

didn’t.” Id.

                                            4
       Given all parties’ familiarity with Ivory’s original federal crime of conviction, his

repeated violations of supervision, the district court’s express warning that any future

violation would result in a prison term, and his further violation by drug trafficking

amounting to a felony crime under both federal and state law, the district court’s

September 24, 2014 statements were sufficient to inform the defendant of the reasons for

his sentence and “to satisfy [us] that [the district court] . . . ha[d] a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. at

356; see also United States v. Cassesse, 685 F.3d at 192−93 (explaining that where

sentence imposed upon revocation of supervision “is within the recommended range,

compliance with the statutory requirements can be minimal” and that section 3553(c) is

satisfied if district court’s statements (1) adequately inform defendant of reasons for his

sentence, (2) permit meaningful appellate review, (3) enable public to learn why

defendant received a particular sentence, and (4) guide probation and prison officials in

developing programs to address defendant’s needs).

       The district court’s statements were also sufficient to explain its decision to

impose a consecutive sentence, which was recommended by U.S.S.G. § 7B1.3(f). Thus,

we identify no error—much less plain error—in the district court’s explanation of reasons

for the imposed sentence.

       We have considered Ivory’s remaining arguments, and we conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court


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