18-1484-cr
United States v. Sykes

                                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 28th day of May, two thousand nineteen.

PRESENT:            JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                    PETER W. HALL,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                           Appellee,                      18-1484-cr

                           v.

TYLER SYKES,

                           Defendant-Appellant.


FOR APPELLEE:                                          Cecilia E. Vogel, Sagar Ravi, and Anna M.
                                                       Skotko, Assistant United States Attorneys,
                                                       for Geoffrey S. Berman, United States
                                                       Attorney, Southern District of New York,
                                                       New York, NY.

FOR DEFENDANT-APPELLANT:                               Edward S. Zas, Appeals Bureau, Federal
                                                       Defenders of New York, Inc., New York,
                                                       NY.




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     Appeal from a judgment of the United States District Court for the Southern District of
New York (Lorna G. Schofield, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Defendant-Appellant Tyler Sykes (“Sykes”) appeals from a May 8, 2018 judgment revoking
his term of supervised release and imposing a term of imprisonment of one year and one day, to be
followed by a new term of supervised release of two years minus one day. On appeal, Sykes argues
that the District Court procedurally erred by relying on retributive factors when imposing his new
term of supervised release. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issue on appeal.

        “Sentences for violations of supervised release are reviewed under the same standard as for
sentencing generally: whether the sentence imposed is reasonable.” United States v. Brooks, 889 F.3d
95, 100 (2d Cir. 2018) (internal quotation marks omitted). Our review for reasonableness is akin to a
“deferential abuse-of-discretion standard.” Id. (internal quotation marks omitted). Where, as here, a
defendant fails to object to an alleged procedural error at the time of sentencing, we review for plain
error. See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). “Plain error review requires a
defendant to demonstrate that (1) there was error, (2) the error was plain, (3) the error prejudicially
affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public
reputation of judicial proceedings.” United States v. Pattee, 820 F.3d 496, 505 (2d Cir. 2016) (internal
quotation marks omitted).

       Sykes’s challenge arises from the fact that the District Court did not separately address its
reasons for revoking supervised release and imposing sentence under 18 U.S.C. § 3583(e),1 and its


    1
      Section 3583(e) states that a district court “may, after considering the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . revoke a term of
supervised release, and require the defendant to serve in prison all or part of the term of supervised
release . . . .” 18 U.S.C. § 3583(e)(3). Notably, this list of enumerated factors omits § 3553(a)(2)(A),
which includes “retributive” factors such as “the need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense.” 18 U.S.C. § 3553(a)(2)(A). Because § 3583(e) “does not state that any particular factor
cannot be considered,” we have interpreted it as “simply . . . requiring consideration of the
enumerated subsections of § 3553(a), without forbidding consideration of other pertinent factors.”
United States v. Williams, 443 F.3d 35, 47 (2d Cir. 2006). Indeed, we have explained that § 3583(e)
“cannot reasonably be interpreted to exclude consideration of the seriousness of the releasee’s
violation” in light of the other factors a district court must consider under § 3583(e), including the

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reasons for imposing a renewed term of supervised release under § 3583(h).2 We have previously
recognized that “district courts, understandably, often provide only one explanation for the entirety
of a sentence,” which might “inadvertently” lead to procedural error because “the need for
retribution is properly considered in imposing a term of incarceration but not a term of supervised
release.” United States v. Burden, 860 F.3d 45, 57 (2d Cir. 2017) (emphasis omitted). We have therefore
advised district courts to “separately state [their] reasons” for imposing a term of supervised release.
Id.

          Assuming arguendo that the District Court plainly erred by failing to separately state its
reasons for imposing a sentence under § 3583(e) and for imposing a new term of supervised release
under § 3583(h), such error did not prejudicially affect Sykes’s substantial rights or seriously
undermine the fairness, integrity, and public reputation of the sentencing proceedings. To the extent
the District Court commented on the seriousness of Sykes’s offense, it was to acknowledge that the
offense was “not the most serious offense.” App. 180. And when the District Court discussed the
need to promote respect for the law and provide just punishment for Sykes’s breach of the court’s
trust, it was in the context of explaining its reasons for revoking supervised release and imposing a
term of incarceration, which § 3583(e) permits. See id. at 182 (“I said when I originally sentenced you
that I was giving you a break[,] which I did. I sentenced you to 19 months. The guidelines
recommendation at the bottom end was 37 months. It was, in my view, extremely lenient . . . . But
my policy is I give a break once, but that kind of extreme leniency I won’t do again if you don’t take
advantage of the break that you’re given.”). In sum, these comments—understood in context—do




nature and circumstances of the offense and the need for the sentence imposed to afford adequate
deterrence to criminal conduct and protect the public from further crimes. Id. at 48.
    2
     Section 3583(h) provides that “[w]hen a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment, the court may include a requirement that the
defendant be placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(h). In
imposing a renewed term of supervised release pursuant to § 3583(h), a district court “is required to
consider the same set of factors as those it must consider when imposing supervised release for the
underlying offense.” Brooks, 889 F.3d at 100; see also § 3583(c) (listing the identical factors to those
contained in § 3583(e)). Unlike § 3583(e), however, we have interpreted § 3583(h) to forbid district
courts from taking into account retribution when imposing a term of supervised release upon
revocation. Brooks, 889 F.3d at 102. This is because “supervised release is not, fundamentally, part of
the punishment,” and its purpose is to “fulfill rehabilitative ends, distinct from those served by
incarceration.” Id. at 99 (internal quotation marks and brackets omitted). Thus, a district court may
not consider retributive factors in imposing a renewed term of supervised release under § 3583(h).


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not demonstrate that Sykes’s supervised release term was “driven largely” by or “inflected” with
retributive factors. See Brooks, 889 F.3d at 102; Burden, 860 F.3d at 56–57.

        Finally, there is no reasonable probability that, but for this asserted error, the imposed term
of supervised release would have been any different. The District Court originally imposed a three-
year term of supervised release—the maximum term authorized for the underlying offense of
conviction. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3), and 3583(b)(2). At the time of Sykes’s arrest for
the violation, he had over two years remaining on his original term of supervised release. There is no
reason to believe that the District Court, after considering a number of permissible factors, would
have imposed a shorter term of supervised release than that remaining before Sykes was arrested.

                                          CONCLUSION

       We have reviewed all of the arguments raised by Sykes on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the May 8, 2018 judgment of the District
Court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk of Court




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