10-1662-cr
United States v. LaTray

                   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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 25th day of April, two thousand eleven.

PRESENT:    AMALYA L. KEARSE,
            ROGER J. MINER,
            DENNY CHIN,
                            Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

            -v.-                                      10-1662-cr

GARY LATRAY,
          Defendant-Appellant,

TIMOTHY DEMARC,
          Defendant.
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FOR DEFENDANT-APPELLANT:            MARJORIE M. SMITH, Piermont, New
                                    York.
FOR APPELLEE:                PAULA RYAN CONAN, Assistant United
                             States Attorney (John G. Duncan,
                             Assistant United States Attorney,
                             on the brief), for Richard S.
                             Hartunian, United States Attorney
                             for the Northern District of New
                             York, Syracuse, New York.

          Appeal from a judgment of the United States District

Court for the United States District Court for the Northern

District of New York (McCurn, J.) entered April 26, 2010,

convicting defendant-appellant Gary LaTray of violating the terms

of his supervised release and sentencing him principally to 36

months' imprisonment.
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the sentence of the district court is AFFIRMED,

and the case is REMANDED for the district court to amend the

written judgment to append a detailed written statement of the

reasons for the sentence in compliance with 18 U.S.C.

§ 3553(c)(2) (2006).1
          We assume the parties' familiarity with the facts and

procedural history of the case, which we summarize as follows:




     1
          Effective May 27, 2010, 18 U.S.C. § 3553(c)(2) was
amended in technical respects. We apply the statute that was in
effect at the time of his sentencing.
                               -2-
             In 1990, following a jury trial, Gary LaTray was

convicted in the Northern District of New York of armed robbery

of bank funds and associated crimes.     He was sentenced

principally to 248 months' imprisonment and three years'

supervised release.    He completed his term of imprisonment and

commenced his term of supervised release in June 2007.
          On May 27, 2009, the Probation Department filed a

petition for revocation of LaTray's supervised release, based on

three specifications:    failure to report as directed by the

Probation Department; use of marijuana and/or cocaine on three

occasions; and failure to comply with the requirements of a drug

testing program.    The district court issued a warrant for

LaTray's arrest.

          LaTray was arrested in West Virginia on February 24,

2010, and was returned to the Northern District of New York.     He

pled guilty to the three violations of supervised release on

April 20, 2010.    The district court proceeded immediately to

sentencing.    Although the violations carried a range of 8 to 14

months under the United States Sentencing Guidelines (the

"Guidelines"), see U.S.S.G. § 7B1.4(a) (2010), the district court
sentenced LaTray to the maximum possible term of imprisonment --

36 months.    LaTray filed a timely notice of appeal.

             On appeal, LaTray argues principally that the district

court committed reversible error by:     (1) sentencing him without

a new presentence report; (2) sentencing him to an above-

Guidelines sentence without first giving notice that it was

                                  -3-
contemplating doing so; and (3) failing to properly explain its

sentence in open court and in the written judgment of conviction.

We address each argument in turn.      We note that LaTray raises

these arguments for the first time on appeal, and thus our review

of his claims is for plain error.     United States v. Deandrade,

600 F.3d 115, 119 (2d Cir.), cert. denied, 130 S. Ct. 2394

(2010).
     1.   The Absence of a Presentence Report

          LaTray's first argument fails because a presentence

report is not required where a defendant is sentenced for a

violation of supervised release.      The provisions applicable to

revocation proceedings -- Chapter 7 of the Guidelines and Federal

Rule of Criminal Procedure 32.1 -- do not impose such a

requirement.   Indeed, the practice in the district courts in this

Circuit is to sentence for violations of supervised release

without a new presentence report.

          LaTray relies on Chapter 6 of the Guidelines and

Federal Rule of Criminal Procedure 32, which do require, as a

general rule, a presentence report.      Chapter 6 and Rule 32 apply

generally to criminal proceedings, however, and not specifically

to revocation proceedings.   They are entitled, respectively,

"Sentencing Procedures, Plea Agreements, and Crime Victims'

Rights" and "Sentencing and Judgment."      In contrast, Chapter 7

and Rule 32.1 apply specifically to, respectively, "Violations of

Probation and Supervised Release" and "Revoking or Modifying

Probation or Supervised Release."      As they do not require a

presentence report, there was no plain error here.

                                -4-
     2.   The Absence of Notice

          Likewise, there was no error, much less plain error, in

the district court's failure to give advance notice of its

intention to impose an above-Guidelines sentence.     Again, LaTray

relies on a rule, Federal Rule of Criminal Procedure 32(h), that

does not apply to revocation proceedings.    Moreover, even in the

general sentencing context, the Supreme Court has held that the

"notice" requirement in Rule 32(h) is not applicable to the

imposition of a "variance" from the Guidelines range under the

post-Booker advisory Guidelines regime.    Irizarry v. United

States, 553 U.S. 708, 713-14 (2008).    In fact, the Guidelines

ranges applicable to revocation sentencings were always "only

advisory," as they were originally promulgated as "policy

statements only."    See U.S.S.G. § 7A cmt. 1 (2010); United States

v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008).
     3.   Reasonableness of the Sentence

          As in the sentencing context generally, a sentence in

the revocation context must be reasonable, both substantively and

procedurally.   See Verkhoglyad, 516 F.3d at 127.    On appeal, we

review such challenges for abuse of discretion.     United States v.

Hasan, 586 F.3d 161, 167-68 (2d Cir. 2009), cert. denied, 131 S.

Ct. 317 (2010).

          LaTray does not challenge the substantive

reasonableness of his sentence, nor could he.     The district court

did not abuse its discretion in sentencing LaTray to the maximum

term of 36 months.    Judge McCurn had sentenced LaTray on the

underlying offenses back in 1990, and he was fully aware of the

                                  -5-
violent nature of LaTray's original crimes and his criminal

record, which the district court had then described as

"horrendous."   LaTray admitted his guilt with respect to the

three specifications in question, which charged multiple

violations.   He was in Criminal History Category VI.   And he had

been arrested out-of-state on unrelated charges, clearly having
absconded from supervised release.    Under these circumstances,

the district court's imposition of a 36-month sentence fell

"within the range of permissible decisions."   United States v.

Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal

quotation marks omitted).

           Procedurally, LaTray argues, the district court failed

in two respects.   First, he contends that the district court

failed to state its reasons in open court for imposing a sentence

outside of the Guidelines range.   See 18 U.S.C. § 3553(c) (2006).

Second, he notes that the written judgment contained no statement

of reasons for the imposition of a non-Guidelines sentence.     See

18 U.S.C. § 3553(c)(2).   The government concedes that the
district court's failure to memorialize its reasons in writing

constituted error but argues that the court's oral statements

provided a sufficient explanation for the sentence imposed.

           At the hearing, the district court addressed LaTray and

stated:   "The court imposes this sentence . . . above the

[G]uideline range after considering the breach of trust that

occurred while you were under the supervision of this court."

The court also noted:   "With all factors considered, the court

finds this to be an appropriate sentence."

                                -6-
           The district court's oral explanation for its sentence

was insufficient.     The stated reasoning rested solely upon breach

of trust, a fact inherent in every violation of supervised

release.   See U.S.S.G. § 7A.3(b) (2010) (providing that during

revocation, court should "sanction primarily the defendant's

breach of trust").    "'When a factor is already included in the

calculation of the [G]uidelines sentencing range, a judge who

wishes to rely on that same factor to impose a sentence above or

below the range must articulate specifically the reasons that

this particular defendant's situation is different from the

ordinary situation covered by the [G]uidelines calculation.'"

United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007) (quoting
United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006)).

Likewise, the district court's statement that the maximum

sentence was appropriate "[w]ith all factors considered" was

insufficient under 18 U.S.C. § 3553(c).    While we have not

required an "extensive or detailed" explanation, Verkhoglyad, 516

F.3d at 136, a fuller explanation of the court's reasoning was in

order in this case.

           Nonetheless, we do not reverse on this basis.   First,

there was no objection or request for a fuller explanation.

Second, under the circumstances here, even a bit of further

elaboration would have been sufficient, and given the present

record, we can easily discern what the district court meant by

"breach of trust."    Because it is clear that LaTray's conduct

constituted several breaches, and that he cannot show that his

sentence was substantively unreasonable or an abuse of

                                  -7-
discretion, we are of the view that the district court's failure

to provide a fuller oral statement of reasons did not deprive

LaTray of substantial rights or reflect negatively on the

judicial process.   Accordingly, it did not constitute plain

error.   Cf. United States v. Lewis, 424 F.3d 239, 245-46, 249 (2d

Cir. 2005) (finding plain error in failure to verbally state "any

reason," vacating sentence, and remanding for oral and written

statement of reasons).

           The district court clearly failed to state an adequate

reason for imposing a non-Guidelines sentence in the written

judgment of conviction.   See 18 U.S.C. § 3553(c)(2) (court must
state in writing "the specific reason" for sentence imposed

outside the range).   But where a sentencing court has provided an

oral statement of reasons sufficient in light of the record to

provide a basis for this Court's review for reasonableness,

remand only for a written statement of reasons without vacatur of

the sentence is appropriate.   See United States v. Jones, 460

F.3d 191, 196-97 (2d Cir. 2006) (finding oral statement

explaining non-Guidelines sentence permitted review for

reasonableness and remanding only for compliance with

§ 3553(c)(2)).   Where, as here, the district court's oral

explanation was insufficient, but the plain-error standard is

applicable and the record leads to the conclusion that there was

no plain error, we likewise conclude that vacatur of the judgment

is not required and that it is appropriate simply to remand for

the district court to provide a more detailed articulation of the

reasons for the sentence in a written statement to accompany the

judgment as contemplated by 18 U.S.C. § 3553(c)(2).

                                -8-
                              CONCLUSION

          We have considered all of LaTray's other contentions on

appeal and have found them to be without merit.   For the reasons

stated above, the sentence of the district court is AFFIRMED, and

the case is REMANDED with instructions to amend the written

judgment to append a detailed written statement of the reasons

for the sentence in compliance with 18 U.S.C. § 3553(c)(2)

(2006).



                              FOR THE COURT:
                              CATHERINE O’HAGAN WOLFE, CLERK




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