         10-4963-cr
         United States v. Howard

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                         Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      v.                                              10-4963-cr
19
20       TYRONE HOWARD,
21
22                                     Defendant-Appellant.
23
24
25       FOR APPELLANT:                MOLLY K. CORBETT, Research and Writing
26                                     Specialist, for Lisa Peebles, Acting
27                                     Federal Defender, Federal Public Defender
28                                     Office, Albany, N.Y.
29
30       FOR APPELLEE:                 BRENDA K. SANNES, Assistant United States
31                                     Attorney (Daniel Hanlon, Assistant United
32                                     States Attorney, on the brief), for
33                                     Richard S. Hartunian, United States
34                                     Attorney for the Northern District of New
35                                     York, Syracuse, N.Y.
1
2         Appeal from the United States District Court for the
3    Northern District of New York (Scullin, J.).
4
5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

6    AND DECREED that the judgment of the United States District

7    Court for the Northern District of New York be AFFIRMED.

8        Appellant appeals from a judgment of the United States

9    District Court for the Northern District of New York

10   (Scullin, J.), which imposed an incarceratory sentence of 90

11   months and a condition of supervised release that Appellant

12   not associate with members of the Bloods Criminal Street

13   Gang (“Bloods”).   We assume the parties’ familiarity with

14   the underlying facts, the procedural history, and the issues

15   presented for review.

16                             BACKGROUND

17       Defendant-Appellant Tyrone Howard pleaded guilty to a

18   one-count indictment charging him with violating 18 U.S.C. §

19   922(g)(1), which prohibits felons from possessing firearms.

20   Because Howard possessed a semi-automatic firearm and had

21   two prior qualifying offenses, Howard’s base offense level

22   under the United States Sentencing Guidelines (“Guidelines”)

23   was 26.   U.S.S.G. § 2K2.1(a)(1).   Howard also had a

24   significant criminal history, which placed him in criminal


                                   2
1    history category V.     The district court gave Howard a three-

2    level reduction for his acceptance of responsibility,

3    bringing his offense level to 23.

4        The Guidelines called for 84 to 105 months of

5    imprisonment.   The district court sentenced Howard to 90

6    months’ incarceration.     It also imposed a supervised release

7    condition prohibiting Howard from associating with any

8    member of the Bloods.     Howard now appeals from the district

9    court’s imposition of the sentence and condition of

10   supervised release.

11                               DISCUSSION

12       We review the sentence imposed by the district court to

13   determine whether it is reasonable.      Gall v. United States,

14   552 U.S. 38, 46 (2007); United States v. Cavera, 550 F.3d

15   180, 187-88 (2d Cir. 2008) (en banc).      Reasonableness

16   review, which has both procedural and substantive

17   components, is “akin to review for abuse of discretion.”

18   United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).

19       Howard contends that this Court should vacate his

20   sentence for three reasons: (1) the district court committed

21   procedural error by (a) failing to adequately explain its

22   sentence, and by (b) failing to explicitly address Howard’s


                                     3
1    argument that the enhancement for possession of a semi-

2    automatic firearm in U.S.S.G. § 2K2.1(a)(1) lacked an

3    empirical basis; (2) an incarceratory sentence of 90 months’

4    imprisonment is substantively unreasonable, primarily

5    because U.S.S.G. § 2K2.1(a)(1) lacks an empirical basis; and

6    (3) the district court committed procedural error by failing

7    to comply with Federal Rule of Criminal Procedure

8    32(i)(3)(B)’s requirement that the district court either

9    rule on Howard’s dispute with the pre-sentence report’s

10   references to his membership in the Bloods or,

11   alternatively, explicitly state that the matter would not

12   affect sentencing; he further argues that the condition of

13   supervised release prohibiting him from associating with

14   members of the Bloods must be stricken.   Each of these

15   arguments is taken in turn.
16
17       First, we reject Howard’s claim that the district court

18   committed procedural error by failing to adequately explain

19   its sentence and by failing to explicitly address his

20   argument that the applicable Guideline lacked an empirical

21   basis.   A district court commits procedural error when it

22   fails to adequately explain its sentence, as 18 U.S.C.

23   3553(c) requires.   Cavera, 550 F.3d 180, 192-93 (2d Cir.



                                   4
1    2008).   Although “[s]tating no reasons at all plainly falls

2    short” of satisfying § 3553(c), see United States v. Lewis,

3    424 F.3d 239, 245 (2d Cir. 2005) (internal quotation marks

4    omitted), the district court’s explanation of its sentence

5    need not be extensive, especially where a Guidelines

6    sentence is imposed, see Rita v. United States, 551 U.S.

7    338, 356-59 (2007). “[A]dopting the findings of the PSR is

8    ordinarily sufficient to satisfy § 3553(c).”   United States

9    v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011).   If the

10   defendant fails to object to the limited nature of the

11   district court’s explanation, plain error review applies.

12   United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir.

13   2007).

14       Here, the district court adopted the findings of the

15   pre-sentence report in open court, and it imposed a

16   Guidelines sentence, which does not require lengthy

17   explanation.   As such, Howard, who did not object below to

18   what he now perceives as the district court’s lack of an

19   adequate explanation of its sentence, has failed to

20   demonstrate plain error.   Similarly, we reject Howard’s

21   claim that the district court erred by failing to explicitly

22   address his argument that the applicable Guideline lacked an


                                   5
1    empirical foundation.    This Court has never required that

2    the district court address every argument, frivolous or not,

3    made by the defendant.    See United States v. Bonilla, 618

4    F.3d 102, 111 (2d Cir. 2010).

5        We turn next to Howard’s claim that his sentence was

6    substantively unreasonable because the Guideline applicable

7    to felons possessing semi-automatic weapons, U.S.S.G. §

8    2K2.1, lacks an empirical basis and thus is of “questionable

9    integrity.”   Howard Br. 22.    In support of this contention,

10   Howard cites the Supreme Court’s decision in Kimbrough v.

11   United States, 552 U.S. 85 (2007), and this Court’s decision

12   in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010).

13   This argument is without merit.     That the Sentencing

14   Commission did not cite empirical data in support of its

15   amendment to the Guideline does not render the Guideline

16   flawed.   See United States v. Perez-Frias, 636 F.3d 39, 43

17   (2d Cir. 2011).

18       Finally, we turn to Howard’s argument that the district

19   court erred because it failed to resolve his dispute with

20   the pre-sentence report’s references to his purported

21   membership in the Bloods and then based a supervised release

22   condition on that disputed membership.     Federal Rule of


                                     6
1    Criminal Procedure 32(i)(3)(B) requires that for any

2    disputed portion of the pre-sentence report, the district

3    court either “rule on the dispute or determine that a ruling

4    is unnecessary . . . because the matter will not affect

5    sentencing.”   Fed. R. Crim. P. 32(i)(3)(B).     Here, although

6    the district court did not rule on whether Howard was a

7    member of the Bloods or explicitly state that it would not

8    consider the matter in sentencing Howard, the district

9    court’s remarks at Howard’s sentencing hearing, when read in

10   context, made clear that it would not consider Howard’s

11   purported membership in the Bloods when crafting its

12   sentence.   Any technical failure on the part of the district

13   court to explicitly state as much is harmless.      Cf. United

14   States v. Gilmore, 599 F.3d 160, 168 (2d Cir. 2010).

15       That the district court imposed a supervised release

16   condition prohibiting Howard from associating with members

17   of the Bloods does not suggest otherwise.      Howard, through

18   counsel, admitted that he associated with members of the

19   Bloods in the past.   The imposition of the condition, which

20   prevents Howard from associating with members of a violent

21   criminal enterprise during the period of his supervised

22   release, does not constitute plain error.      See U.S.S.G. §


                                   7
1    5D1.3(c)(9); United States v. Albanese, 554 F.2d 543, 546

2    (2d Cir. 1977).

3        We have considered Howard’s remaining arguments and,

4    after a thorough review of the record, find them to be

5    without merit.

6        For the foregoing reasons, the judgment of the district

7    court is hereby AFFIRMED.

 8
 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




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