08-6292-cr
United States v. Most
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY O RDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 8 th day of June, two thousand ten.

PRESENT:         JOSE A. CABRANES,
                 BARRINGTON D. PARKER,
                 REENA RAGGI,
                                          Circuit Judges.
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UNITED STATES OF AMERICA,
                                          Appellee,

                         v.                                               No. 08-6292-cr

KARL A. MOST,
                                          Defendant-Appellant.
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FOR APPELLANT:                                    Stuart J. Grossman, Grossman & Rinaldo, Forest
                                                  Hills, New York.

FOR APPELLEE:                                     Benton J. Campbell, United States Attorney for
                                                  the Eastern District of New York (Elizabeth J.
                                                  Kramer, Jack Dennehy, Assistant United States
                                                  Attorneys, of counsel), Brooklyn, New York.

          Appeal from the United States District Court for the Eastern District of New York

(Sandra L. Townes, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on December 23, 2008, is

AFFIRMED.

       Karl Most challenges the reasonableness of a 60-month term of incarceration imposed

for violation of the supervised release component of his Southern District of California

sentence for possession of methamphetamine with intent to distribute. Specifically, Most

contends that 60 months’ incarceration is unreasonable in light of the violation to which he

pleaded guilty: traveling to New York without permission. In assessing a reasonableness

challenge, we do not “substitut[e] . . . our judgment for that of the sentencing judge. Rather,

the standard is akin to review for abuse of discretion.” United States v. Fernandez, 443 F.3d

19, 27 (2d Cir. 2006); see Gall v. United States, 552 U.S. 38, 51 (2007). In applying these

principles to this appeal, we assume the parties’ familiarity with the facts and the record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.

       1.     Reasonableness

              a.     Procedural Reasonableness

       The record demonstrates that prior to imposing the challenged sentence, the district

court afforded counsel and defendant an opportunity to be heard. Thus, any claim that the

court precluded defendant from speaking on the record in violation of Fed. R. Crim. P. 32

lacks support. The court also properly identified the applicable Guidelines range as seven

to thirteen months’ imprisonment. In determining that sixty months’ imprisonment – the



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statutory maximum – was the proper sentence, the court noted Most’s long history of

supervised release violations, his criminal history category of V, and the significant

downward departure he received in the underlying criminal case. These factors adequately

explain the court’s conclusion that Most had “shown, once again, . . . that [he would] not

obey the conditions of supervised release,” and that he therefore “must be incapacitated for

as long as possible.” Sent’g Tr. at 26; see Gall v. United States, 552 U.S. at 50 (noting that

“a major departure [from the recommended Guidelines sentence] should be supported by a

more significant justification than a minor one”).

       As we have observed on numerous occasions, no “specific verbal formulations,”

United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005), or “robotic incantations,” United

States v. Fernandez, 443 F.3d at 30 (internal quotation marks omitted), are required to

demonstrate a district court’s adequate consideration of the statutory factors relevant to

sentencing. Here, the able and experienced district judge discussed not only the nature of

Most’s violation – which involved the commission of another drug crime on his trip to New

York – and his personal characteristics and history, but also the need to deter and protect the

public from repeated supervised release violations that involved criminal activity. On this

record, we easily conclude that the judge adequately considered the § 3553(a) factors. See

United States v. Verkhoglyad, 516 F.3d 122, 132-34 (2d Cir. 2008) (citing defendant’s

repeated violations of law after receipt of lenient sentences in explaining decision to impose

57-month sentence for violation of probation).



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       We therefore reject Most’s claim of procedural unreasonableness as without merit.

              b.     Substantive Reasonableness

       We similarly reject Most’s claim of substantive unreasonableness. In light of Most’s

extensive criminal history, repeated violations of supervised release, intent to lie to his

probation officer to procure permission to travel, and receipt of a significant downward

departure in his underlying criminal case, we conclude that a 60-month sentence fell within

the broad discretion of the district court. See United States v. Cavera, 550 F.3d 180, 189 (2d

Cir. 2008) (noting that sentence is substantively unreasonable only where it “cannot be

located within the range of permissible decisions” (internal quotation marks omitted)); accord

United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).

       2.     Conclusion

       We have considered Most’s remaining arguments, including those submitted in his

pro se supplemental briefs, and conclude that they lack merit. Accordingly, the December

23, 2008 judgment of the district court is AFFIRMED.

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




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