     09-0122-cr
     United States v. Session

                          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 26 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROGER J. MINER,
 9                RICHARD C. WESLEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               09-0122-cr
17
18       DARYL SESSION, aka DAZZY,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                         Matthew M. Robinson, Robinson &
23                                              Brandt, PSC., Covington,
24                                              Kentucky.
25
26       FOR APPELLEES:                         Monica J. Richards, for Kathleen
27                                              M. Mehltretter, United States
28                                              Attorney’s Office for the


                                                  1
 1                              Western District of New York,
 2                              Buffalo, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Western District of New York (Larimer, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Daryl Session was convicted on two counts of possession
12   with intent to distribute cocaine and cocaine base, and one
13   count of possessing a firearm in furtherance of a drug
14   trafficking felony. He was sentenced principally to three
15   concurrent terms of 396 months’ imprisonment. On appeal,
16   Session argues that the district court committed various
17   procedural errors at sentencing. We assume the parties’
18   familiarity with the underlying facts, the procedural
19   history, and the issues presented for review.
20
21   [1] Session argues that the district court departed upward
22   without providing the notice contemplated in Federal Rule of
23   Criminal Procedure 32(h). There is some question as to
24   whether such notice was required in this case in light of
25   the Supreme Court’s decision in Irizarry v. United States,
26   553 U.S. 708 (2008), but we need not resolve that issue.
27   Instead, we conclude that, even if notice was required,
28   notice was given when the district court indicated at a pre-
29   sentencing hearing that it was “thinking of matters that
30   might lead the Court to impose a sentence outside the
31   guidelines.” It then went on to delineate explicitly the
32   very considerations of which Session now contends he was
33   never made aware.
34
35   [2] Session argues that the district court contravened 18
36   U.S.C. § 3553(c)(2) by failing to explain in the written
37   judgment the rationale for a non-Guidelines sentence.
38   Session misreads the record. The district court did, in
39   fact, explain its reasons for the sentence in its written
40   judgment, and it did so in detail more than sufficient to
41   satisfy the statute.
42
43   [3] Session argues that the district court erred in relying
44   on U.S.S.G. § 4A1.3(a)(1) to depart upward for Session’s
45   involvement in the murder-for-hire scheme. But the district
46   court did not rely on § 4A1.3(a)(1) for this purpose.


                                  2
 1   Session’s involvement in the murder-for-hire plot was
 2   considered as part of the analysis of the 18 U.S.C.
 3   § 3553(a) factors. As the district court observed, such
 4   conduct bears on the history and characteristics of the
 5   defendant, the need to deter, and the need to protect the
 6   public from future crimes.
 7
 8   [4] Session asserts that the sentence violates this Court’s
 9   decisions in United States v. Whitley, 529 F.3d 150 (2d Cir.
10   2008), and United States v. Williams, 558 F.3d 166 (2d Cir.
11   2009). We disagree. When Whitley applies, it operates to
12   make non-mandatory the otherwise required consecutive
13   sentence provided for in 18 U.S.C. § 924(c). United States
14   v. Whitley, 540 F.3d 87, 89 (2d Cir. 2008) (denial of
15   petition for rehearing). By the same token, Whitley “leaves
16   sentencing judges free to impose precisely the same number
17   of years” that would result from a mandatory application of
18   the § 924(c) consecutive sentence, “but authorizes them to
19   do so as a matter of discretion, not as a requirement.” Id.
20   Here, the record is clear that the 60-month increment to the
21   applicable guideline range was in the exercise of
22   discretion. The court explicitly noted that it was not
23   required to do so.
24
25        Finding no merit in Session’s remaining arguments, we
26   hereby AFFIRM the judgment of the district court.
27
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31




                                  3
