16-4209-cr
United States v. Bailey

                                 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 9th day of November, two thousand seventeen.

PRESENT:             AMALYA L. KEARSE,
                     JOSÉ A. CABRANES,
                     RICHARD C. WESLEY,
                                  Circuit Judges.


UNITED STATES OF AMERICA,

                            Appellee,                      16-4209-cr

                            v.

LOUIS BAILEY, AKA LEWIS BAILEY, AKA POLO
BROWN, AKA WILLIAM BAILEY, AKA FOLIO
BAILEY,

                            Defendant-Appellant.


FOR APPELLEE:                                           Susan Corkery and Moira Kim Penza,
                                                        Assistant United States Attorneys, for
                                                        Bridget M. Rohde, Acting United States
                                                        Attorney, Eastern District of New York,
                                                        Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                                Darrell Fields, 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 Eastern District of New
York (Edward R. Korman, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 12, 2016 judgment of the District Court be
and hereby is AFFIRMED.

         Defendant-Appellant Louis Bailey (“Bailey”) appeals from a December 12, 2016 judgment
following his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g). The District Court sentenced him to 84 months’ imprisonment, three years’ supervised
release, and a $100 special assessment. On appeal, Bailey argues that the sentence of 84 months’
imprisonment was both procedurally and substantively unreasonable. We conclude it was neither
and affirm.

                                          BACKGROUND1

         Bailey’s appeal stems from the District Court’s significant upward departure from the
Guidelines’ recommended range. In their plea agreement, the parties calculated an adjusted offense
level of 19 and a Criminal History Category of III, resulting in a recommended range of
imprisonment of 37 to 46 months under the Guidelines. At the plea hearing, Bailey stated that he
understood the Court had “the authority to impose a sentence that is more severe . . . than the
sentence called for by the [G]uidelines.” Ultimately, that is what the District Court did. While the
Court adopted the same Guidelines range, it imposed a non-Guidelines sentence of 84 months—
almost twice the maximum advised. In so doing, the Court cited Bailey’s long history of violence and
the dangerous nature of the instant offense.

         The District Court particularly focused on Bailey’s violent record while incarcerated. It noted
that “while in custody, the defendant was re-arrested and convicted of assault. Specifically, records
revealed that, while in custody, the defendant was involved in a physical assault as part of a gang ‘hit’
on another inmate.” The District Court thus found that the Guidelines’ recommended range
significantly under-represented the seriousness of Bailey’s criminal history, and so departed upward
in the sentence.

                                            DISCUSSION

       We review a sentence for procedural and substantive reasonableness under a “deferential
abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)


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     We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal. We refer to the background of the case only as necessary to explain our
decision to affirm.

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(internal quotation marks omitted). “The procedural inquiry focuses primarily on the sentencing
court’s compliance with its statutory obligation to consider the factors detailed in 18 U.S.C.
§ 3553(a), while the substantive inquiry assesses the length of the sentence imposed in light of the
§ 3553(a) factors.” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (internal alterations,
citations, and quotation marks omitted). Where the purported procedural error involves a finding of
fact, we will only reverse if the finding was “clearly erroneous.” Cavera, 550 F.3d at 190.

        Because sentencing is not a “precise science,” we have observed that “in the great majority
of cases, a range of sentences—frequently extending well beyond the narrow ranges prescribed by
the Guidelines—must be considered reasonable.” United States v. Jones, 531 F.3d 163, 174 (2d Cir.
2008).

                                                    I.

         Bailey’s arguments that this case is exceptional are without merit. First, Bailey argues that the
District Court “mistakenly concluded that Bailey was ‘convicted’” of participating in the gang-related
incident and “used this purported ‘conviction’ . . . as one of the bases for the upward departure.”
Appellant Br. at 22. Not so. Read literally, the Statement of Reasons made two factual findings about
Bailey’s behavior while in custody: (1) that he “was re-arrested and convicted of assault”; and (2) that
he “was involved in a physical assault as part of a gang ‘hit’ on another inmate.” Both statements are
supported by the Amended Presentence Investigation Report (“Amended PSR”), which notes that
Bailey was convicted of an assault on a prison guard and also arrested for a separate, gang-related
assault on an inmate. We therefore conclude that the District Court did not “rest[] its sentence on a
clearly erroneous finding of fact.” Cavera, 550 F.3d at 190.

         Second, Bailey contends that the District Court improperly relied on his arrest for the gang-
related incident because “[a]n arrest itself, without more, is an unreliable indicator of guilt.”
Appellant Br. at 25. While the Guidelines state that “[a] prior arrest record itself shall not be
considered” for purposes of an upward departure, U.S.S.G. § 4A1.3(a)(3) (emphasis added), this
language “does not, of course, mean that the conduct underlying such arrests may not be
considered,” United States v. Miller, 263 F.3d 1, 4 n.3 (2d Cir. 2001) (discussing identical language in
the applicable version of the Guidelines). Here, the Amended PSR gave a detailed description of the
New York State Police Investigation Report on the gang-hit assault for which Bailey was arrested; it
showed that that charge was disposed of by Bailey’s agreement to plead guilty on a later assault
charge; and Bailey made no objections to the description of the conduct underlying his gang-hit-
assault arrest. Accordingly, the District Court did not commit a procedural error when it upwardly
departed from the Guidelines, in part on account of the gang-related incident.




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                                                  II.

          Third, Bailey contends that the District Court provided an inadequate explanation for its
upward departure from the Guidelines. We disagree. In the oral pronouncement and the written
Statement of Reasons, the District Court examined Bailey’s decades-long and near continuous
record of violent behavior, much of which involved the use of weapons such as firearms. Based on
that record, it concluded that the Guidelines’ formula significantly under-represented the seriousness
of his criminal history and his risk to the public. We conclude that this explanation provides
“enough detail to allow a reviewing court, the defendant, his or her counsel, and members of the
public to understand . . . why the considerations used as justifications for the sentence are
sufficiently compelling or present to the degree necessary to support the sentence imposed.” United
States v. Sindima, 488 F.3d 81, 86 (2d Cir. 2007) (internal alteration and quotation marks omitted).

                                                  III.

        Finally, Bailey challenges the substantive reasonableness of the sentence. “Our review for
substantive unreasonableness is particularly deferential,” United States v. Thavaraja, 740 F.3d 253, 259
(2d Cir. 2014) (internal quotation marks omitted), and upon such review we find no error. For the
reasons articulated above, “the sentence imposed falls within the broad range that can be considered
reasonable under the totality of the circumstances.” Jones, 531 F.3d at 174.

       In sum, we conclude that the District Court’s sentence was neither procedurally nor
substantively unreasonable.

                                          CONCLUSION

        We have reviewed all of the arguments raised by Bailey on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the December 12, 2016 judgment of the
District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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