15-2317
United States v. Kinsey

                           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, at 40 Foley Square, in the City of New York, on
the 21st day of September, two thousand sixteen.

Present:        ROBERT A. KATZMANN,
                     Chief Judge,
                ROBERT D. SACK,
                PETER W. HALL,
                     Circuit Judges.


UNITED STATES OF AMERICA,

       Appellee,

                -v-                               No. 15-2317

DAMIEN KINSEY,

       Defendant-Appellant.


For Defendant-Appellant:                          Darrell B. Fields, Of Counsel, Federal
                                                  Defenders of New York, Inc., New York,
                                                  NY.

For Appellee:                                     Susan Corkery, Mark E. Bini, Assistant
                                                  United States Attorneys, Of Counsel, for
                                                  Robert L. Capers, United States Attorney for
                                                  the Eastern District of New York, Brooklyn,
                                                  NY.


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      Appeal from the United States District Court for the Eastern District of New York
(Amon, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

       Damien Kinsey was sentenced to 87 months in prison and three years of supervised

release for committing a series of bank robberies in September and October 2006. Five months

after he was released in 2013, Kinsey committed another string of bank robberies. Kinsey was

arrested and pled guilty to five counts of bank robbery, as well as violating his supervised

release. He was sentenced to 60 months’ imprisonment and three years’ supervised release for

the robberies in the United States District Court for the Southern District of New York (Briccetti,

J.), and sentenced to an additional 24 months’ imprisonment to be served consecutively for

violating his supervised release in the Eastern District (Amon, J.). In this appeal, he challenges

the 24-month sentence as substantively unreasonable, arguing that the district court failed to take

into account his crack cocaine addiction, his chaotic childhood, and his age. We find that none of

these claims have merit and affirm.

       We examine the reasonableness of a sentence both for substance, “in light of the factors

enumerated under 18 U.S.C. § 3553(a),” and for “the procedures a district court employs in

arriving at a sentence.” United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007). “The

standard of review on the appeal of a sentence for violation of supervised release is . . . the same

standard as for sentencing generally: whether the sentence imposed is reasonable.” United States

v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005).

       It is rare for this Court to vacate a sentence as substantively unreasonable: “We will . . .

set aside a district court’s substantive determination only in exceptional cases where the trial

court’s decision cannot be located within the range of permissible decisions.” United States v.



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

omitted), cert denied, 556 U.S. 1268 (2009). Although our review is not a mere “rubber stamp,”

we have reversed only in “those few cases that, although procedurally correct, would nonetheless

damage the administration of justice because the sentence imposed was shockingly high,

shockingly low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d

108, 122-23 (2d Cir. 2009).

       Kinsey contends that his 24-month sentence is substantively unreasonable because he

suffers “from crack-cocaine use disorder and from depression as a result of severe childhood

physical and emotional abuse, and these untreated afflictions were significant contributing causes

of his criminal behavior.” Br. for Def.-Appellant Damien Kinsey 2. He argues that the district

court failed to account properly for these mitigating factors. He also points out for the first time

on appeal that he will be in his 40s when he finishes his 60-month prison sentence, an age at

which defendants are generally less likely to recidivate.

       A court sentencing a defendant for violating supervised release is not responsible for

punishing the defendant’s misconduct; rather, its focus is on the “defendant’s breach of trust” in

violating the conditions of supervised release. U.S.S.G. Ch. 7, Pt. A (3)(b). As this Court has

observed, “[t]he Commission adopted the policy . . . that the primary goal of a revocation

sentence ought to be to sanction the violator for failing to abide by the conditions of the court-

ordered supervision, in order to account for the breach of trust inherent in failing to appreciate

the privileges associated with such supervision. Thus, at revocation the court should sanction

primarily the defendant’s breach of trust, while taking into account, to a limited degree, the

seriousness of the underlying violation and the criminal history of the violator.” United States v.

Sindima, 488 F.3d 81, 86 (2d Cir. 2007) (citations and internal quotation marks omitted).




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       Here, as the district court determined, Kinsey breached the court’s trust by engaging in

the same misconduct for which he was on supervised release in the first place. The district court

acknowledged Kinsey’s argument that the abuse he suffered as a child should be considered as a

mitigating factor, but determined that his background could not excuse his decision to commit

five bank robberies within a year of being released from prison. Likewise, the district court

discussed at length Kinsey’s contention that he had committed his crimes because of his drug

addiction, but concluded that it was Kinsey’s own fault for failing to avail himself of

opportunities for help. The record thus indicates that the district court was well aware of

Kinsey’s background, but rejected his argument that it should mitigate his serious breach of trust.

It is not our role to reweigh the factors that the district court considered in imposing its sentence;

“[r]ather, the weight to be afforded any § 3553(a) factor ‘is a matter firmly committed to the

discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately

imposed is reasonable.’” United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008)

(quoting United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006)). Kinsey has provided no

reason to suggest that a 24-month sentence is unreasonable for the serious breach of trust he

committed by robbing five banks during his supervised release. Nor has he demonstrated that it

was plain error for the district court to not consider his age upon release, given his propensity to

recidivate.

       We have examined the remainder of Kinsey’s arguments and are not persuaded by them.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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