      18-3690-cr
      United States v. Henry T. Dean, III

18‐3690‐cr
United States v. Henry T. Dean, III

                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 13th day of January, two thousand twenty.

PRESENT:            ROBERT D. SACK,
                    DENNY CHIN,
                    JOSEPH F. BIANCO,
                                         Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA,
                    Appellee,

                                        v.                                         18‐3690‐cr

HENRY T. DEAN, III,
                                        Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE:                                                TIFFANY H. LEE, Assistant United States
                                                             Attorney, for James P. Kennedy, Jr., United
                                                             States Attorney for the Western District of New
                                                             York, Rochester, New York.

FOR DEFENDANT‐APPELLANT:                                     DEVIN MCLAUGHLIN, Langrock Sperry &
                                                             Wool, LLP, Middlebury, Vermont.
              Appeal from the United States District Court for the Western District of

New York (Wolford, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Henry T. Dean, III appeals from a judgment entered

December 6, 2018, after a guilty plea, convicting him of wire fraud in violation of 18

U.S.C. § 1343. The district court sentenced Dean principally to 36 monthsʹ

imprisonment, to be followed by three years of supervised release. On appeal, Dean

challenges the reasonableness of his sentence. We assume the partiesʹ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

              Between September 2014 and October 2016, Dean engaged in a scheme to

defraud individuals who wanted to rent vacation property located in the Western

District of New York. Dean advertised two vacation rentals, the Finger Lakes Guest

House (ʺFLGHʺ) and the Watkins Glen Guest House (ʺWGGHʺ), on various rental

websites. Dean encouraged customers to book ahead although he assured them that

they could cancel the reservation and receive a full refund up to 60 days prior to arrival.

              In March 2016, the New York State Police (the ʺNYSPʺ) initiated an

investigation in response to complaints that Dean was providing false information in

online advertisements regarding FLGH in Schuyler County, and refusing to return

rentersʹ money after they determined the rental was uninhabitable. Victims from


                                             2
different states had contacted local law enforcement in 2016 after not receiving money

back from Dean. On March 10, 2016, NYSP Investigators discovered that FLGH was

still under construction, despite its online listing describing the property as a large

vacation rental containing 10 bedrooms and 9 bathrooms with numerous amenities,

including a six‐person hot tub, a fish pond, several waterfalls and streams, and three

ovens in the kitchen, none of which were found by the investigators. As for WGGH,

Dean also made blatant misrepresentations about the property, inducing victims to

submit deposits, which he refused to refund when reservations were cancelled. In total,

some 23 individual victims were thus defrauded of approximately $137,272.

              On March 19, 2018, Dean pleaded guilty to Count 10 of the superseding

indictment, which charged him with wire fraud in violation of 18 U.S.C. § 1343. The

plea agreement contained a Guideline sentence of 15 to 21 monthsʹ imprisonment. The

presentence investigation report (the ʺPSRʺ) similarly calculated Deanʹs Guideline range

of imprisonment to be 15 to 21 months. The PSR also noted that both Dean and the

government reserved the right to recommend a sentence outside the Sentencing

Guidelines range.

              On December 3, 2018, the district court sentenced Dean principally to 36

monthsʹ imprisonment, to be followed by a three‐year term of supervised release, and

restitution in the amount of $119,473.93. On appeal, Dean argues that the sentence

imposed by the district court is procedurally unreasonable because the court (1) failed


                                              3
to adequately consider the Sentencing Guidelines, (2) considered uncharged conduct,

and (3) failed to consider Guidelines instructions governing financial losses. He also

argues that the sentence is substantively unreasonable because the upward variance

was imposed without justification.

                                STANDARD OF REVIEW

              ʺWe review sentencing decisions for procedural and substantive

reasonableness.ʺ United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019). We apply a

ʺdeferential abuse‐of‐discretion standardʺ to both procedural and substantive review.

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United

States, 552 U.S. 38, 41 (2007)). ʺA district court commits procedural error where it fails

to calculate (or improperly calculates) the Sentencing Guidelines range, treats the . . .

Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a

sentence based on clearly erroneous facts, or fails adequately to explain the chosen

sentence.ʺ United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citation omitted). In

analyzing the substantive reasonableness of a sentence, this Court ʺwill identify as

substantively unreasonable only those sentences that are so shockingly high, shockingly

low, or otherwise unsupportable as a matter of law that allowing them to stand would

damage the administration of justice.ʺ United States v. Singh, 877 F.3d 107, 115 (2d Cir.

2017) (citation and internal quotation marks omitted).




                                              4
              Because Dean did not raise his arguments during the sentencing

proceeding, we review Deanʹs procedural reasonableness challenge under the plain

error standard. United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (per curiam)

(ʺWhere, as here, a defendant contests the procedural reasonableness of his sentence on

appeal, but did not raise his objections before the district court, we review for plain

error.ʺ).1

                                    DISCUSSION

        I.    Procedural Reasonableness

              The district court did not commit plain error in imposing Deanʹs sentence.

First, the district court adequately considered the § 3553(a) factors, as the record shows

that the district court examined the Guidelinesʹ treatment of Deanʹs offense in the

context of his conduct with the victims, and accounted for Deanʹs mitigating

circumstances. For example, the district court stated specific reasons for its decision,

characterizing Deanʹs ʺcriminal historyʺ as ʺrather significant, in terms of the number of

offenses or convictions,ʺ and noting that he ʺintentionally accept[ed] money based on

false pretenses and false representations when under no reasonable view of the facts

[was he] going to be able to deliver what was promised.ʺ Appʹx at 82, 87. The district




1       On the substantive reasonableness challenge, this Court has ʺnot decided whether plain
error review applies to an unpreserved challenge to the substantive reasonableness of a
sentence.ʺ See United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014). We need not
resolve that issue here because Deanʹs challenge fails on the merits.
                                               5
court also emphasized that Deanʹs criminal scheme was not an isolated incident and

that the sentence imposed needed to ʺreflect the seriousness of the offense, . . . afford

adequate deterrence to criminal conduct and protect the public from any further crimes

that [Dean] might commit.ʺ Appʹx at 87.

                Second, the district court committed no procedural error in addressing the

new allegations of fraud raised by the government at sentencing. Although the district

court accepted the fact that additional individuals called the U.S. Attorneyʹs Office and

asserted that Dean defrauded them, the district court explicitly stated three times

during the sentencing proceeding that it would not consider the substance of these

disputed allegations of fraud because the allegations were unproven. See Appʹx at 67

(ʺAnd I can tell you, Iʹm not going to consider that in connection with sentencing

because the fact of the matter is, I donʹt have any way to determine the veracity of the

complaints . . . .ʺ); see also Appʹx at 51, 66. By stating that it would not consider these

new allegations at sentencing, the district court clearly followed the proper procedure

for resolving this disputed issue. See Fed. R. Crim. P. 32(i) (ʺAt sentencing, the court . . .

must ‐‐ for any disputed portion of the presentence report or other controverted matter

‐‐ rule on the dispute or determine that a ruling is unnecessary either because the matter

will not affect sentencing, or because the court will not consider the matter in

sentencing . . . .ʺ).




                                               6
              Third, the district court did not commit procedural error in not

considering the Guidelinesʹ instruction for departures in financial loss cases, pursuant

to U.S.S.G. § 2B1.1. This provision, and its relevant instructions, applies to sentencing

departures, not variances. As a result, it is inapplicable here because the district court

imposed an upward variance, not an upward departure.2 Even if the instruction for

departures in financial loss cases informed the sentence fashioned by the district court,

that Guideline instruction provides a non‐exhaustive list of grounds that may justify a

higher sentence. Additional grounds not listed may also justify a higher sentence.

              Accordingly, Dean has not demonstrated any error, let alone plain error,

and his sentence was procedurally reasonable.

       II.    Substantive Reasonableness

              We further conclude that Deanʹs sentence was substantively reasonable.

When a district court deviates from an advisory Guidelines range, it must consider the

ʺextent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.ʺ Cavera, 550 F.3d at 189 (quoting Gall, 552 U.S. at

50). Here, the degree of the upward variance is not ʺshockingly high.ʺ Singh, 877 F.3d

at 115. The district court properly considered the nature and circumstances of the




2       In a non‐precedential summary order, this Court has rejected a similar argument. See,
e.g., United States v. McGowan, 315 F. Appʹx 338, 342 (2d Cir. 2009) (summary order) (ʺbecause
the court imposed a non‐Guidelines sentence, McGowanʹs argument that the court failed to
follow the procedures applicable to departures under U.S.S.G. § 4A1.3 is unavailingʺ).
                                                7
crime, and Deanʹs history and characteristics, in explaining its decision to impose an

upward variance. The district court carefully considered the extent of the deviation

and justified the 15‐month variance based upon the § 3553(a) factors, including Deanʹs

ʺdanger to the community,ʺ his ʺrisk of recidivism,ʺ his ʺefforts to minimize the

fraudulent conduct,ʺ and the ʺinexcusable harmʺ caused to the ʺ[victims], all of which

the court was entitled to consider.ʺ Appʹx at 93; see Wasman v. United States, 468 U.S.

559, 563 (1984) (ʺThe sentencing court . . . must be permitted to consider any and all

information that reasonably might bear on the proper sentence for the particular

defendant, given the crime committed.ʺ). Accordingly, we conclude that Deanʹs

sentence was substantively reasonable.

                                         *   *   *

              We have considered Deanʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk




                                             8
