         09-1358-cr
         United States v. Bean



 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                       SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 8   PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT
 9   FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN ELECTRONIC
10   DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE
11   A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13              At a stated term of the United States Court of Appeals for the Second Circuit, held at
14       the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
15       York, on the 8th day of March, two thousand ten.
16
17       PRESENT:
18                   JOHN M. WALKER, JR.,
19                   DEBRA ANN LIVINGSTON,
20                   GERARD E. LYNCH,
21                               Circuit Judges.
22       __________________________________________
23
24       United States of America,
25
26                          Appellee,
27
28                          v.                                            09-1358-cr
29
30       Michael D. Bean,
31
32                   Defendant-Appellant.
33       __________________________________________
34
35       FOR APPELLANT:                 PHILIP L. WEINSTEIN, Federal Defenders of New York, Inc.,
36                                      Appeals Bureau, New York, N.Y.
37
38       FOR APPELLEE:                  KARIN ORENSTEIN, Assistant United States Attorney (SUSAN
39                                      CORKERY, Assistant United States Attorney, on the brief) for
40                                      BENTON J. CAMPBELL, United States Attorney for the Eastern
41                                      District of New York, New York, N.Y.
42
 1          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3          Defendant-Appellant Michael D. Bean appeals from a March 25, 2009 judgment of the

 4   United States District Court for the Eastern District of New York (Irizarry, J.), sentencing him

 5   principally to 120 months’ imprisonment. We assume the parties’ familiarity with the underlying

 6   facts, procedural history, and the issues on appeal.

 7          On January 10, 2007, Bean pleaded guilty to a single-count indictment charging that on

 8   September 29, 2006, Bean, having previously been convicted of a crime punishable by a term of

 9   imprisonment exceeding one year, knowingly possessed a firearm in violation of 18 U.S.C.

10   §§ 922(g)(1) and 924(a)(1). The United States Probation Department submitted a Presentence

11   Report (“PSR”) on April 4, 2007, calculating Bean’s base offense level as 17 and his criminal history

12   category as III, resulting in a Guidelines range of 30 to 37 months. The PSR also detailed Bean’s

13   numerous contacts with the criminal justice system, including a 1972 kidnaping conviction and a

14   1977 conviction for oral copulation with a minor, neither of which were included in the PSR’s

15   Guidelines range calculation because they were too remote in time. On July 13, 2007, the district

16   court, noting that Bean’s criminal history was “severely” under-represented by his criminal history

17   category but without performing the calculation required for a horizontal departure, sentenced Bean

18   principally to 120 months in prison, the statutory maximum. Bean appealed his sentence, and on

19   November 7, 2008, a panel of this Court remanded for resentencing so that the district court could

20   calculate the applicable Guidelines range, including, if necessary, a horizontal departure in Bean’s

21   criminal history category to take into account his “extensive and serious criminal record.” United

22   States v. Bean, 299 F. App’x 55 (2d Cir. 2008) (summary order).


                                                      2
 1          Bean was resentenced on March 25, 2009. In preparation for resentencing, Bean and the

 2   government made submissions to the district court. In a March 11, 2009 letter, Bean acknowledged

 3   the district court’s concerns with the underrepresentation of Bean’s criminal history in the Guidelines

 4   range as calculated in the PSR. Thus, he explained that “[i]f the Court believes that Mr. Bean’s

 5   criminal history is under-represented without [his 1972 and 1977] criminal convictions, upwardly

 6   departing to include those convictions will result in a guideline calculation that will increase both

 7   his base offense level and his criminal history calculation.” Bean calculated his base offense level

 8   as 21 and his criminal history category as V, resulting in a Guidelines range of 70-87 months. Bean

 9   reiterated his assent to this calculation at resentencing. Thus, as suggested by Bean, the court

10   calculated a Guidelines range of 70-87 months, but after considering the Section 3553(a) factors,

11   again sentenced Bean to 120 months, the statutory maximum.

12          We review Bean’s sentence for reasonableness, but that “does not entail the substitution of

13   our judgment for that of the sentencing judge.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.

14   2006). Rather, “the familiar abuse-of-discretion standard of review now applies to appellate review

15   of sentencing decisions.” Gall v. United States, 552 U.S. 38, 46 (2007). We review a sentence for

16   both procedural and substantive reasonableness. United States v. Jones, 531 F.3d 163, 170 (2d Cir.

17   2008). Failure to calculate, or improperly calculating, the Guidelines range, treating the Guidelines

18   range as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based

19   on clearly erroneous facts, or failing to adequately explain the chosen sentence and deviation from

20   the Guidelines range can render a sentence procedurally unreasonable. Jones, 531 F.3d at 170. In

21   reviewing for substantive reasonableness, we determine whether the district court’s sentence is

22   located “within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d


                                                       3
 1   Cir. 2008) (en banc) (internal quotation marks omitted). While the Section 3553(a) factors “guide

 2   appellate courts . . . in determining whether a sentence is unreasonable,” United States v. Booker,

 3   543 U.S. 220, 261 (2005), we will “not substitute our own judgment for the district court’s on the

 4   question of what is sufficient to meet the § 3553(a) considerations in any particular case.” Cavera,

 5   550 F.3d at 189. Our judgment of a sentence’s substantive reasonableness, moreover, must be

 6   informed by “the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51. When

 7   a district court decides upon a non-Guidelines sentence, she “must consider the extent of the

 8   deviation and ensure that the justification is sufficiently compelling to support the degree of the

 9   variance.” Id. at 50.

10          On appeal, Bean argues that his sentence was procedurally unreasonable because the district

11   court incorrectly calculated his Guidelines range and because the district court improperly relied on

12   Bean’s arrest records and an ongoing state criminal investigation in computing his sentence. He

13   argues that his sentence is substantively unreasonable because of its deviation from the Guidelines

14   range. We reject both arguments.

15          With regard to his contention that the district court improperly calculated his Guidelines

16   range, since Bean urged the very calculation that was performed by the district court, he has waived

17   this argument on appeal. We have held that “issues not raised in the trial court because of oversight,

18   including sentencing issues, are normally deemed forfeited on appeal unless they meet our standard

19   for plain error.” United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). However, where “a

20   claim has been waived through explicit abandonment, rather than forfeited through failure to object,

21   plain error review is not available.” United States v. Jackson, 346 F.3d 22, 24 (2d Cir. 2003). That

22   is, “plain error review is available only for issues ‘not intentionally relinquished or abandoned.’”


                                                       4
 1   Id. (quoting United States v. Gore, 154 F.3d 34, 41 (2d Cir. 1998)). “A finding of true waiver

 2   applies with even more force when, as in this case, defendants not only failed to object to what they

 3   now describe as error, but they actively solicited it . . . .” United States v. Quinones, 511 F.3d 289,

 4   321 (2d Cir. 2007). Thus, we will not review Bean’s waived argument that the district court erred

 5   in adopting the Guidelines range that he urged.

 6          Moreover, the district court did not commit procedural error by relying on Bean’s arrest

 7   record or the pending investigation. With regard to Bean’s arrest history, in its statement of reasons,

 8   the district court noted this history but then expressly stated that “[n]o criminal history points were

 9   assessed for these arrests, and as the Probation Department was unable to learn the underlying facts

10   for these arrests the Court cannot and has not considered them in determining [Bean’s] sentence.”

11   With regard to the pending investigation, the defense raised this matter at sentencing, asking the

12   court to consider potential punishment as a result of this investigation as a reason not to impose a

13   non-Guidelines sentence. The record does not support the defense’s argument that this matter was

14   improperly taken into account.

15          Finally, the 120-month sentence is not substantively unreasonable. In imposing a non-

16   Guidelines sentence, it was proper for the district court to consider Bean’s extensive contacts with

17   the criminal justice system, including his nearly unbroken pattern of being released and then

18   violating his parole since his 1980 conviction for murder and rape. 18 U.S.C. § 3553(a). In

19   imposing the sentence, the district court adequately considered the Section 3553(a) factors, and in

20   particular emphasized Section 3553(a)(2)(B), the need to deter criminal conduct, and Section

21   3553(a)(2)(C), the need to protect the public from further crimes of the defendant. In so weighing

22   the Section 3553(a) factors, the court did not abuse its discretion when it imposed a non-Guidelines


                                                       5
 1   sentence. Finally, although his sentence of 120 months, as urged by Bean on appeal, is more than

 2   double the Guidelines range, “[b]y itself, this is insufficient to demonstrate substantive

 3   unreasonableness” because “[t]he Supreme Court has expressly rejected the use of mathematical

 4   formulas to gauge substantive unreasonableness.” United States v. Verkhoglyad, 516 F.3d 122, 134

 5   (2d Cir. 2008) (affirming substantive reasonableness of a sentence more than five times the upper

 6   end of the applicable policy statement range). Only rarely will the “brevity or length of a

 7   sentence . . . exceed the bounds of reasonableness.” Id. (internal quotation marks omitted). Given

 8   Bean’s history of violence and sexual abuse, and demonstrated recidivism and repeated disregard

 9   for the law, and since the district court adequately explained the chosen sentence, this is not one of

10   the “exceptional cases” where the district court’s decision “cannot be located within the range of

11   permissible decisions.” Cavera, 550 F.3d at 189.

12            We have considered the remainder of Bean’s claims and determined them to be without

13   merit.

14            For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

15
16
17
18                                                  FOR THE COURT:
19                                                  Catherine O’Hagan Wolfe, Clerk
20

21




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