     16-4103-cr
     United States v. Hunter

                                      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 TO 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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 21st day of November, two thousand seventeen.
 4
 5   PRESENT:
 6              GERARD E. LYNCH,
 7              SUSAN L. CARNEY,
 8                          Circuit Judges.
 9              ALVIN K. HELLERSTEIN,*
10                          District Judge.
11   _________________________________________
12
13   UNITED STATES OF AMERICA,
14
15                                    Appellee,
16
17                             v.                                                        No. 16-4103-cr
18
19   MICHAEL HUNTER,
20
21                         Defendant-Appellant.
22   _________________________________________
23
24   FOR APPELLANT:                                             Barry D. Leiwant, Assistant Federal Public
25                                                              Defender, Federal Defenders of New
26                                                              York, Inc., New York, NY.
27


     * Judge Alvin K. Hellerstein, of the United States District Court for the Southern District of New York,
     sitting by designation.
 1   FOR APPELLEE:                                       Bridget M. Rohde, Acting United States
 2                                                       Attorney for the Eastern District of New
 3                                                       York, (Mark E. Misorek, David C. James,
 4                                                       Assistant United States Attorneys on the
 5                                                       brief), Brooklyn, NY.
 6
 7          Appeal from a judgment of the United States District Court for the Eastern District
 8   of New York (Bianco, J.).

 9          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
10   ADJUDGED, AND DECREED that the judgment entered on November 4, 2016, is
11   AFFIRMED.

12          Defendant-appellant Michael Hunter appeals the judgment of conviction entered on
13   November 4, 2016, sentencing him to 48 months’ imprisonment, to run consecutive to his
14   undischarged state sentence of 17 years and six months. The federal sentence was imposed
15   upon his conviction for violating the terms of his federal supervised release. We assume the
16   parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
17   on appeal, to which we refer only as necessary to explain our decision to affirm.

18          Hunter was serving an eight-year term of federal supervised release when, in 2009, he
19   was arrested for robbing and sexually assaulting a woman on a subway platform in New
20   York. Although, for a brief period after his arrest, he was found incompetent to stand trial,
21   he thereafter was found to be competent and, in 2013, he was tried and convicted in New
22   York State Supreme Court of several crimes arising out of the 2009 assault. He was
23   sentenced in state court to a term of 17 years and sixth months’ imprisonment, followed by
24   25 years’ post-release parole supervision. After Hunter’s state court conviction, the District
25   Court found that he violated the terms and conditions of his federal supervised release by
26   committing the 2009 crime. The District Court imposed a sentence of 48 months’
27   imprisonment, to run consecutive to his state incarceratory sentence. The 48-month
28   sentence was below Hunter’s Guidelines range of 51 to 60 months. See U.S.S.G. § 7B1.4(a);
29   18 U.S.C. § 3583(e)(3). The Guidelines provide that any term of imprisonment imposed
30   upon the revocation of supervised release should be served “consecutively to any sentence
31   of imprisonment that the defendant is serving, whether or not the sentence of imprisonment
                                                     2
 1   being served resulted from the conduct that is the basis of the revocation of probation or
 2   supervised release.” U.S.S.G. § 7B1.3(f).

 3          Hunter argues that the 48-month consecutive term is substantively unreasonable. We
 4   review the sentence imposed for a violation of supervised release for reasonableness, which
 5   is “akin to review for abuse of discretion.” United States v. Sindima, 488 F.3d 81, 85 (2d Cir.
 6   2007). A sentence is substantively unreasonable only in the “exceptional” case that it “cannot
 7   be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180,
 8   189 (2d Cir. 2008) (en banc). Our practice is to exercise “restraint, not micromanagement” in
 9   the execution of our appellate duties in this area. United States v. Fleming, 397 F.3d 95, 100 (2d
10   Cir. 2005).

11          District courts may revoke a term of supervised release and impose a term of
12   imprisonment when a defendant violates a condition of his supervised release. 18 U.S.C.
13   § 3583(e)(3). If the defendant is serving a state term of imprisonment when the court
14   revokes his supervised release, the court may choose to have the resulting term of
15   imprisonment run concurrent with or consecutive to the state term. 18 U.S.C. § 3584(a); see
16   also U.S.S.G. § 7B1.3. In making that decision, courts should consider the factors set forth in
17   18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b). These include, inter alia, the defendant’s personal
18   history and characteristics, the need to promote respect for the law and afford adequate
19   deterrence to criminal conduct, the need to protect the public from the defendant’s future
20   crimes, and the applicable Guidelines range. 18 U.S.C. § 3553(a).

21          Hunter’s 48-month sentence is below his Guidelines range. See U.S.S.G. § 7B1.4(a);
22   18 U.S.C. § 3583(e)(3). Although not every sentence that falls within the applicable
23   Guidelines range will be substantively reasonable, a Guidelines sentence is reasonable in the
24   “overwhelming majority” of cases. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006),
25   abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007). In light of Hunter’s
26   repeated inability to comply with the terms and conditions of his release, the District Court
27   reasonably determined that a “very lengthy sentence [wa]s needed to deter him” from
28   additional violations. App’x at 51-52. Based on these considerations, the 48-month sentence
29   imposed is an appropriate sanction for Hunter’s conduct.
                                                       3
 1           Hunter argues that requiring this sentence to be served consecutive to the state term
 2   is unnecessarily harsh. He contends that his lengthy state sentence fully accomplishes the
 3   goals of sentencing, and that any additional term of incarceration violates the general
 4   principle that sentences should be no longer than necessary to accomplish the goals of
 5   sentencing. A sentence for violation of supervised release, however, is not intended to
 6   punish the defendant for the underlying crime. Sindima, 488 F.3d at 86. Rather, it is intended
 7   to sanction the defendant’s “breach of trust” with the court. Id. A consecutive term,
 8   therefore, serves a unique purpose regardless of the length of the underlying state sentence.
 9   Here, a consecutive sentence was particularly appropriate in light of the District Court’s
10   conclusion that Hunter’s breach of the court’s trust was “flagrant.” App’x at 51.

11           Neither Hunter’s cognitive difficulty nor the fact that he will be 59 years old when he
12   completes his state term of imprisonment casts doubt on the reasonableness of the District
13   Court’s judgment. The District Court did lower Hunter’s sentence from the Guidelines range
14   of 51 to 60 months to 48 months to account for his possibly diminished mental capacity.
15   The District Court was also entitled to find that the importance of deterring Hunter from
16   additional criminal activity outweighed any remaining concerns about the exact level of his
17   intellectual functioning, particularly in light of the New York state court’s finding that
18   Hunter was competent to stand trial. Finally, although district courts may consider the
19   possibility, based on statistical analyses, that defendants may generally be less likely to
20   reoffend as they age, courts are not required to favor statistical models over evidence
21   suggesting that a particular defendant is likely to reoffend, even as he or she ages. See United
22   States v. Jenkins, 854 F.3d 181, 192 (2d Cir. 2017) (“[I]t would be well within a district court’s
23   discretion to increase a sentence based on a likelihood of reoffending [if there was] . . . some
24   support in the record for that conclusion, such as, for example, a record of previous
25   convictions . . . .”).

26           We conclude accordingly that the District Court’s decision to impose a 48-month
27   sentence to run consecutive to the state term lies within the range of permissible decisions
28   and is not substantively unreasonable.


                                                      4
1                                            * * *

2         We have considered Hunter’s remaining arguments and conclude that they are
3   without merit. Accordingly, we AFFIRM the judgment of the district court.

4                                                    FOR THE COURT:
5                                                    Catherine O’Hagan Wolfe, Clerk of Court




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