16-3072-cr
United States v. Morris

                     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 20th day of September, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             JOSÉ A. CABRANES,
             RAYMOND J. LOHIER, JR.
                           Circuit Judges.

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    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               16-3072-cr

    TYQUAN MORRIS,
             Defendant-Appellant.

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    FOR APPELLANT:                        COLLEEN P. CASSIDY, Federal
                                          Defenders of New York, New York,
                                          NY.

    FOR APPELLEES:                        JASON M. SWERGOLD (Karl Metzner
                                          on the brief), for Joon H. Kim,

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                           Acting United States Attorney
                           for the Southern District of New
                           York, New York, NY.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Cote, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Tyquan Morris pleaded guilty to being a felon in
possession of ammunition in the United States District Court
for the Southern District of New York. At sentencing, the
parties stipulated that Morris’s sentencing guidelines range
was 57-71 months; the district court, however, sentenced
Morris to ten years in prison, the statutory maximum.
Morris does not challenge his conviction, but contends that
his sentence was procedurally and substantively
unreasonable. Our review of the reasonableness of a
sentence is akin to abuse-of-discretion review.1 United
States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in
banc). We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     1. Morris argues that the district court committed
procedural error by failing to adequately explain why it
imposed the maximum sentence. See id. at 190 (“A district
court commits procedural error where it . . . . fails
adequately to explain its chosen sentence[.]”). A district
court “must at least explain--in 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 citation and alteration omitted)
(quoting United States v. Rattoballi, 452 F.3d 127, 137 (2d
Cir. 2006), abrogated in part on other grounds by Kimbrough


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      The government contends that we should review
Morris’s procedural unreasonableness argument for plain
error because Morris did not preserve the issue in the
district court. In any event, Morris’s argument fails under
the less demanding abuse-of-discretion standard.
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v. United States, 552 U.S. 85 (2007)). When, as here, the
district court imposes a sentence substantially above the
guidelines range, district courts should provide a
correspondingly more robust justification of the sentence.
See United States v. Aldeen, 792 F.3d 247, 252 (2d Cir.
2015).

     Morris argues that the district court’s explanation was
insufficient because it failed to consider mitigating
factors, and instead relied almost exclusively on the fact
that Morris fired a handgun on the sidewalk of a busy
street.

     The district court’s explanation was sufficient. True,
the district court (appropriately) emphasized that shooting
a gun on a populated street is highly dangerous, and
observed that Morris chose to “re-engage with the most
deadly kind of violence” in which “there could easily have
been a death.” App’x at 74, 90. But the district court
made clear that its sentence was also based on Morris’s risk
of recidivism: his offense conduct occurred less than a year
after he finished another sentence stemming from
participation in a violent drug conspiracy. The district
court identified both of those considerations (the danger
Morris posed to his community, and his likelihood of
recidivism) as “predominant in [the district court’s] mind,”
id. at 90, and recited that it had considered all of the
relevant sentencing factors set out in 18 U.S.C. § 3553(a).

     Contrary to Morris’s suggestion, the district court did
consider mitigating circumstances. In particular, the
district court underscored Morris’s ability to find and
maintain a job after prison, calling this “no small
accomplishment[].” Id. Nonetheless, the district court
made clear that it viewed Morris’s firing of a gun and his
risk of recidivism to be sufficiently serious to outweigh
any mitigating factors and to justify an upward departure in
Morris’s sentence. We conclude that the district court
sufficiently explained its sentence.

     2. Morris argues substantive unreasonableness. “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.’” Cavera, 550 F.3d at 189 (quoting
United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
A sentence may be substantively reasonable even though we

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would have   weighed the sentencing factors differently; with
respect to   any one sentencing factor, we consider only
“whether a   factor relied on by a sentencing court can bear
the weight   assigned to it.” Id. at 191.

     The district court did not abuse discretion in
sentencing Morris to the statutory maximum sentence. Morris
engaged in extraordinarily dangerous behavior. He fired at
least two shots down a populated street, while standing near
a group of bystanders. The shooting occurred within a year
of Morris’s completion of a sentence for another violent
crime. In light of Morris’s dangerous behavior and his
criminal history, we cannot say that the district court’s
decision to impose a ten-year sentence was outside “the
range of permissible decisions.”

     Morris argues that a ten-year sentence cannot be
justified in light of the absence of any injury caused by
the shooting, his acceptance of responsibility and guilty
plea, his demonstrated ability to hold down a legitimate
job, the letters of support from his family and employer,
and his troubled childhood. But the district court
concluded that those factors were outweighed by danger to
the community and the likelihood of recidivism, and we
cannot say that the district court placed undue emphasis on
them. Accordingly, we decline to overturn Morris’s sentence
on substantive reasonableness grounds.

     For the foregoing reasons, and finding no merit in
Morris’s other arguments, we hereby AFFIRM the judgment of
the district court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




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