10-2268-cr
United States v. Walsh

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 8th day of April, two thousand and eleven.

PRESENT:


          RALPH K. WINTER,
          JOSÉ A. CABRANES,
                       Circuit Judges,
          MARK R. KRAVITZ,
                       Judge.*

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UNITED STATES OF AMERICA,

                     Appellee,

                     -v.-                                                                      No. 10-2268-cr

BRENDAN WALSH,

                     Defendant-Appellant.
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*

     The Honorable Mark R. Kravitz, of the United States District Court for the District of Connecticut, sitting by
    designation.

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FOR DEFENDANT-APPELLANT:                           Melissa A. Tuohey, Assistant Federal Public Defender
                                                   (Lisa A. Peebles, Federal Public Defender, James P.
                                                   Egan, on the brief), Office of the Federal Public
                                                   Defender of the Northern District of New York,
                                                   Syracuse, NY.

FOR APPELLEE:                                      Brenda K. Sannes, Assistant United States Attorney
                                                   (Richard S. Hartunian, United States Attorney,
                                                   Miroslav Lovric, Assistant United States Attorney, on
                                                   the brief), United States Attorney’s Office for the
                                                   Northern District of New York, Syracuse, NY.


        Appeal from a May 18, 2010 judgment of the United States District Court for the Northern
District of New York (Thomas J. McAvoy, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED. The cause is
REMANDED to the District Court solely to permit the amendment of the judgment.

        Brendan Walsh challenges the reasonableness of a 24-month term of incarceration imposed
for nine violations of his conditions of supervised release, which carried an applicable sentencing
range under U.S.S.G § 7B1.4 of 3 to 9 months. Walsh contends that his sentence is unreasonable
because the district court failed to justify the imposition of a sentence higher than that recommended
by the United States Sentencing Guidelines pursuant to 18 U.S.C. § 3553(c) and because the
sentence’s length is not commensurate with a consideration of the sentencing factors enumerated in
18 U.S.C. § 3553(a). We assume the parties’ familiarity with the facts and the procedural history on
appeal.

         We review sentences for violations of supervised release—as we do all sentences—for
reasonableness, which amounts to review for “abuse of discretion.” United States v. Cavera, 550 F.3d
180, 187, 189 (2d Cir. 2008) (in banc). A district court has abused its discretion if it has (1) “based its
ruling on an erroneous view of the law,” (2) made a “clearly erroneous assessment of the evidence,”
or (3) “rendered a decision that cannot be located within the range of permissible decisions.” Sims v.
Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citations and internal quotation marks omitted). Because
Walsh failed to object to his sentence below, our review is for plain error. See Fed. R. Crim. P. 52(b).
We find plain error where (1) there is error; (2) that is plain; (3) that affects substantial rights; and (4)
that affects the fairness, integrity, or public reputation of judicial proceedings. See, e.g., United States v.
Dorvee, 616 F.3d 174, 180 (2d Cir. 2010).

I.      Procedural Reasonableness

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         Pursuant to § 3553(c), a district court, at the time of sentencing, must “state in open court
the reasons for its imposition of the particular sentence.” If, however, the sentence imposed is
outside the applicable range prescribed by the Guidelines, the sentencing court must also state “the
specific reason for the imposition of a sentence different” from that prescribed by the Commission
and memorialize that reason “in the written order of judgment and commitment.” 18 § 3553(c)(2);
see United States v. Hall, 499 F.3d 152, 153 n.1 (2d Cir. 2007). It is well settled that in considering a
district court’s compliance with § 3553(c)(2), “a court’s statement of its reasons for going beyond
non-binding policy statements in imposing a sentence after revoking a defendant’s [probationary] term
need not be as specific as has been required when courts departed from guidelines that were . . .
considered to be mandatory.” United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005) (emphasis in
original). As a result, we have held that where the term of incarceration was explicitly justified in
relation to well-recognized sentencing objectives, an “oral explanation . . . [is] more than sufficient to
inform the defendant and public of the reasons for the particular sentence and to permit our review
for reasonableness.” United States v. Verkhoglyad, 516 F.3d 122, 133 (2d Cir. 2008) (quotation marks
omitted); cf. United States v. Buissereth, — F.3d —, 2011 WL 873143 (2d Cir. Mar. 15, 2011) (discussing
failure to sufficiently articulate § 3553(a) in circumstances where defendant has signed a valid appeal
wavier).

         Here, as in Verkhoglyad, the District Court reviewed Walsh’s violations of supervised release
and discussed, at considerable length, the appropriateness of a penalty necessary to “deter [Walsh
from] committing future violations and to . . . get [him] some help in rehabilitation in a controlled
setting.” Moreover, while Walsh attempted to excuse his violations, which included “failure to
report,” “failure to follow instructions,” “failure to participate in mental health counseling” and
“failure to perform community service as directed,” as a consequence of being “incredibly busy”
with plans for a new business venture, the District Court explained that “you don’t get to choose
what you have to do when.” Accordingly, inasmuch as the District Court’s clearly articulated a
concern for the seriousness of Walsh’s violations and the necessity of incarceration, we cannot say
that the District Court failed to adequately justify in open court the reasons for the sentence
imposed.

II.     Substantive Reasonableness

        We also reject Walsh’s claim that the District Court’s imposition of a sentence at the
statutory maximum was substantively unreasonable. “The Supreme Court has expressly rejected the
use of mathematical formulas to gauge substantive unreasonableness.” Verkhoglyad, 516 F.3d at 143
(citing Gall v. United States, 552 U.S. 38, 47 (2007). Indeed, in United States v, Fleming, this Court held
that the imposition of a 24-month sentence on revocation of supervised release where the
underlying applicable guidelines contemplated a 5 to 11 month range was not substantively
unreasonable where the District Court concluded, in light of the statutory factors enumerated under
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§ 3553(a), that the primary purpose of the sentence was punishment and deterrence in response to
multiple serious violations of the defendants terms of supervised release. 397 F.3d 93, 100-01 (2d
Cir. 2005). That is exactly the situation we confront here. As such, we have no trouble concluding
that a 24-month sentence was not one of the “exceptional cases where the trial court’s decision
cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189.

III.    Remand under § 3553(c)(2)

        Nevertheless, it appears—and both parties acknowledge—that the written judgment of the
District Court fails to state the reasons for its departure from the Guidelines sentence as required by
18 U.S.C. § 3553(c)(2). In the past, our Court has suggested it to be the “better course” to remand
such matters to the district court for a supplementation of the written record. See, e.g., Verkhoglyad,
516 F.3d at 134; United States v. Goffi, 446 F.3d 319, 322 n. 2 (2d Cir. 2006); Jones, 460 F.3d. at 97. We
emphasize that we identify no substantive or procedural error warranting resentencing. Remand is
appropriate here solely to permit the district court to amend its written judgment to satisfy the
“ministerial duty to memorialize its stated reasons for sentencing as required by § 3553(c)(2).”
Verkhoglyad, at 134.

                                           CONCLUSION

         We have considered all of Walsh’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the judgment of the District Court, but the case is
REMANDED for the limited purpose of allowing the district judge to amend the written judgment
to satisfy the ministerial duty to memorialize the stated reasons for sentence, as required pursuant to
18 U.S.C. § 3553(c)(2).

                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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