     13-799-cr
     USA v. Dodge

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 10th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                SUSAN L. CARNEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-799-cr
16
17       KEVIN DODGE,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        E.M. ALLEN, Stetler, Allen &
22                                             Kampmann, Burlington, Vermont.
23
24       FOR APPELLEES:                        CRAIG S. NOLAN, Assistant United
25                                             States Attorney (Gregory L.
26                                             Waples, Assistant United States
27                                             Attorney, on the brief), for
28                                             Tristram J. Coffin, United
29                                             States Attorney for the District
30                                             of Vermont, Burlington, Vermont.

                                                  1
 1        Appeal from a sentence of the United States District
 2   Court for the District of Vermont (Sessions, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Appellant Kevin Dodge appeals from a judgment of
 9   conviction entered on February 25, 2013, following his
10   guilty plea to conspiracy to manufacture methamphetamine, in
11   violation of 21 U.S.C. §§ 846, 841(a)(1). We assume the
12   parties’ familiarity with the underlying facts, the
13   procedural history, and the issues presented for review.
14
15        Dodge requested a non-Guidelines sentence of time
16   served (followed by a short period of supervised release),
17   on the theory that his (lengthy) criminal history and his
18   (sustained) involvement in the charged conspiracy were
19   driven by his addiction to opiates and methamphetamine, and
20   that, since his arrest, he had recovered from addiction and
21   performed commendable community work. Dodge contended that
22   no further prison time was necessary to serve the goals of
23   the sentencing process.
24
25        The District Court concluded that the seriousness of
26   the offense warranted a significant prison term, but
27   expressly took into account Dodge’s progress toward
28   rehabilitation. Accordingly, the District Court granted
29   Dodge’s motions for horizontal and downward departures,
30   resulting in a reduction of the Sentencing Guidelines range
31   from 57-71 to 33-41 months. It then sentenced Dodge to 33
32   months’ imprisonment, to be followed by a three year term of
33   supervised release.
34
35        Dodge now appeals on the grounds that his sentence is
36   procedurally and substantively unreasonable.
37
38        We review criminal sentences for reasonableness. This
39   is a deferential standard of review. See Gall v. United
40   States, 552 U.S. 38, 51 (2007) (“The fact that the appellate
41   court might reasonably have concluded that a different
42   sentence was appropriate is insufficient to justify reversal
43   of the district court.”). “Reasonableness review requires
44   an examination of the length of the sentence (substantive

                                  2
 1   reasonableness) as well as the procedure employed in
 2   arriving at the sentence (procedural reasonableness).”
 3   United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
 4   The standard of review for both inquiries is abuse of
 5   discretion. United States v. Verkhoglyad, 516 F.3d 122, 127
 6   (2d Cir. 2008).
 7
 8   A.   Procedural Challenge.
 9
10        “A district court commits procedural error where it
11   fails to calculate (or improperly calculates) the Sentencing
12   Guidelines range, treats the Sentencing Guidelines as
13   mandatory, fails to consider the [18 U.S.C.] § 3553(a)
14   factors, selects a sentence based on clearly erroneous
15   facts, or fails adequately to explain the chosen sentence.”
16   United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)
17   (citing Gall, 552 U.S. at 51).
18
19        Dodge first argues that his sentence is procedurally
20   unreasonable because the District Court treated the
21   Sentencing Guidelines as mandatory. At sentencing, defense
22   counsel argued that the length of time Dodge participated in
23   the conspiracy should not be considered an aggravating
24   factor, driven as it was by his addiction to
25   methamphetamine. In response, the District Court emphasized
26   that defense counsel’s argument was contrary to the policy
27   adopted by the Sentencing Guidelines that “the longer a
28   person is involved in a conspiracy, the more drugs they
29   actually participate in distributing . . . , the higher the
30   penalty.” Tr. of Sentencing at 32, Feb. 25, 2013.
31
32        Beyond this (accurate) statement of the law, there is
33   no indication that the District Court considered the
34   Guidelines to be mandatory. The District Court simply did
35   not accept that Dodge’s addiction should absolve him of
36   culpability for his sustained and substantial involvement in
37   the conspiracy. It is nonetheless clear from the record
38   that the court took seriously the impact of Dodge’s
39   addiction on his involvement and overall guilt. See id. at
40   32-35 (noting that although Dodge was “clearly aware of the
41   full extent of the operation[,]” which involved the
42   manufacture of “the worst or close to the worst drug that
43   exists,” Dodge’s “severe addict[ion]” and “miraculous”
44   rehabilitation warranted a downward “depart[ure] to a

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 1   significant sentence but one that would get him into
 2   extended drug treatment and allow him the opportunity of
 3   gradually reducing his sentence by continuing to do well in
 4   treatment”).
 5
 6        Dodge also contends that the District Court engaged in
 7   impermissible multiple-counting in the § 3553(a) analysis.
 8   Specifically, Dodge claims that the District Court “counted
 9   as separate factors the various ways in which it concluded
10   that [] Dodge was more involved in the conspiracy than most
11   others.” Appellant’s Br. 11.
12
13        “Impermissible double counting occurs when one part of
14   the [G]uidelines is applied to increase a defendant’s
15   sentence to reflect the kind of harm that has already been
16   fully accounted for by another part of the [G]uidelines.”
17   United States v. Volpe, 224 F.3d 72, 76 (2d Cir. 2000)
18   (internal quotation marks omitted). It does not limit the
19   weighing of § 3553(a) factors. The District Court
20   considered various distinct facts, including Dodge’s
21   addiction, to assess the overall level of Dodge’s
22   involvement in the conspiracy, and then weighed that
23   involvement against applicable mitigating factors. And
24   after doing so, the Court granted horizontal and downward
25   departures and selected the very bottom end of the
26   (adjusted) Guidelines range. Dodge has failed to point to
27   any procedural error, much less abuse of discretion, by the
28   District Court at sentencing.
29
30   B.   Substantive Challenge.
31
32        “In reviewing [a sentence] for substantive
33   reasonableness, we consider the totality of the
34   circumstances, and reverse only in exceptional cases where
35   the trial court’s decision cannot be located within the
36   range of permissible decisions[.]” United States v. Mason,
37   692 F.3d 178, 181 (2d Cir. 2012) (internal quotation marks
38   and citation omitted). The standard “provide[s] a backstop
39   for those few cases that, although procedurally correct,
40   would nonetheless damage the administration of justice
41   because the sentence imposed was shockingly high, shockingly
42   low, or otherwise unsupportable as a matter of law.” United
43   States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). “[W]hen
44   conducting substantive review, we [are careful to give] due

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 1   deference to the sentencing judge’s exercise of discretion,
 2   [] bearing in mind the institutional advantages of district
 3   courts.” United States v. Cavera, 550 F.3d 180, 190 (2d
 4   Cir. 2008).
 5
 6        Dodge argues that his sentence is substantively
 7   unreasonable because it “punishes untreated addiction in the
 8   same manner that it would punish predatory greed.”
 9   Appellant’s Br. 7. The record clearly is altogether
10   contrary. The District Court recognized that addiction
11   fueled much of Dodge’s extensive criminal history and his
12   involvement in the charged conspiracy. See Tr. of
13   Sentencing at 33, 35. Dodge’s “extraordinary
14   rehabilitation” from his “severe addict[ion]” inclined the
15   District Court to grant Dodge’s motions for horizontal and
16   vertical departures, resulting in a reduction of the
17   Guidelines sentencing range from 57-71 to 33-41 months.1
18   Id. at 33-35.
19
20        Dodge’s 33-month sentence is undoubtedly significant,
21   but it is at the bottom of a Guidelines range arrived at
22   after significant horizontal and downward departures for
23   acceptance of responsibility and overrepresentation of
24   criminal history. Id. at 35. Although there is no
25   presumption that a sentence within the Guidelines range is
26   reasonable, we have recognized “that in the overwhelming
27   majority of cases, a Guidelines sentence will fall
28   comfortably within the broad range of sentences that would
29   be reasonable in the particular circumstances.” United
30   States v. Fernandez, 443 F.3d 19, 27 (2006). Based on our
31   review of the record, and taking into account Dodge’s
32   lengthy criminal history and his substantial involvement in
33   a conspiracy to produce and distribute an extremely
34   addictive and dangerous drug, we cannot conclude that the
35   District Court’s 33-month sentence is substantively
36   unreasonable.

         1
              The District Court also emphasized “the lack of
     violence in [Dodge’s] criminal record” and “recommend[ed]
     that [Dodge] be placed at Fort Dix, which has a 500-hour
     program[.]” Tr. of Sentencing at 37. The 500-hour program
     is “a program of residential substance abuse treatment”
     that, if successfully completed, qualifies Dodge for a
     sentence reduction of up to 12 months. 18 U.S.C. § 3621(e).
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1        For the foregoing reasons, and finding no merit in
2   Dodge’s other arguments, we hereby AFFIRM the judgment of
3   the District Court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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