     12-66-cr
     United States v. Flanders

                          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 Marshal United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of February, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                              Circuit Judge,
10                LAURA TAYLOR SWAIN,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Plaintiff-Appellee,
16
17                    -v.-                                               12-66-cr
18
19       VAUGHN FLANDERS,
20                Defendant-Appellant
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
                  Judge Laura Taylor Swain, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:             COLLEEN P. CASSIDY, Federal
 2                              Defenders of New York, New York,
 3                              New York.
 4
 5   FOR APPELLEES:             JONATHAN COHEN, KATHERINE POLK
 6                              FAILLA, for Preet Bharara,
 7                              United States Attorney for the
 8                              Southern District of New York,
 9                              New York, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Castel, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Flanders appeals from a judgment of the United States
19   District Court for the Southern District of New York
20   (Castel, J.), sentencing Flanders to twenty-four months’
21   imprisonment and six months’ supervised release. We assume
22   the parties’ familiarity with the underlying facts, the
23   procedural history, and the issues presented for review.
24
25        We review a district court’s sentence for
26   reasonableness. E.g., United States v. Gonzalez, 529 F.3d
27   94, 97 (2d Cir. 2008). This includes sentences imposed for
28   violations of supervised release. Id. When, as here, a
29   defendant does not allege procedural error, we “consider the
30   substantive reasonableness of the sentence imposed under an
31   abuse-of-discretion standard.” Gall v. United States, 552
32   U.S. 38, 51 (2007).
33
34        1.  The applicable range for sentencing under the U.S.
35   Sentencing Commission Guidelines Manual (“Guidelines”) was
36   three to nine months’ imprisonment. Comment 3 of section
37   7B1.4 of the Guidelines states, “In the case of a Grade C
38   violation that is associated with a high risk of new
39   felonious conduct, . . . an upward departure may be
40   warranted.” The district court properly found that
41   Flanders’s conduct was associated with a high risk of new
42   felonies. Since being released from prison, Flanders
43   repeatedly engaged in lewd exposure and touching of others
44   in public places. Moreover, the treatment program in which
45   he was enrolled decided that it could no longer treat him
46   because he was not complying with its rules.
47

                                  2
 1        2.  Flanders argues that the sentence was almost three
 2   times longer than the top of the Guidelines’ range. The
 3   Second Circuit, following the Supreme Court, has stated that
 4   courts should not use “mathematical formulas to gauge
 5   substantive unreasonableness.” Verkhoglyad, 516 F.3d at 134
 6   (citing Gall, 552 U.S. at 47). In Verkhoglyad, this Court
 7   affirmed a sentence for a violation of supervised release
 8   that was more than five times the upper limit of the
 9   Guidelines’ five-to-eleven month term. 516 F.3d at 134.
10   Flanders’s twenty-four month sentence is only a year and
11   three months more than the top end of the Guidelines range.
12
13        3.  The district court’s non-Guidelines sentence
14   relied principally on protection of the public from harm.
15   “[W]e have never held that a district court’s particular
16   reliance on one factor to justify departing from the
17   Guidelines is suggestive of unreasonableness; we have only
18   said that ‘unjustified reliance upon any one factor’
19   suggests unreasonableness.” United States v. Pope, 554 F.3d
20   240, 246 (2d Cir. 2009) (quoting United States v.
21   Rattoballi, 452 F.3d 127, 137 (2d Cir. 2006)). Such
22   reliance here was justified, as Flanders’s repeated conduct
23   was clearly harmful to the public.
24
25        For the foregoing reasons, and finding no merit in
26   Flanders’s other arguments, we hereby AFFIRM the judgment of
27   the district court.
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31
32




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