 10-5039-cr
 USA v. Scott

                             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
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 24th day
 of January, two thousand twelve.

 Present:
                ROBERT A. KATZMANN,
                GERARD E. LYNCH,
                           Circuit Judges,
                LEWIS A. KAPLAN,
                           District Judge.*

 ______________________________________________________

 UNITED STATES OF AMERICA,

                Appellee,

                       v.                                        No. 10-5039-cr

 CLINTON HILL, AKA Tupac, AKA Clint,REDDELL SMITH, AKA Renny,
 JERMAINE BARNUM, AKA Bones, DARQUAN WALKER, AKA Quany,
 ARTHUR BULLOCK, AKA Art, RALPH WALKER, AKA Eaz,
 SCHIQUAN HARRISON, AKA S, JERRY SLAUGHTER, AKA Hood,
 KEITH HORTON, AKA Kizza, BRYAN SHEPARD, AKA Gadget,
 QUASHAWN BLUNT, AKA Qua,
         Defendants,



         *
         The Honorable Lewis A. Kaplan, United States District Judge for the Southern District
 of New York, sitting by designation.
MARQUISE SCOTT, AKA Sem,

         Defendant-Appellant.
______________________________________________________

For Defendant-Appellant:                  Jarrod W. Smith, Jarrod W. Smith, Esq., P.L.L.C.,
                                          Jordan, N.Y.

For Appellee:                             John M. Katko, Elizabeth S. Riker, Assistant United
                                          States Attorneys, of counsel, for Richard S. Hartunian,
                                          United States Attorney for the Northern District of New
                                          York, Syracuse, N.Y.


        Appeal from the United States District Court for the Northern District of New York
(Scullin, Jr., J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Marquise Scott appeals from a December 2, 2010 judgment of

conviction entered by the United States District Court for the Northern District of New York

(Scullin, Jr., J.). Following a guilty plea, Scott was convicted of conspiring to engage in a

pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). On December 2, 2010, Scott

was sentenced to 125 months’ imprisonment. On appeal, Scott argues that the district court’s

sentence is procedurally unreasonable because his incarceration in state prison should have been

credited towards his federal sentence. Specifically, Scott contends (1) that the district court

erred in not properly considering and applying U.S.S.G. § 5G1.3(b) by characterizing Scott’s

imprisonment “discharged” under the language of the statute and/or (2) failing to depart

downward pursuant to U.S.S.G. § 5K2.23. We presume the parties’ familiarity with the facts

and procedural history of this case.




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       We review a district court’s sentence for “reasonableness,” “which is ‘akin to review for

abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds

of allowable discretion, committed an error of law in the course of exercising discretion, or made

a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)

(per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). A district

court commits “procedural error where it fails to calculate the Guidelines range (unless omission

of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the

Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a

clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United

States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (internal citations omitted). Although we

normally review sentencing challenges based on procedural unreasonableness for abuse of

discretion, “rigorous plain error analysis is appropriate for . . . unpreserved errors.” United

States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007).

       Scott first contends that the district court erred in failing to credit the defendant with time

served on a state term of imprisonment pursuant to U.S.S.G. § 5G1.3(b). Because Scott did not

raise this issue below, we review this claim for plain error. Villafuerte, 502 F.3d at 208. Section

5G1.3(b) of the Sentencing Guidelines provides:

       If subsection (a) does not apply, and a term of imprisonment resulted from another
       offense that is relevant conduct to the instant offense of conviction . . . and that was the
       basis for increase in the offense level for the instant offense under Chapter Two (Offense
       Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be
       imposed as follows:

       (1) the court shall adjust the sentence for any period of imprisonment already served on
       the undischarged term of imprisonment if the court determines that such period of
       imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and


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       (2) the sentence for the instant offense shall be imposed to run concurrently to the
       remainder of the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b).

       In this case, Scott was not incarcerated at the time of his sentencing. Rather, he had been

released from prison and has commenced serving a term of post-release supervision. While

Scott was incarcerated when he pled guilty, the relevant time for consideration of § 5G1.3 is the

date of sentencing. See United States v. Labeille-Soto, 163 F.3d 93, 99 (2d Cir. 1998) (“If the

defendant has completed his state prison term before the federal sentence is imposed, § 5G1.3

does not apply, and his federal prison term cannot be imposed concurrently.”).

       While not technically incarcerated at the time of his sentencing, Scott nonetheless argues

that his term of term of imprisonment was not “discharged” because New York law defines

parole as a part of the sentence of imprisonment. See New York Penal Law § 70.40(1)(a)

(“Release on parole shall be in the discretion of the state board of parole, and such person shall

continue service of his or her sentence or sentences while on parole, in accordance with and

subject to the provisions of the executive law and the correction law.”). In advancing this

argument, Scott largely relies upon the Eighth Circuit’s decision in United States v. French, 46

F.3d 710, 717 (8th Cir. 1995), which held that because South Dakota law defines parole as

confinement in the legal custody of the Department of Corrections, a defendant on parole was

still serving an undischarged term of imprisonment for purposes of § 5G1.3(b).

       We cannot conclude that the district court committed plain error, for at least two reasons.

First, this Court has never adopted the French rule, and, as Scott acknowledges, the majority of

circuits that have addressed the rule have held that as a matter of uniform federal law a sentence

is discharged once the defendant is no longer in prison. See United States v. Cruz, 595 F.3d 744,

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745 (7th Cir. 2010) (holding that “although [the defendant] was paroled rather than released

unconditionally, his state sentence was ‘discharged’ for purposes of deciding whether the federal

judge could impose a concurrent sentence”); Prewitt v. United States, 83 F.3d 812, 817 (7th Cir.

1996) (holding that because the defendant “was not imprisoned —incarcerated in a penal

institution —when he was sentenced[,] . . . he was not subject to an ‘undischarged term of

imprisonment’ and could not invoke § 5G1.3”); United States v. Ramirez, 252 F.3d 516, 519 (1st

Cir. 2001) (holding that “the concurrent sentencing requirement of § 5G1.3(b) . . . is only

triggered when there is an undischarged term of imprisonment at the time of sentencing”);

United States v. Cofske, 157 F.3d 1, 1 (1st Cir. 1998) (per curiam) (“For U.S.S.G. § 5G1.3

purposes, an undischarged term of probation is not an ‘undischarged term of imprisonment.’”);

see also United States v. Jones, 107 F.3d 1147, 1165 (6th Cir. 1997) (holding that the district

court erred by treating the defendant’s time spent in home detention as a “sentence of

imprisonment” under § 4A1.1(a) of the Sentencing Guidelines). Second, even if we were to look

to state law as Scott urges, Scott does not appear to have been on parole at the time of his federal

sentence. Rather, as he also acknowledges, he had been sentenced in state court to a determinate

two-year prison sentence, which had already expired, and was serving a one-year term of “post-

release supervision.” See N.Y. Penal Law § 70.45. In other words, he had not been released

from prison conditionally before the expiration of his term of imprisonment, but rather had

completed his jail sentence and was now serving a separate sentence analogous to the federal

supervised release or to a sentence of probation. Because the district court’s conclusion that a

“term of imprisonment” is “discharged” within the meaning of § 5G1.3(b) when the prisoner is

released from incarceration is both reasonable and supported by substantial authority, and


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because it is not clear t hat Scott would benefit from the contrary rule that he espouses on appeal,

we cannot say that the district court committed plain error in its calculation of the applicable

sentencing guideline range.

       Scott then contends that even if his state prison sentence was discharged pursuant to §

5G1.3, the district court should have applied § 5K2.23, which provides for a downward

departure as a result of a discharged term of imprisonment:

       A downward departure may be appropriate if the defendant has (1) completed serving a
       term of imprisonment; and (2) subsection (b) of § 5G1.3 (Imposition of a Sentence on a
       Defendant Subject to Undischarged Term of Imprisonment) would have provided an
       adjustment had that completed term of imprisonment been undischarged at the time of
       sentencing for the instant offense. Any such departure should be fashioned to achieve a
       reasonable punishment for the instant offense.

U.S.S.G. § 5K2.23.

       A refusal to depart downward from the Guidelines is generally not appealable. See

United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per curiam). “[R]eview of such a

denial will be available only ‘when a sentencing court misapprehended the scope of its authority

to depart or the sentence was otherwise illegal.’” Id. (quoting United States v. Valdez, 426 F.3d

178, 184 (2d Cir. 2005)). Here, because there is no evidence from the record, and Scott does not

point to any reason to believe, that the district court misapprehended its authority to depart

downward from the Guidelines, the district court’s failure to depart under § 5K2.23 is not

reviewable.

       We have considered Scott’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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