     12-149-cr
     United States v. Green

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               12-149-cr
17
18       ANDRE GREEN,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        YUANCHUNG LEE, Federal Defenders
23                                             of New York, Inc., Appeals
24                                             Bureau, New York, New York.
25
26       FOR APPELLEES:                        MATTHEW L. SCHWARTZ (Andrew L.
27                                             Fish, on the brief) for Preet
28                                             Bharara, United States

                                                  1
 1                              Attorney’s Office for the
 2                              Southern District of New York,
 3                              New York, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Southern District of New York (Pauley, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Andre Green challenges his sentence for failing to
13   register as a sex offender, arguing that the district court
14   erred in denying him a three-level reduction under United
15   States Sentencing Guidelines § 2A3.5(b)(2)(B). We assume
16   the parties’ familiarity with the underlying facts, the
17   procedural history, and the issues presented for review.
18
19        A district court “commits procedural error where it
20   fails to calculate the Guidelines range (unless omission of
21   the calculation is justified), makes a mistake in its
22   Guidelines calculation, . . . treats the Guidelines as
23   mandatory[,] . . . does not consider the § 3553(a) factors,
24   or rests its sentence on a clearly erroneous finding of
25   fact.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir.
26   2008) (internal citations omitted). We review a district
27   court’s interpretation of the Sentencing Guidelines de novo
28   and its related findings of fact for clear error. United
29   States v. Cain, 671 F.3d 271, 301 (2d Cir. 2012).
30
31        The Guidelines provide for a three-level reduction if
32   the defendant “voluntarily . . . (B) attempted to register
33   but was prevented from registering by uncontrollable
34   circumstances and the defendant did not contribute to the
35   creation of those circumstances.” U.S.S.G. § 2A3.5(b)(2).
36   Green argues that the district court erroneously added a
37   requirement that, to be entitled to the reduction, he must
38   have “complied [with the statute] as soon as such
39   circumstances ceased to exist.” This language derives from
40   an affirmative defense outlined in 18 U.S.C. § 2250(b) and
41   is not a prerequisite to receiving a Guidelines reduction.
42
43        But the district court did not rest its decision on
44   Green’s inability to make out an affirmative defense under
45   18 U.S.C. § 2250(b). Instead, the court faithfully adhered
46   to the (less stringent) requirements set forth in §
47   2A3.5(b)(2)(B) and concluded that Green did not merit such a

                                  2
 1   reduction. The court found that while the uncontrollable
 2   circumstances claimed by Green may have prevented him from
 3   registering as a sex offender immediately upon entering New
 4   York, they did not impede his efforts throughout the
 5   subsequent year that he remained in the state before being
 6   arrested for this offense. This decision is well supported.
 7
 8        Finding no merit in Green’s remaining arguments, we
 9   hereby AFFIRM the judgment of the district court.
10
11
12                              FOR THE COURT:
13                              Catherine O’Hagan Wolfe, CLERK
14
15
16




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