17-2317-cr
United States v. Kessler

                           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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 21st day of May, two thousand eighteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,*
                                 District Judge.
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UNITED STATES OF AMERICA,
                                                           Appellee,
                               v.                                              No. 17-2317-cr

ANDREW KESSLER,
                                             Defendant-Appellant.
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FOR APPELLANT:                                    Arkady Bukh, Bukh      Law    Firm,   PLLC,
                                                  Brooklyn, New York.

FOR APPELLEE:                                    Dominic Gentile, Daniel B. Tehrani, Assistant
                                                 United States Attorneys, for Geoffrey S.
                                                 Berman, United States Attorney for the
                                                 Southern District of New York, New York,
                                                 New York.



*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
       Appeal from a final judgment of the United States District Court for the Southern

District of New York (Kimba M. Wood, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on July 26, 2017, is AFFIRMED.

       Defendant Andrew Kessler stands convicted, based on his guilty plea, of theft of

government funds, see 18 U.S.C. § 641, arising from his fraudulent procurement of

$13,961 in unemployment insurance benefits from the New York State Department of

Labor while Kessler was, in fact, working as a federal correctional officer.       He here

appeals the resulting six-month, within-Guidelines prison sentence as procedurally and

substantively unreasonable.    In reviewing a sentence for reasonableness, we employ “a

particularly deferential form of abuse-of-discretion review.” United States v. Cavera,

550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc). In doing so here, we assume the

parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Procedural Error

       A district court commits procedural error where it fails to consider the factors

enumerated in 18 U.S.C. § 3553(a), rests its sentence on a clearly erroneous finding of

fact, or fails adequately to explain its chosen sentence. See id. at 190. Kessler urges us

to identify procedural error in the district court’s failure (1) to explain its sentence and

(2) to consider (a) the need to avoid unwarranted sentence disparities pursuant to 18

U.S.C. § 3553(a)(6), and (b) the cost of incarceration.   We need not resolve the parties’



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dispute over whether a plain error standard of review applies to these challenges because

we identify no procedural error at all.

       The record refutes Kessler’s argument that the district court failed to explain its

reasons for imposing a sentence at the top end of the zero-to-six-months’ Guidelines

range. The district court explained that Kessler’s crime was a “serious one” because, for

more than a year, he regularly submitted false certifications in which he lied about his

employment status.     App’x 36.     The fact that Kessler perpetrated that fraud while

employed as a federal corrections officer and using government computers was, in the

district court’s view, especially “brazen.” Id. That was sufficient to explain why the

district court thought a sentence at the high end of the Guidelines range was warranted.

See Rita v. United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge decides simply to

apply the Guidelines to a particular case, doing so will not necessarily require lengthy

explanation.”); accord United States v. Cavera, 550 F.3d at 193 (holding that for

within-Guidelines sentences, “a brief statement of reasons will generally suffice where

the parties have addressed only ‘straightforward, conceptually simple arguments’ to the

sentencing judge” (quoting 551 U.S. at 356)).

       Nor can Kessler demonstrate procedural error in the district court’s failure to

reference the need to avoid sentencing disparities. See United States v. Villafuerte, 502

F.3d 204, 210 (2d Cir. 2007) (“[W]e do not insist that the district court . . . discuss every

§ 3553(a) factor individually.”); United States v. Fernandez, 443 F.3d 19, 29 (2d Cir.

2006) (“We have imposed no . . . requirement that a sentencing judge precisely identify

either the factors set forth in § 3553(a) or specific arguments bearing on the

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implementation of those factors in order to comply with her duty to consider all the

§ 3553(a) factors.” (emphasis in original)), abrogated on other grounds by Rita v. United

States, 551 U.S. 338.

       United States v. Merced, 603 F.3d 203 (3d Cir. 2010), relied on by Kessler, is not

to the contrary and, in any event, cannot supersede this court’s own controlling precedent.

In Merced, the Third Circuit identified error in the district court’s failure to consider the

need to avoid unwarranted sentencing disparities “in the face of a colorable

argument”—there by the government—“that an outside-the-Guidelines sentence will

create a risk of such disparities.” Id. at 222. Here, Kessler acknowledges that he never

raised a disparity concern in the district court, much less argued unwarranted disparity in

a within-Guidelines sentence. As this court has observed, “[w]hen an argument is not

raised during a sentencing proceeding, the failure of the sentencing judge to address that

argument explicitly on the record does not, without more, demonstrate a failure of

consideration by the judge.” United States v. Fernandez, 443 F.3d at 29 (emphasis

omitted). Insofar as Kessler argues that he satisfies the requisite “more” identified in

Fernandez by showing that his sentence is, in fact, unreasonably disparate, we reject that

argument in addressing his substantive challenge.

       Precedent also defeats Kessler’s cost-of-incarceration argument.         See United

States v. Park, 758 F.3d 193, 198 (2d Cir. 2014) (holding that “statute [does not] permit

the sentencing court to balance the cost of incarceration against the sentencing goals

enumerated in § 3553(a)”).

       Thus, Kessler fails to show any procedural error in his sentence.

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2.     Substantive Unreasonableness

      In challenging his six-month sentence as substantively unreasonable, Kessler bears

a heavy burden because we will set aside a sentence on that ground “only in exceptional

cases” where the challenged sentence cannot be located within the wide range of

permissible decisions available to the district court, United States v. Cavera, 550 F.3d at

189, that is, where “the sentence imposed was shockingly high, shockingly low, or

otherwise unsupportable as a matter of law,” United States v. Rigas, 583 F.3d 108, 123

(2d Cir. 2009). That is not this case.

       While we do not presume that Kessler’s sentence is substantively reasonable

simply because it falls within his Guidelines range, “we recognize that in the

overwhelming majority of cases, a Guidelines sentence will fall comfortably within the

broad range of sentences that would be reasonable in the particular circumstances.”

United States v. Ryan, 806 F.3d 691, 695 (2d Cir. 2015) (internal quotation marks

omitted).   No different conclusion is warranted here.       The district court carefully

considered the various mitigating factors presented by Kessler, including testaments to

his character, his law-abiding history, his family situation, and the “stress” he reported

experiencing as a correctional officer. Nevertheless, it determined that these factors

were outweighed by the “severity,” indeed the “brazen[ness]” of his crime: defrauding a

state unemployment program using federal resources while employed as a federal

correctional officer. App’x 36. On this record, we cannot conclude that a six-month

Guidelines sentence falls outside the “broad range” of sentences available to the district



                                            5
court so as to be considered substantively unreasonable. United States v. Jones, 531

F.3d 163, 174 (2d Cir. 2008).

       In urging otherwise, Kessler asserts unwarranted sentencing disparity, pointing to

thirteen defendants in the Southern District of New York who were sentenced more

leniently than he following § 641 convictions.    The argument fails because none of the

comparators presented the aggravating factor of particular concern to the district court

here: a federal employee charged with upholding the law using government property

repeatedly to violate the law. See United States v. Fernandez, 443 F.3d at 32 (rejecting

disparity challenge where there was no showing that defendants were “similarly

situated”); see also United States v. Coppola, 671 F.3d 220, 254 (2d Cir. 2012) (holding

that even though defendant and his comparators were “convicted for racketeering and

other crimes related to the Gambino family’s control over parts of the New York

waterfront, that is not enough by itself to compel a conclusion that they were similarly

situated . . . in the many respects that can inform a sentence”). Thus, Kessler’s disparity

challenge fails.

       Nor can Kessler fault the weight assigned to various mitigating factors to establish

the substantive unreasonableness of his sentence.     The record shows that the district

court considered these factors, but deemed them outweighed by the seriousness of the

crime and the identified aggravating circumstances.       Where, as here, “the ultimate

sentence is reasonable and the sentencing judge did not commit procedural error in

imposing that sentence, we will not second guess the weight (or lack thereof) that the

judge accorded to a given factor or to a specific argument made pursuant to that factor.”

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See United States v. Perez-Frias, 636 F.3d 39, 42–43 (2d Cir. 2011) (internal quotation

marks omitted); see United States v. Coppola, 671 F.3d at 254 (holding that defendant

“may disagree with how the court weighed the seriousness of his criminal conduct as

against [mitigating factors], but he can hardly show that his criminal conduct was not

sufficiently severe to bear the weight assigned it under the totality of the circumstances”).

       Thus, Kessler fails to show that his six-month sentence is substantively

unreasonable.

       We have considered Kessler’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of conviction is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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