10-4567-cr
United States v. Williams


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                 AMENDED 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 United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of March, two thousand twelve.

PRESENT: AMALYA L. KEARSE
                 JOHN M. WALKER, JR.
                 GERARD E. LYNCH,
                                          Circuit Judges.
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UNITED STATES OF AMERICA,
                        Appellee,

                            v.                                            No. 10-4567-cr

GREGORY WILLIAMS,
                                         Defendant-Appellant.

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FOR APPELLANT:                   MICHAEL R. HASSE, New London, Connecticut.

FOR APPELLEE:                    DEBORAH R. SLATER (Robert M. Spector, on the brief),
                                 Assistant United States Attorneys, for David B. Fein, United
                                 States Attorney for the District of Connecticut, New Haven,
                                 Connecticut.


          Appeal from the United States District Court for the District of Connecticut

(Vanessa L. Bryant, J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       In 1998, defendant-appellant Gregory Williams pled guilty to two counts of

aggravated bank robbery in the United States District Court for the District of

Connecticut (Dominic J. Squatrito, J.) and was sentenced to 151 months in prison and

three years’ supervised release. After leaving prison, he admitted violating the terms of

his supervised release by, inter alia, possessing and using narcotics, and was sentenced

(Robert N. Chatigny, J.) to ninety days in prison and the resumption of his supervised

release. After fulfilling the second sentence, he again admitted violating the terms of

supervised release by committing third-degree robbery, to which he entered an Alford

plea of guilty in state court, and was returned to the district court (Vanessa L. Bryant, J.)

for a proceeding to determine the consequences of this violation. The district court

sentenced Williams to twenty-one months in prison, with no further federal supervised

release. Williams now challenges the procedural and substantive reasonableness of his

sentence, and argues – for the first time on appeal – that he did not receive due process

during the revocation proceedings before the district court.           Finding no merit to

Williams’s arguments, we affirm the judgment of the district court.1
       1
        After the case had been fully briefed on the merits, the government moved to
dismiss the appeal as moot, because Williams’s sentence has now been fully served. As
the government correctly notes, our usual presumption that a challenge to a criminal
conviction is not mooted by completion of the sentence imposed does not apply to
violations of probation, parole, or supervised release. See Spencer v. Kemna, 523 U.S. 1,
14 (1998); United States v. Probber, 170 F.3d 345, 348 (2d Cir. 1999). Rather, “an
individual challenging the revocation of his parole – and whose term of re-incarceration
has expired – bears the burden of demonstrating that some concrete and continuing injury
continues to flow from the fact of the revocation.” Id. Here, Williams remains detained
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       Our review of district court sentencing decisions encompasses review of

allegations of both procedural and substantive errors. See United States v. Cavera, 550

F.3d 180, 189 (2d Cir. 2008) (en banc). A district court “commits procedural error where

it . . . makes a mistake in its Guidelines calculation, . . . does not consider the § 3553(a)

factors, or rests its sentence on a clearly erroneous finding of fact.” Id. at 190 (internal

citations omitted); see also Gall v. United States, 552 U.S. 38, 51 (2007). We review

substantive challenges to a sentence under a “deferential abuse-of-discretion standard.”

Cavera, 550 F.3d at 189 (internal quotation marks omitted).

       Williams challenges his sentence on three interrelated bases: (1) that the district

court failed to weigh mitigating factors pursuant to 18 U.S.C. § 3553(a); (2) that the

sentence of incarceration was improperly based on the rehabilitative effects that a prison

term would have on Williams; and (3) that the sentence, although at the low end of the

advisory guidelines range of twenty-one to twenty-four months, was substantively

unreasonable.

       All of these arguments are unavailing.       First, although 18 U.S.C. § 3553(a)

instructs a sentencing judge to consider a number of factors, that obligation does not

require the judge to make explicit reference to each factor considered. See United States

pending adjudication of additional charges, which were filed while Williams was still
serving his 21-month sentence for violation of supervised release. Thus, whether
Williams will be credited with time served towards any eventual sentence in the pending
case will likely depend on whether he was serving a valid sentence on the supervised
release violation during the period of overlap between the present detention and the
supervised release sentence. Under these circumstances, we conclude that the supervised
release sentence, though expired, continues to present sufficient concrete consequences in
Williams’s ongoing criminal case to satisfy the case-or-controversy requirement. We
therefore deny the motion to dismiss and reach the merits of Williams’s appeal.
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v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006). In this case, the district court plainly

considered § 3553(a) sentencing factors that were applicable to Williams, as it considered

for example Williams’s personal history, the kinds of sentences available, and the

requirement that the sentence be sufficient, but not greater than necessary, to comply with

the statutory purposes of sentencing. And the court not only considered some of the

sentencing arguments that Williams now contends were ignored but appears to have

credited them: for example, his difficulties in complying with some of the requirements of

supervised release led the district court to conclude that, upon his release from prison,

Williams should no longer be subject to federal supervised release.

       Second, Williams argues that the district court improperly considered the

rehabilitative effects that a criminal sentence might have on him, in violation of 18 U.S.C.

§ 3582(a). See Tapia v. United States, 131 S. Ct. 2382 (2011). Assuming without

deciding that the rule of Tapia applies to sentences for violations of supervised release –

but see United States v. Anderson, 15 F.3d 278, 282 (2d Cir. 1994) (holding, over dissent

and before Tapia, that rehabilitation needs may be taken into account in connection with

supervised release sentences) – the district court did not violate the prohibition that

Williams cites. While the statute does provide that “imprisonment is not an appropriate

means of promoting correction and rehabilitation,” 18 U.S.C. § 3582(a), the district

court’s statement that Williams “has benefitted from incarceration” does not violate that

prohibition, as a mere reference to the past “benefits” of incarceration for a defendant

does not equate to the selection of a term of incarceration for the purposes of

rehabilitating that defendant. The cases where sentencing judges have violated the statute
                                             4
contrast sharply with the facts here. In several such cases, for example – some of them

cited by Williams – the defendant was given a longer sentence designed to facilitate

eligibility for a prison drug treatment program. See Tapia, 131 S. Ct. at 2385; United

States v. Manzella, 475 F.3d 152, 161 (3d Cir. 2007); In re Sealed Case, 573 F.3d 844,

851 (D.C. Cir. 2009). Nothing of the sort occurred here. The sentence was manifestly

the product of Williams’s repeated criminal conduct.

       Third, Williams argues that the length of his twenty-one-month sentence – which

was at the bottom of the guidelines range – is substantively unreasonable. He is incorrect.

Although we do not presume that a sentence at the bottom of a guidelines range is

inherently reasonable, Fernandez, 443 F.3d at 27, we also reverse such sentences only if

the district court “exceeded the bounds of allowable discretion,” United States v. Kane,

452 F.3d 140, 144 (2d Cir. 2006) (internal quotation marks omitted).                 In light of

Williams’s criminal history, his repeated violations of the terms of his supervised release,

and the complementary reduction of his sentence by the elimination of any further term of

federal supervised release, we cannot conclude that this sentence was outside the range of

appropriate discretion.

       Finally, Williams also argues, for the first time on appeal, that, because the First

and Second Amended Reports of Violation of Supervised Release were never docketed,

the district court violated his due process rights. Because Williams raises this argument

for the first time on appeal, we can reverse only if there is “(1) error, (2) that is plain, . . .

(3) that affects substantial rights[, and] (4) [that] seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461,
                                                5
467 (1997) (internal quotation marks and alterations omitted); see also United States v.

Aspinall, 389 F.3d 332, 342 (2d Cir. 2004), abrogated on other grounds by United States

v. Booker, 543 U.S. 220 (2005) (applying plain error review to claim of due process

violation during sentencing).

       Under this standard of review, Williams’s argument cannot prevail. The due

process requirements for a revocation proceeding have been codified at Fed. R. Crim. P.

32.1(b)(2), and focus, as relevant to this case, on the defendant’s right to “written notice

of the alleged violation.” Id. at (b)(2)(A). Williams does not dispute that he had notice of

the First and Second Amended Reports, which his counsel acknowledged having

discussed with the defendant during the revocation hearing.           Thus, even assuming

arguendo that the failure to docket and file the Amended Reports was error, it is not

“plain,” did not “affect[] substantial rights,” and does not “seriously affect[] the fairness,

integrity, or public reputation of judicial proceedings,” Johnson, 520 U.S. at 467, as

Williams received the notice guaranteed by statute.

       We have considered all of Williams’s contentions on this appeal and have found

them to be without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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