     15-3997
     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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of December, two thousand sixteen.
 5
 6       PRESENT: RALPH K. WINTER, JR.,
 7                DENNIS JACOBS,
 8                JOSÉ A. CABRANES,
 9                              Circuit Judges,
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-3997
16
17       RICKY KESSLER,
18                Defendant-Appellant.
19
20       - - - - - - - - - - - - - - - - - - - -X
21
22
23       FOR APPELLANT:                        FLORIAN MIEDEL, Miedel &
24                                             Mysliwiec, LLP, New York, New
25                                             York.
26
27       FOR APPELLEE:                         IAN C. RICHARDSON, for Robert L.
28                                             Capers, United States Attorney

                                                  1
 1                                 for the Eastern District of New
 2                                 York.
 3
 4       Appeal from a judgment of the United States District

 5   Court for the Eastern District of New York (Irizarry, C.J.).

 6       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

 7   AND DECREED that the judgment of the district court be

 8   AFFIRMED.

 9       Ricky Kessler appeals from the judgment of the United

10   States District Court for the Eastern District of New York

11   (Irizzary, C.J.) imposing a ten-month sentence after his

12   plea to a violation of his conditions of supervised release.

13   We assume the parties’ familiarity with the underlying

14   facts, the procedural history, and the issues presented for

15   review.   We affirm because the district court’s within-

16   Guidelines sentence was neither procedurally nor

17   substantively unreasonable.

18       Kessler did not preserve his procedural objections to

19   the sentence, and we therefore review them for plain error.

20   United States v. Aldeen, 792 F.3d 247, 253 (2d Cir. 2015),

21   as amended (July 22, 2015).    Kessler’s first procedural

22   objection is that the district court failed to adequately

23   explain the reasons for his sentence.    Although the district

24   court must “state in open court the reasons for its

25   imposition of the particular sentence,” 18 U.S.C. §


                                    2
 1   3553(c), it need not individually walk through all the

 2   sentencing factors of § 3553(a).   United States v.

 3   Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007).    “Where, as

 4   here, the sentence concerns a violation of supervised

 5   release and the ultimate sentence is within the recommended

 6   range, compliance with the statutory requirements can be

 7   minimal.”   United States v. Cassesse, 685 F.3d 186, 192 (2d

 8   Cir. 2012).   The district court acknowledged its need to

 9   consider the § 3553(a) factors and explained the reason for

10   its sentence in detail.    There was no plain error.

11       Second, Kessler argues that the district court

12   sentenced him under the mistaken belief that he had failed

13   to seek employment.   Even if the district court was wrong to

14   blame Kessler for failing to seek employment (and it is not

15   clear that it was), that mistake was only a small part of

16   the sentencing colloquy, and Kessler did not object to it at

17   the time.   It is not an error that “seriously affected the

18   fairness, integrity, or public reputation of the judicial

19   proceedings,” and it is therefore not a plain error that

20   requires resentencing.    Villafuerte 502 F.3d at 209

21   (internal quotations omitted).

22       Third, Kessler argues that the district court sentenced

23   him under the mistaken belief that he owed restitution.

24   However, Kessler advised the district court of this mistake

                                    3
 1   before the imposition of the sentence, and the district

 2   court thanked him for the correction.     This too is not plain

 3   error.

 4       As to the length of the sentence, Kessler argues that

 5   his within-Guidelines sentence of ten months was “so

 6   shockingly high . . . or otherwise unsupportable as a matter

 7   of law that allowing [it] to stand would damage the

 8   administration of justice.”    Aldeen, 792 F.3d at 255

 9   (internal quotations omitted).     Kessler’s sentence was well

10   “within the range of permissible decisions” and was

11   therefore substantively reasonable.     Id.

12       For the foregoing reasons, and finding no merit in

13   Kessler’s other arguments, we hereby AFFIRM the judgment of

14   the district court.

15
16
17                                 FOR THE COURT:
18                                 CATHERINE O’HAGAN WOLFE, CLERK
19




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