     10-2993-cr
     United States v. Mims

                          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 29th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-2993-cr
17
18       TROY MOODY, KISASI GREEN,
19                Defendants,
20
21       TYLON MIMS,
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:                        Lawrence D. Gerzog, Law Offices
26                                             of Lawrence D. Gerzog, New York,
27                                             NY.
28

                                                  1
 1   FOR APPELLEE:              David E. Novick, Robert M.
 2                              Spector, for David B. Fein,
 3                              United States Attorney for the
 4                              District of Connecticut,
 5                              Hartford, CT.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the District of Connecticut (Arterton, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Tylon Mims appeals from a judgment of conviction
15   entered on July 15, 2010 by the United States District Court
16   for the District of Connecticut (Arterton, J.) for bank
17   fraud in violation of 18 U.S.C. § 1344(1). We assume the
18   parties’ familiarity with the underlying facts, procedural
19   history, and issues presented for review.
20
21        Mims alleges violations of his Fifth Amendment right
22   and his right under Federal Rule of Criminal Procedure 43 to
23   be present at his sentencing when his lawyer requested and
24   was heard at a sidebar while Mims sat at counsel table. By
25   sitting silently in court while his attorney sought and
26   obtained a brief sidebar, Mims effectively waived his right
27   to be present. See United States v. Doe, 964 F.2d 157, 159
28   (2d Cir. 1992); see also Polizzi v. United States, 926 F.2d
29   1311, 1322-23 (2d Cir. 1991).
30
31        Mims argues that the district court failed to
32   adequately resolve Mims’s request for a downward departure.
33   A district court commits procedural error where it fails to
34   calculate the Guidelines range, makes a mistake in its
35   Guidelines calculation, treats the Guidelines as mandatory,
36   does not consider the factors enumerated at 18 U.S.C. §
37   3553(a), rests its sentence on a clearly erroneous finding
38   of fact, or fails to adequately explain its chosen sentence,
39   including explaining any deviations from the Guidelines.
40   See United States v. Cavera, 550 F.3d 180, 189-90 (2d Cir.
41   2008) (en banc). The transcript reflects that the court
42   fully articulated the bases for its sentence, including its
43   consideration of Mims’s argument for a downward departure.
44   In any event, Mims made no objection to the court’s
45   resolution of his motion for a downward departure, so we
46   review only for plain error. See United States v.


                                  2
 1   Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007).   Finding
 2   none, we affirm.
 3
 4        Finding no merit in Mims’s remaining arguments, we
 5   hereby AFFIRM the judgment of the district court.
 6
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




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