13-0835-cr
United States v. Kalakowski



                 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 TO 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 14th day of April, two thousand fourteen.

PRESENT:   JOHN M. WALKER, JR.,
           DENNY CHIN,
           CHRISTOPHER F. DRONEY,
                     Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                       -v-                            13-0835-cr

STEPHEN KALAKOWSKI,
                       Defendant-Appellant.

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FOR APPELLEE:                     Emily E. Berger and Burton T. Ryan,
                                  Jr., Assistant United States
                                  Attorneys, for Loretta E. Lynch,
                                  United States Attorney for the
                                  Eastern District of New York,
                                  Brooklyn, New York.

FOR DEFENDANT-APPELLANT:          Yuanchung Lee, Assistant Federal
                                  Public Defender, Federal Defenders
                                  of New York, Inc., New York, New
                                  York.

           Appeal from the United States District Court for the

Eastern District of New York (Platt, J.).
          UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

          Defendant-appellant Stephen Kalakowski appeals from a

judgment entered on February 26, 2013.   After the district court

(Platt, J.) found that Kalakowski violated his terms of

supervised release by committing new criminal conduct, i.e.,

state offenses including rape, burglary, and false imprisonment,

the district court revoked Kalakowski's supervised release and

sentenced him to 60 months' imprisonment.    Kalakowski challenges

this sentence on both procedural and substantive grounds.    We

assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.
A.   Procedural Reasonableness

          Kalakowski first argues that the district court

violated 18 U.S.C. § 3553(c) by failing to state "any reasons for

imposing the maximum possible sentence."    Appellant Br. at 18.

We disagree.

          A district court procedurally errs when it fails to

consider the relevant statutory factors or "adequately to explain

its chosen sentence."   United States v. Cavera, 550 F.3d 180, 190

(2d Cir. 2008); see also Gall v. United States, 552 U.S. 38, 49-

50 (2007).   Unless the record suggests otherwise, however, "we

presume 'that a sentencing judge has faithfully discharged [his]

duty to consider the statutory factors.'"    United States v.
Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (quoting United

States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006)).    Moreover,

"[s]ection 3553(c) requires no specific formulas or

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incantations," and "[w]here . . . the sentence concerns a

violation of supervised release and the ultimate sentence is

within the recommended range, compliance with the statutory

requirements can be minimal."    United States v. Cassesse, 685

F.3d 186, 192 (2d Cir. 2012).

          The district court revoked Kalakowski's supervised

release and sentenced him to five years' incarceration, the

statutory maximum, as recommended by the Probation Department in

its violation petition.   See 18 U.S.C. § 3583(e).   At the
beginning of sentencing, the district court acknowledged that it

received defense counsel's two letters requesting a lower term of

incarceration than that recommended by the Probation Department,

followed by a period of supervised release.    Moreover, at the

hearing, defense counsel "reiterate[d]" her request.    App. at 55.

Before it imposed sentence, the district court explained that it

had "been over [the] file with the probation department[,] . . .

read their report[,] . . . [and] had a number of conversations

with the probation officer."    Id. at 56.   The district court also
heard from the victim.    Based on this information, the district

court concluded that "the only appropriate sentence [ ] [wa]s to

revoke any supervised release term and impose a term of

incarceration of five years."    Id.

          Because the record does not suggest otherwise, we

conclude that the district court properly considered the

statutory factors.   Fernandez, 443 F.3d at 30.   Moreover,

although we acknowledge that the district court's explanation for

imposing the maximum period of incarceration was brief, "the


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sentence concern[ed] a violation of supervised release              and

. . . [wa]s within the recommended range."      Cassesse, 685 F.3d at

192.    Accordingly, we hold that Kalakowski's sentence was

procedurally reasonable.
B.     Substantive Reasonableness

            Kalakowski next argues that his 60-month sentence was

substantively unreasonable.    This challenge also fails.

            A sentence imposed by the district court is

substantively unreasonable only if it "cannot be located within

the range of permissible decisions."      Cavera, 550 F.3d at 189
(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.

2007)).    We will set aside sentencing decisions only in

"exceptional cases," id., as we will not substitute our judgment

for that of the district court, Fernandez, 443 F.3d at 27.

            Kalakowski's sentence was within the range of

reasonable sentences.    On appeal, Kalakowski argues that the

district court failed to consider that he suffers from serious

mental illness.    The district court was well within its

discretion, however, to focus on the seriousness of Kalakowski's

violations of supervised release, which included the rape of his

former girlfriend.    See United States v. Capanelli, 479 F.3d 163,
165 (2d Cir. 2007) ("[T]he weight given to any single factor 'is

a matter firmly committed to the discretion of the sentencing

judge and is beyond our review.'" (quoting Fernandez, 443 F.3d at

32)).    We therefore conclude that Kalakowski's sentence was

substantively reasonable.




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          We have considered Kalakowski's remaining arguments and

conclude they are without merit.   For the foregoing reasons, we
AFFIRM the judgment of the district court.


                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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