     17-2788-cr
     United States v. Bethea

                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

1    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
2    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
3    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
4    CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
5    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
6    “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
7    ANY PARTY NOT REPRESENTED BY COUNSEL.

 8          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 9   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
10   on the 6th day of September, two thousand eighteen.
11
12   PRESENT:
13              GERARD E. LYNCH,
14              SUSAN L. CARNEY,
15              CHRISTOPHER F. DRONEY,
16                          Circuit Judges.
17   _________________________________________
18
19   UNITED STATES OF AMERICA,
20
21                        Appellee,
22
23                                v.                                         No. 17-2788-cr
24
25   KYHEIM BETHEA,
26
27              Defendant-Appellant.
28   _________________________________________
29
30   FOR APPELLANT:                                     Philip L. Weinstein, Federal Defenders of
31                                                      New York, Inc., Appeals Bureau, New
32                                                      York, NY.
33
34   FOR APPELLEE:                                      Susan Corkery, Matthew Jacobs, Assistant
35                                                      United States Attorneys, for Richard P.
36                                                      Donoghue, United States Attorney for the
1                                                        Eastern District of New York, Brooklyn,
2                                                        NY.
3
4           Appeal from a judgment of the United States District Court for the Eastern District
5    of New York (Irizarry, C.J.).

6           UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
7    ADJUDGED, AND DECREED that the judgment entered on August 30, 2017, is
8    AFFIRMED.

9           Defendant-appellant Kyheim Bethea appeals the District Court’s judgment of
10   conviction, entered on August 30, 2017, sentencing him principally to a term of 140 months’
11   incarceration on two counts of conviction, a sentence above the applicable range under the
12   United States Sentencing Guidelines. On appeal, Bethea raises a single argument, namely
13   that the term of incarceration imposed is substantively unreasonable. We assume the parties’
14   familiarity with the underlying facts, the procedural history of the case, and the issues on
15   appeal, to which we refer only as necessary to explain our decision to affirm.

16   I.     Background

17          In October 2016, Bethea pleaded guilty to two counts of possessing a firearm after
18   being convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). In advance of
19   sentencing, the Probation Department prepared a presentence report that identified the
20   statutory maximum sentence of incarceration on each count as 120 months and calculated
21   the applicable Guidelines range to be 70 to 87 months. Bethea requested a downward
22   departure under § 5H1.3, which permits such an adjustment when “[m]ental and emotional
23   conditions . . . are present to an unusual degree.” According to Bethea, 50-month sentences
24   on each count of conviction, to run concurrently, were appropriate under § 5H1.3. The
25   government argued for an above-Guidelines sentence of a total of 96-months of
26   imprisonment.

27          During the sentencing hearing and without objection from the parties, the District
28   Court adopted the Probation Department’s calculation of the Guidelines range. The court
29   denied Bethea’s request for a downward departure, explaining, “In my view, there has not
                                                    2
1    been a sufficient connection” shown between “the very troubled background that Mr.
2    Bethea concededly has” and his commission of the offenses for which he was being
3    sentenced. Appellant’s App. (“A.A.”) at 111. Ultimately, the District Court imposed a 70-
4    month sentence on each count of conviction and directed that those sentences run
5    consecutively, resulting in a total term of incarceration of 140 months. Judgment was entered
6    on August 30, 2017. Bethea timely filed a notice of appeal.

7    II.    Discussion

8           We review sentences imposed by district courts “under a ‘deferential abuse-of-
9    discretion standard.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)
10   (quoting Gall v . United States, 552 U.S. 38, 41 (2007)). Under this standard, we evaluate
11   whether a sentence is procedurally and substantively reasonable. See id.

12          Bethea argues that his sentence is substantively unreasonable. In doing so, he “bears a
13   heavy burden[,] because our review of a sentence for substantive unreasonableness is
14   particularly deferential.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We defer
15   so heavily on substantive review of a sentence because of the “district court’s unique
16   factfinding position, which allows it to hear evidence, make credibility determinations, and
17   interact directly with the defendant . . . thereby gaining insights not always conveyed by a
18   cold record.” Id. On such review, we will set aside “only those sentences that are so
19   ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law’ that
20   allowing them to stand would ‘damage the administration of justice.’” Id. (quoting United
21   States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). Still, when a district court judge “decides
22   that an outside-Guidelines sentence is warranted, [she] must consider the extent of the
23   deviation and ensure that the justification is sufficiently compelling to support the degree of
24   the variance,” Gall, 552 U.S. at 50, and on appeal we look for reflections of such
25   consideration.

26          Although Bethea’s sentence is very lengthy and significantly above the high end of
27   the calculated Guidelines range, we conclude that it is not substantively unreasonable. The
28   record shows that the District Court recognized its obligation to “impose a sentence that is

                                                      3
1    not greater than necessary to achieve the goals of sentencing that are then laid out in the
2    statute.” A.A. 112. In sentencing Bethea, it specifically referenced several of the
3    “[Section] 3553(a) [f]actors,” id. at 111–12, and found particularly concerning Bethea’s
4    possession of marijuana and of a gun while he was on parole. It similarly noted that, almost
5    immediately after Bethea was acquitted of related state gun and drug charges—charges that
6    he admitted were true during these federal proceedings—he again engaged in the same
7    behavior.

8           The District Court viewed Bethea’s conduct as posing “a terrible, terrible risk for
9    society,” id. at 113, and cited that risk as a basis for the above-Guidelines sentence.
10   Additionally, the court pointed with great concern to Bethea’s previous convictions for
11   robbery in the first degree and murder in the second degree. It further cited his “additional
12   conviction for prison contraband and assault on staff in the prison.” Id. at 114. His failure
13   during a previous state court trial to correct sworn testimony that he knew to be false also
14   played a significant and justifiable role in the District Court’s sentencing decision. See
15   A.A. 110 (“That [silence in the face of false testimony] completely turns the justice process
16   on its head. That goes to the heart of the integrity of the judicial process. And in my mind,
17   there is nothing more sacred than the integrity of the judicial process.”). The District Court’s
18   careful consideration of each of these factors as well as of the violent nature of Bethea’s
19   previous conduct, and the observation that not all of these factors were captured by the
20   Sentencing Guidelines calculation, convince us that the court’s deviation is adequately
21   supported on review for substantive reasonableness.

22          Bethea’s arguments to the contrary do not persuade us otherwise. His main
23   contention on appeal is that in imposing the 140-month sentence, the District Court did not
24   sufficiently account for his traumatic childhood and his need for mental health treatment.
25   But the District Court referred to Bethea’s “mental and emotional conditions at the time of
26   the commission of the offense,” and made clear that it would consider them in fashioning an
27   appropriate sentence. Id. at 111.

28          We take seriously Bethea’s concerns about the mental health treatment he will receive
29   while incarcerated—as well as the possibility that his mental health condition that led to the
                                                     4
1    conduct of conviction deteriorated as a result of the extensive time that he spent in solitary
2    confinement while in state custody. We therefore add our voice to that of the District Court
3    in recommending that he receive appropriate treatment while in the custody of the Federal
4    Bureau of Prisons. But Bethea’s disagreement with the District Court’s conclusion that other
5    factors, including the need to protect the public from further crimes, outweighed concerns
6    raised by his mental health condition, does not render substantively unreasonable the
7    sentence imposed by the court.

8                                            *      *       *

9           We have considered Bethea’s remaining arguments and find them to be without
10   merit. For the reasons set forth above, the judgment of the District Court is AFFIRMED.

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




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