     13-2476
     United States v. Miller

                          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 22nd day of May, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       United States of America,
13                Appellee,
14
15                    -v.-                                               13-2476
16
17       Maurice Miller,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Paul J. Evangelista, Assistant
22                                             Federal Public Defender, (Molly
23                                             Corbett, on the brief), Albany,
24                                             New York.
25
26       FOR APPELLEES:                        Brenda K. Sannes, (Sean K.
27                                             O’Dowd, on the brief), for
28                                             Richard S. Hartunian, United

                                                  1
 1                              States Attorney for the Northern
 2                              District of New York, Albany,
 3                              New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Northen District of New York (Sharpe, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Maurice Miller appeals from the judgment of the United
13   States District Court for the Northern District of New York
14   (Sharpe, J.), sentencing him principally to 11 months’
15   imprisonment upon a finding that Miller violated the terms
16   of his supervised release by committing another crime and
17   consuming alcohol. On appeal, Miller argues that (1) the
18   evidence was insufficient; and (2) the district court erred
19   procedurally by failing to consider the applicable
20   Guidelines range. We assume the parties’ familiarity with
21   the underlying facts, the procedural history, and the issues
22   presented for review.
23
24   1.   Miller argues that the evidence was insufficient for
25   the district court to find, “by a preponderance of the
26   evidence,” that he violated the terms of his supervised
27   release. 18 U.S.C. § 3583(e)(3); see United States v.
28   Carthen, 681 F.3d 94, 99-100 (2d Cir. 2012), cert denied,
29   133 S. Ct. 837 (2013). We review the district court’s
30   determination that Miller violated the conditions of
31   supervised release for abuse of discretion, and its factual
32   findings for clear error. See United States v. Carlton, 442
33   F.3d 802, 810 (2d Cir. 2006).
34
35        Under N.Y. Penal Law § 240.26(1), a person is guilty of
36   harassment in the second degree when “with intent to harass,
37   annoy or alarm another person: he or she strikes, shoves,
38   kicks or otherwise subjects such other person to physical
39   contact, or attempts or threatens to do the same.” A
40   defendant “may be presumed to intend the natural and
41   probable consequences of his [or her] actions,” and “intent
42   may be inferred from the totality of the conduct of the
43   accused.” People v. Mollaie, 916 N.Y.S.2d 726 (4th Dept.
44   2011) (internal quotation marks omitted) (alteration in
45   original).
46


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 1        Miller argues that the government failed to prove that
 2   Miller had the requisite intent for second degree
 3   harassment. However, the evidence showed that Miller
 4   slapped a woman with her purse, pushed and shoved her, and
 5   threatened to kill her if she spoke to the police. On this
 6   record, the district court could safely conclude that Miller
 7   intended “to harass, annoy or alarm” the woman. See
 8   McGuffog v. Ginsberg, 699 N.Y.S.2d 26 (1st Dept. 1999)
 9   (“[I]ntent to harass, annoy or alarm . . . may be inferred
10   from [defendant’s] conduct, including his threats to assault
11   her and his continued threatening and menacing manner even
12   after others intervened”).
13
14        The district court arrived at its conclusion by
15   crediting the testimony of a police officer over that of
16   another witness. Miller challenges that credibility choice.
17   But “[w]here there are two permissible views of the
18   evidence, the factfinder’s choice between them cannot be
19   clearly erroneous.” United States v. Iodice, 525 F.3d 179,
20   185 (2d Cir. 2008) (internal quotation marks omitted).
21
22   2.   Miller argues for the first time on appeal that the
23   district court erred by failing to consider the applicable
24   Guidelines range. A defendant’s challenge to a procedural
25   error in sentencing, raised for the first time on appeal, is
26   reviewed for plain error. United States v. Bonilla, 618
27   F.3d 102, 111 (2d Cir. 2010).
28
29        After considering the factors in 18 U.S.C. § 3553(a),
30   the district court may revoke a term of supervised release.
31   18 U.S.C. § 3583(e). “[I]n determining the particular
32   sentence to be imposed,” the court “shall consider . . .
33   [the] policy statements issued by the Sentencing
34   Commission.” 18 U.S.C. § 3553(a)(4)(B).
35
36        Miller contends that the district court’s failure to
37   inform him on the record of the applicable Guidelines range
38   indicates that the court did not consider it. However, even
39   if a district court fails to mention the applicable
40   Guidelines range, “in the absence of record evidence
41   suggesting otherwise, we presume that a sentencing judge has
42   faithfully discharged her duty to consider the statutory
43   factors.” United States v. Verkhoglyad, 516 F.3d 122, 129
44   (2d Cir. 2008) (internal quotation marks omitted). Miller
45   acknowledges that the district court correctly characterized
46   his violations as Grade C violations. Moreover, he does not
47   challenge that the probation office correctly informed the

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 1   district court that the violations were both grade C; that
 2   Miller was in a criminal history category of III; and that
 3   the correct sentencing range was five to eleven months.
 4   There is no indication that the district court, in imposing
 5   an 11-month prison sentence, failed to comply with its duty
 6   of consideration.
 7
 8
 9        For the foregoing reasons, and finding no merit in
10   Miller’s other arguments, we hereby AFFIRM the judgment of
11   the district court.
12
13                              FOR THE COURT:
14                              CATHERINE O’HAGAN WOLFE, CLERK
15




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