14-875-cr
U.S. v. Stevenson

                             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.

        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
11th day of February, two thousand and fifteen.

Present:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                    v.                                                      No. 14-875-cr

AARON J. STEVENSON,

                  Defendant–Appellant.
____________________________________________________

For Defendant-Appellant:        John Humann, Federal Public Defender’s Office, Western District
                                of New York, Buffalo, NY.

For Appellee:           Monica J. Richards, Assistant United States Attorney, for William
                        J. Hochul, Jr., United States Attorney for the Western District of
                        New York, Buffalo, NY.
____________________________________________________




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       Appeal from a judgment of the United States District Court for the Western District of

New York (Arcara, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Aaron Stevenson (―Stevenson‖) appeals from a March 17, 2014 judgment of conviction

entered in the United States District Court for the Western District of New York (Arcara, J.).

Stevenson originally pled guilty in 2008 to possession with intent to distribute five grams or

more of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and was sentenced principally

to 77 months’ imprisonment followed by five years’ supervised release. In 2012, pursuant to 18

U.S.C. § 3582(c), his sentence was reduced to 57 months’ imprisonment. The five-year

supervised release term remained unchanged. In this appeal, Stevenson challenges the

sufficiency of the evidence supporting the district court’s finding that he violated two conditions

of supervised release: that he ―not commit another federal, state or local crime‖ and that he ―not

unlawfully possess a controlled substance.‖ JA at 37. He also argues that the district court

erroneously relied on hearsay statements and that his sentence is substantively unreasonable. We

assume the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal. Because sufficient non-hearsay evidence supports the district court’s findings of guilt on

the Violation Petition’s three charges, we do not address Stevenson’s argument as to the hearsay

evidence. We also hold that Stevenson’s sentence is not substantively unreasonable.

I. The Sufficiency of the Evidence to Sustain the Violation of Supervised Release

       Stevenson challenges the sufficiency of the evidence supporting the district court’s

findings of guilt on the Violation Petition’s three charges: violation of a federal law, 21 U.S.C.

§ 841(a)(1), possession of marijuana with intent to distribute (Charge One); violation of two state



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laws, N.Y. Penal Law § 221.30, criminal possession of marijuana in the first degree, a Class C

felony, and N.Y. Penal Law § 221.05, unlawful possession of marijuana, a violation level

offense (Charge Two); and unlawful possession of a controlled substance, marijuana (Charge

Three). Stevenson contends that the court’s finding that he unlawfully possessed marijuana was

clearly erroneous. Stevenson also challenges the district court’s admission of certain hearsay

statements during the revocation hearing.

       Stevenson’s arguments are unavailing because the non-hearsay evidence was sufficient to

support the district court’s findings of guilt—and thus its decision that Stevenson violated two of

his conditions of supervised release. After considering a subset of the 18 U.S.C. § 3553(a)

sentencing factors, a district court may revoke supervised release if it ―finds by a preponderance

of the evidence that the defendant violated a condition of supervised release.‖ 18 U.S.C.

§ 3583(e). ―We accord strong deference to a district court’s credibility determinations,

particularly where that court based its findings on such determinations.‖ United States v. Carlton,

442 F.3d 802, 811 (2d Cir. 2006). ―[W]e review a district court’s finding of a violation of

supervised release only for an abuse of discretion and its factual findings for clear error.‖ Id. at

810.

       The following facts are undisputed: Stevenson was present at an apartment just before

and just after a package addressed to that apartment was delivered. The package contained

eleven pounds of marijuana wrapped in cellophane. Stevenson left the apartment and drove

around the block several times just before the package delivery. He returned to the apartment just

after it was delivered. Stevenson had a close relationship with Carrillo Prim, the resident of the

apartment. While executing a search warrant, police found a plastic bag of marijuana directly

underneath Stevenson and almost $2,000 in cash, much of it in $20 bills, in his pocket.



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Stevenson was unemployed at the time. Police also found a digital scale, 78 unused plastic vials

commonly used for packaging drugs for sale, a piece of mail addressed to Stevenson at the

apartment, and two prescription medication bottles bearing his name. After his arrest, Stevenson

told the mother of his children that ―[Prim]’s just got to take the fall for it.‖ JA at 141–42.

       It is true, as Stevenson points out, that he presented innocent explanations for much of

this evidence at the revocation hearing—the cash was a loan from his aunt, his behavior

surrounding the delivery was that of a jealous lover, the letter addressed to him could have been

the result of Prim applying for a credit card in his name, he brought a bottle of prescription

medication to the apartment that morning, and his reference to Prim ―tak[ing] the fall‖ was an

expression of his hope that Prim would ―take full responsibility for [her] actions.‖ Id. at 132–42.

But the district court’s credibility determinations and the reasonable inferences it drew from the

evidence informed its findings that Stevenson possessed the marijuana in the package and that he

intended to distribute it. Observing Stevenson’s demeanor at the revocation hearing, and in light

of its determination that Detective Mulhern and other officers testified credibly, the district court

found Stevenson’s denial that he lived at the apartment and his denial that he possessed the

marijuana to be ―self-serving and not entirely credible.‖ Id. at 166. The court also did not credit

Stevenson’s explanation for his ―counter-surveillance‖ behavior surrounding the package

delivery, his denial that he asked an officer not to ―throw him under the bus,‖ or his explanation

of his insistence during a phone call that Prim ―take the fall.‖ Id. at 166–67. After listening to the

recording of Stevenson’s phone call, the court noted: ―At no time during the phone call, wherein

defendant discusses at length the circumstances of the charges against him, does defendant deny

knowledge or possession of the marijuana.‖ Id. at 167. Stevenson’s contention that the district

court should have placed greater weight on the fact that Prim pled guilty to state crimes is



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unavailing. Prim’s guilty plea does nothing to resolve the question of whether Stevenson violated

his conditions of supervised release. The fact that Prim acknowledged her role in the crimes does

not mean Stevenson was not also involved.

       Because the non-hearsay record evidence amply supports the district court’s findings of

guilt by a preponderance of the evidence on all three charges alleged in the Violation Petition,

the district court did not err in revoking Stevenson’s supervised release. Therefore, even

assuming the court erred in admitting Prim’s hearsay statements, such error was harmless. See

Fed. R. Crim. P. 52(a) (―Any error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.‖); United States v. Dukagjini, 326 F.3d 45, 61–62 (2d Cir.

2002) (―Reversal is necessary only if the error had a substantial and injurious effect or influence

in determining the jury’s verdict.‖) (internal quotation marks omitted).

II. The Substantive Reasonableness of Stevenson’s Sentence

       Citing 18 U.S.C. § 3553(a)’s ―parsimony provision,‖ Stevenson argues his sentence is

substantively unreasonable in light of the ―underwhelming proof of guilt presented at the

[revocation] hearing‖ and the fact that this was his first violation of supervised release.

Appellant’s Br. at 23–24. This court reviews sentences for ―reasonableness,‖ a concept that

encompasses both procedural and substantive review. United States v. Cavera, 550 F.3d 180,

187–89 (2d Cir. 2008) (en banc). Substantive review examines the length of the sentence

imposed, United States v. Bonilla, 618 F.3d 102, 108–09 (2d Cir. 2010), under a ―deferential

abuse-of-discretion standard.‖ Cavera, 550 F.3d at 189 (quoting Gall v. United States, 552 U.S.

38, 41 (2007)). The factors we consider are well known. See, e.g., Cavera, 550 F.3d at 189;

United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009); United States v. Friedberg, 558 F.3d

131, 137 (2d Cir. 2009).



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       At sentencing Stevenson made no objection to the district court’s adoption of the

Guidelines range and presented no mitigation argument. Absent any objection, the district court

explicitly adopted the Probation Department’s Guidelines range calculation of 51 to 63 months,

and noted that the statutory maximum was 60 months. Reviewing the short period of time

between the beginning of Stevenson’s period of supervised release and the violations and the

hefty penalties associated with his criminal conduct, the court asked Stevenson when he would

get his ―wake-up call.‖ JA at 175–77. The court also pointed out that if Stevenson is ever

convicted of another federal crime he will face sizable penalties. The court sentenced Stevenson

to 56 months’ imprisonment with no period of supervised release, a sentence in the middle of the

applicable Guidelines range.

       Stevenson’s arguments that his sentence is substantively unreasonable are unconvincing.

That the sentence followed his first violation is of little significance given that the conduct

underlying the violations occurred less than two months after he began the period of supervised

release. The court properly considered the fact that Stevenson ―was in jail for a pretty good

period of time and he comes out within a very short period of time, he’s back doing what he was

doing before.‖ Id. at 175; see U.S.S.G. ch. 7, part A, intro. comment. 3(b) (explaining the

Sentencing Commission’s policy guideline that on a violation of supervised release ―the court

should sanction primarily the defendant’s breach of trust‖). Stevenson’s conduct demonstrated

that supervision was inadequate as a deterrent. While the district court was required to consider

the ―nature and circumstances of the offense‖ under 18 U.S.C. § 3553(a)(1), it was under no

obligation to consider Stevenson’s post-hoc assessment of the strength of the evidence at the

revocation hearing. On this record, it cannot be said that Stevenson’s sentence falls outside the




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range of permissible decisions. Stevenson’s argument that his sentence is substantively

unreasonable is without merit.

III. Conclusion

       We have considered Stevenson’s remaining arguments and find them to be without merit.

The judgment of the district court is AFFIRMED.



                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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