14-0328-cr
United States v. McDonald

                                 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
25th day of November, two thousand fourteen.

Present:    ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,


                            v.                                                14-0328-cr

BRENT McDONALD,

                        Defendant-Appellant.
__________________________________________

Appearing for Defendant-Appellant: Elizabeth D. Mann, Tepper Dardeck Levins & Mann, LLP,
                                   Rutland, VT.

Appearing for Appellee:                   Barbara A. Masterson and Gregory L. Waples, Assistant
                                          United States Attorneys, for Tristram J. Coffin, United
                                          States Attorney, District of Vermont, Burlington, VT.

        Appeal from the United States District Court for the District of Vermont (Murtha, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Appellant Brent McDonald appeals from a January 30, 2014 judgment of the United
States District Court for the District of Vermont (Murtha, J.) imposing a sentence of 151 months
imprisonment and a three-year term of supervised release after McDonald pleaded guilty to three
counts of distribution of cocaine base and one count of possession with intent to distribute
cocaine base and heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C). We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

          “The district courts have discretion to select an appropriate sentence, and in doing so are
statutorily bound to consider the factors listed in [18 U.S.C.] § 3553(a), including the advisory
Guidelines range.” United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008). We review the
district court’s sentence under a “deferential abuse-of-discretion standard.” Id. at 189 (internal
quotation marks omitted). “This form of appellate scrutiny encompasses two components:
procedural review and substantive review.” Id. “A district court commits procedural error where
it fails to calculate the Guidelines range . . . , makes a mistake in its Guidelines calculation, or
treats the Guidelines as mandatory.” Id. at 190.

         In reviewing for substantive error, we “take into account the totality of the circumstances,
giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the
institutional advantages of district courts.” Id. at 190 (internal citation omitted). “[W]e will not
substitute our own judgment for the district court’s on the question of what is sufficient to meet
the § 3553(a) considerations in any particular case” but “will instead set aside a district court’s
substantive determination only in exceptional cases where the trial court’s decision cannot be
located within the range of permissible decisions.” Id. at 189 (internal quotation marks and
emphasis omitted).

         The district court sentenced McDonald to 151 months’ imprisonment, at the low end of
the applicable Guidelines range. While we have declined to adopt a per se rule, “[w]e recognize
that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within
the broad range of sentences that would be reasonable in the particular circumstances.” United
States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).

         McDonald nevertheless contends that his sentence, incorporating the career offender
enhancement, is substantively unreasonable because it overstates the seriousness of his criminal
conduct and is unnecessarily harsh in light of his advanced age, drug addiction, and terminal
illness. Here, the record indicates that the district court considered and rejected these arguments,
concluding that the sentence was warranted under the Section 3553(a) factors. The district court
found that the career offender enhancement was appropriate in light of McDonald’s lengthy
criminal history and his decision to engage in criminal conduct while on supervised release for
previous convictions. Similarly, the district court considered McDonald’s age, addiction, and
illness in imposing its sentence, apparently concluding that these factors were insufficient to
compel a more lenient penalty. While a sentence of 151 months for McDonald’s most recent
criminal conduct is certainly severe, on the present record, we cannot conclude that “the trial
court’s decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d
at 189 (internal quotation marks omitted).



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         To the extent McDonald argues that he was improperly categorized as a career offender
because the two predicate offenses underlying this enhancement should not have been counted
separately, this challenge sounds in procedural error. See Cavera, 550 F.3d at 188 (2d Cir. 2008)
(“A district court commits procedural error where it . . . makes a mistake in its Guidelines
calculation.”). Nevertheless, we find no procedural error here in application of the career
offender enhancement. Prior sentences are separate from each other if the offenses “were
separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to
committing the second offense).” U.S.S.G. § 4A1.2(a)(2). Here, the police arrested McDonald
for the conduct underlying his 2006 federal court conviction on October 3, 2004. McDonald then
engaged in the conduct underlying his 2006 state court conviction on October 20, 2005 and
December 1, 2005, and was separately arrested for these actions on December 1, 2005.
Accordingly, even though the sentences for these two convictions ran concurrently, because “the
[D]efendant [was] arrested for the first offense prior to committing the second offense,” id., the
district court appropriately counted these offenses separately for purposes of the career offender
enhancement.

        We have considered the remainder of McDonald’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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