     13-2821
     United States v. Hightower

                          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 24th day of December, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                RAYMOND J. LOHIER, Jr.,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-2821-cr
16
17       SEAN HIGHTOWER,
18                Defendant-Appellant.1
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Steven Yurowitz, Newman &
22                                             Greenberg, New York, New York.
23



                1
              The Clerk of Court is directed to amend the case
         caption as above.
                                                  1
 1   FOR APPELLEE:              Emily Berger, Lara Treinis Gatz,
 2                              for Loretta E. Lynch, United
 3                              States Attorney for the Eastern
 4                              District of New York, Brooklyn,
 5                              New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Eastern District of New York (Seybert, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Sean Hightower appeals from the judgment of the United
15   States District Court for the Eastern District of New York
16   (Seybert, J.), sentencing him to 48 months imprisonment for
17   violating conditions of his supervised release. We assume
18   the parties’ familiarity with the underlying facts, the
19   procedural history, and the issues presented for review.
20
21        Hightower pled guilty in June 2006 to one count of
22   conspiring to commit Hobbs Act robbery and one count of
23   using a firearm in furtherance of that offense. The
24   advisory range for Hightower’s sentence pursuant to the U.S.
25   Sentencing Guidelines (“USSG”) was 84 to 90 months
26   imprisonment. The district court departed downward from the
27   Guidelines range, imposing a sentence of 72 months
28   imprisonment (and three years supervised release). By May
29   19, 2012, as he neared the conclusion of his term of
30   supervised release, Hightower was at the scene of a shooting
31   in Brooklyn. He was charged with attempted murder, assault
32   with intent to commit serious injury, criminal possession of
33   a weapon, menacing, and hindering prosecution. Hightower
34   pled guilty in New York state court to one count of
35   hindering prosecution.
36
37        In the district court, Hightower admitted that the
38   crime constituted a violation of his supervised release.
39   The Guidelines range for this violation was three to nine
40   months imprisonment. Both the Probation Department and the
41   government recommended that the district court sentence
42   Hightower to the maximum term of five years imprisonment,
43   arguing that an earlier guilty plea and another violation of
44   supervised release justified the upward departure. The
45   district court imposed a sentence of 48 months imprisonment.
46


                                  2
 1        On appeal, Hightower challenges his sentence as
 2   procedurally and substantively unreasonable. He also
 3   contends that the district court could not sentence him to
 4   imprisonment at all because the district court had not
 5   advised him at his 2006 plea proceeding of the possibility
 6   of imprisonment for violating his supervised release.
 7
 8        We review sentences for reasonableness, United States
 9   v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),
10   which “amounts to review for abuse of discretion,” United
11   States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en
12   banc). This concept applies both to “the sentence itself
13   and to the procedures employed in arriving at the sentence.”
14   United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.
15   2008) (internal quotation marks omitted).
16
17        Hightower argues that his sentence was procedurally
18   unreasonable because the court did not explicitly discuss
19   factors that it was required to consider under 18 U.S.C.
20   §§ 3553(a) and 3583(e)(3). “[T]he law in this circuit is
21   well established that, in the absence of record evidence
22   suggesting otherwise, we presume that a sentencing judge has
23   faithfully discharged [the] duty to consider the statutory
24   factors.” Verkhoglyad, 516 F.3d at 129 (internal quotation
25   marks omitted). No record evidence suggests that the
26   district court either omitted to consider any required
27   factors or considered any improper factors. To the
28   contrary, the district court connected the sentence to
29   several of the § 3553(a) factors, such as by discussing
30   Hightower’s history and characteristics and by explaining
31   the need to protect the public from Hightower.
32
33        Hightower argues that the 48-month prison sentence was
34   substantively unreasonable. The requirement of substantive
35   reasonableness “provide[s] a backstop for those few cases
36   that, although procedurally correct, would nonetheless
37   damage the administration of justice because the sentence
38   imposed was shockingly high, shockingly low, or otherwise
39   unsupportable as a matter of law.” United States v. Rigas,
40   583 F.3d 108, 123 (2d Cir. 2009). An above-Guidelines
41   sentence for a violation of supervised release is less
42   likely to be unreasonable if the district court had imposed
43   a below-Guidelines sentence on the underlying conviction.
44   Verkhoglyad, 516 F.3d at 129-30; USSG § 7B1.4, Application
45   Note 4 (“[w]here the original sentence was the result of a
46   downward departure . . . an upward departure may be
47   warranted” upon a future violation of supervised release).

                                  3
 1   A below-Guidelines sentence was imposed for Hightower’s
 2   original Hobbs Act conspiracy and accompanying firearms
 3   charge. His criminal conduct while on supervised release
 4   and his violations represent a breach of trust. The
 5   district court’s 48-month sentence was neither “shockingly
 6   high, shockingly low, [n]or otherwise unsupportable as a
 7   matter of law.” Rigas, 583 F.3d at 123.
 8
 9        Finally, Hightower argues that a sentence of
10   incarceration was impermissible because the district court
11   failed to advise him prior to his guilty plea that a
12   violation of supervised release could result in
13   imprisonment. At the time of Hightower’s plea hearing, the
14   district court was required to “inform the defendant of, and
15   determine that the defendant understands, . . . any maximum
16   possible penalty, including imprisonment, fine, and term of
17   supervised release.” Fed. R. Crim. P. 11(b)(1)(H).
18   However, any “variance from the requirements of [Rule 11] is
19   harmless error if it does not affect substantial rights.”
20   Fed. R. Crim. P. 11(h). Hightower’s plea agreement stated
21   that a violation of supervised release could result in jail
22   time. Before pleading guilty, he confirmed that he
23   understood the plea agreement, and the district court
24   advised him that the maximum possible sentence was life
25   imprisonment and that he may be subject to supervised
26   release. Even assuming, without deciding, that the district
27   court should have explained the implications of violating
28   supervised release, on these facts the error was harmless.
29   Cf. United States v. Andrades, 169 F.3d 131, 134 (2d Cir.
30   1999).
31
32        For the foregoing reasons, and finding no merit in
33   Hightower’s other arguments, we hereby AFFIRM the judgment
34   of the district court.
35
36                              FOR THE COURT:
37                              CATHERINE O’HAGAN WOLFE, CLERK
38




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