16-4131
United States v. Martin

                               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
1st day of December, two thousand seventeen.

Present:    ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                          v.                                                  16-4131

JERROD MARTIN,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:         Lisa A. Peebles, Federal Public Defender for the Northern District
                                 of New York (Molly K. Corbett, James P. Egan, on the brief),
                                 Albany, N.Y.

Appearing for Appellee:          Paul D. Silver, Assistant United States Attorney for the Northern
                                 District of New York (Cyrus P.W. Rieck, Assistant United States
                                 Attorney, on the brief), for Grant C. Jaquith, Acting United States
                                 Attorney for the Northern District of New York, Albany, N.Y.
Appeal from the United States District Court for the Northern District of New York (Suddaby,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Jerrod Martin appeals from the 12-month sentence of imprisonment imposed following
his conviction, after a jury trial, on one count of misdemeanor interference with an officer or
employee of the United States in violation of 18 U.S.C. § 111. The sentence is to be served
consecutive to the 150-month term of imprisonment Martin is already serving on unrelated
charges. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        “We review a challenged sentence for reasonableness. This inquiry has both procedural
and substantive components.” United States v. Friedberg, 558 F.3d 131, 133 (2d Cir. 2009)
(internal citation and internal quotation marks omitted). “Procedural error occurs in situations
where, for instance, the district court miscalculates the Guidelines; treats them as mandatory;
does not adequately explain the sentence imposed; does not properly consider the § 3553(a)
factors; bases its sentence on clearly erroneous facts; or deviates from the Guidelines without
explanation.” United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011).

        Martin first challenges the district court’s decision not to reduce his offense level based
on his acceptance of responsibility. Martin argues that he offered to plead guilty to simple
assault, and the government declined to accept that plea. However, even if his plea had been
accepted, Martin would not be automatically entitled to an adjustment for acceptance of
responsibility. See United States v. Hirsch, 239 F.3d 221, 226 (2d Cir. 2001). The district court’s
decision whether to grant the adjustment is “entitled to great deference on review” because “[t]he
sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.”
U.S.S.G. § 3E1.1, Application Note 5; see also United States v. Reyes, 9 F.3d 275, 280 (2d Cir.
1993) (“[T]he sentencing judge is unquestionably in a better position to assess contrition and
candor than is an appellate court.”) (internal quotation marks omitted). While Martin offered to
plead guilty to simple assault, after the government declined he proceeded to trial on that count,
putting the government to its proof. Martin also declined to speak to the probation officer
preparing the presentence report, or to address the district court during sentencing. The record
amply supports the district court’s decision not to adjust based on acceptance of responsibility.

         Martin also appeals the district court’s decision not to downwardly depart based on the
conduct of others involved in the incident at issue. “A district court’s decision not to depart
downward is within the court's broad discretion and rarely reviewed on appeal.” United States v.
Young, 811 F.3d 592, 599 (2d Cir. 2016) (citation and internal quotation marks omitted). “A
district court is not obliged to give reasons for refusing to depart, and, where a defendant has not
shown a violation of law or misapplication of the Guidelines, refusal to depart warrants vacatur
only if the defendant points to clear evidence of a substantial risk that the judge misapprehended
the scope of his departure authority.” Id. (citation and internal quotation marks omitted). Martin
makes no such showing here.




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       We have considered the remainder of Martin’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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