13-201-cr
United States v. John Highsmith

                              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
22nd day of November, two thousand thirteen.

Present:
            ROBERT D. SACK
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                         No. 13-201-cr

JOHN HIGHSMITH,

                  Defendant–Appellant.
____________________________________________________

FOR APPELLANT:                    Laurie S. Hershey, Esq., Manhasset, NY(on submission).

FOR APPELLEE:           Daniel S. Silver, Peter A. Norling, Assistant United States
                        Attorneys, for Loretta E. Lynch, United States Attorney for the
                        Eastern District of New York (on submission).
____________________________________________________

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

New York (Garaufis, J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the amended judgment of the district court is AFFIRMED.

       Defendant–Appellant John Highsmith appeals from an amended judgment imposed

following his conviction by guilty plea for conspiracy to distribute 50 grams or more of cocaine

base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii), and using and carrying a firearm in

relation to that offense, in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced

Highsmith to fifteen years’ incarceration, ten years’ supervised relase, and a $200 special

assessment. On appeal Highsmith argues that district court’s sentence was procedurally and

substantively unreasonable. For the reasons set forth below, we affirm the district court’s

sentence. We assume the parties’ familiarity with the relevant facts, the procedural history, and

the issues presented for review.

       “We review the district court’s sentence under a ‘deferential abuse-of-discretion

standard.’” United States v. Ingram, 721 F.3d 35, 37 (2d Cir. 2013) (per curiam) (quoting United

States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)). “This review ‘encompasses two

components: procedural review and substantive review.’” United States v. Rodriguez, 715 F.3d

451, 451 (2d Cir. 2013) (per curiam) (quoting Cavera, 550 F.3d at 189). “[W]here a defendant

does not object to a district court’s alleged failure to properly consider all of the § 3553(a)

factors, our review on appeal is restricted to plain error.” United States v. Wagner-Dano, 679

F.3d 83, 89 (2d Cir. 2012). At the outset, we note that Highsmith raised no objection in the

district court to the sentence. Our review, therefore, is for plain error.

       On appeal, Highsmith argues the district court did not adequately consider several factors

under 18 U.S.C. § 3553(a) and erred in doubling his sentence under the drug conspiracy charge

from a five year mandatory minimum to ten years. “Failure to consider the § 3553(a) factors

constitutes procedural error.” 679 F.3d at 88–89. We have recognized before that “we will not
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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.” Cavera, 550 F.3d at 189. Contrary to

Highsmith’s contentions on appeal, the district court did assess the § 3553(a) considerations at

the resentencing. Among other items, the district court discussed the presentence report and its

recommended sentence under the guidelines, a letter from Highsmith’s attorney, a letter from the

government, Highsmith’s efforts to continue his education, his health, his family, and even

policy considerations. Indeed, the district court balanced Highsmith’s negative incarceration

history against his proactive steps to educate himself while incarcerated. Finally, the court

expressly stated that “the sentence I’m going to impose on the defendant will be sufficient, but

not greater than necessary, to fulfill the purposes of sentencing under 18 U.S. Code, Section

3553(a).” Resentencing Hr’g Tr. 16, Jan. 4, 2013, ECF No. 44. The district court, therefore, did

not err procedurally in assessing the relevant considerations under § 3553(a) prior to sentencing

Highsmith.

       Similarly, there is no substantive error with the sentence imposed by the district court. In

reviewing a sentence for substantive reasonableness, this court will vacate a sentence “when [the

district court’s] decision cannot be located within the range of permissible decisions or is based

on a clearly erroneous factual finding or an error of law.” United States v. Rigas, 490 F.3d 208,

238 (2d Cir. 2007) (internal quotation marks omitted). We do not presume that a sentence is

reasonable, but when it falls within the permissible range of sentences, we defer to the district

court. See Wagner-Dano, 679 F.3d at 95. Here, there was no error. The sentence of fifteen

years’ incarceration fell within the permissible range of sentences, with the sentencing guidelines

recommending an overall sentence of 420 months and the mandatory minimum sentences on

both counts to which Highsmith pled guilty each carrying terms of imprisonment of five years to



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run consecutively, see 21 U.S.C. § 841(b)(1)(B)(iii) and 18 U.S.C. §§ 924(c)(1)(A)(i), (D)(ii).

See, e.g., Ingram, 721 F.3d at 37 (2d Cir. 2013) (per curiam).

       Determining there was no error in the district court’s imposition of sentence, much less

plain error, we AFFIRM the January 10, 2013 amended judgment of conviction.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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