15-726-cr
United States v. Nastri

                                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 7th day of March, two thousand sixteen.

PRESENT:            JOSÉ A. CABRANES,
                    DEBRA ANN LIVINGSTON,
                    GERARD E. LYNCH,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                           Appellee,                         15-726-cr

                           v.

JAMES PAUL NASTRI,

                           Defendant-Appellant.


FOR DEFENDANT-APPELLANT:                                 William T. Koch, Jr. and W. Theodore
                                                         Koch III, Koch & Koch, Old Lyme, CT.

FOR APPELLEE:                                            Rahul Kale (Sandra S. Glover, of counsel),
                                                         Assistant United States Attorneys, for
                                                         Deirdre M. Daly, United States Attorney,
                                                         District of Connecticut, New Haven, CT.

        Appeal from a judgment of the United States District Court for District of Connecticut
(Janet C. Hall, Chief Judge).


                                                   1
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Defendant-appellant James Paul Nastri (“Nastri”) appeals from a judgment of the District
Court revoking his term of supervised release and sentencing him to 24 months’ imprisonment, to
be served after he completes a 210-month sentence imposed by the District of Vermont for
conspiring to distribute heroin. Nastri had violated the conditions of his supervised release by
leaving the State of Connecticut without permission, failing to report to the probation office, and
committing the aforementioned drug-trafficking offense. Nastri argues that the sentence is
substantively unreasonable.1 We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

         We assess the substantive reasonableness of a sentence for violation of supervised release in
light of factors set forth by 18 U.S.C. § 3583(e), though we also allow a district court to consider
additional factors.2 United States v. Williams, 443 F.3d 35, 47 (2d Cir. 2006). Our standard is
reasonableness. United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005). Review under that standard
amounts to “a particularly deferential form of abuse-of-discretion review,” United States v. Messina,
806 F.3d 55, 61 (2d Cir. 2015) (internal quotation marks omitted), which “provide[s] relief only in
the proverbial ‘rare case’” in which “the sentence imposed was shockingly high, shockingly low, or
otherwise unsupportable as a matter of law,” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009);
see also United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (“We will . . . 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.” (emphasis and internal quotation
marks omitted)).

        This is not an “exceptional” case. Although Nastri’s 24-month sentence exceeds the
Guidelines range of eight to fourteen months, we have recognized that an upward departure may be
warranted where the Guidelines range underrepresents the defendant’s criminal history and risk of
recidivism. See, e.g., United States v. Gilliard, 671 F.3d 255, 260–61 (2d Cir. 2012); United States v.
Verkhoglyad, 516 F.3d 122, 136 (2d Cir. 2008) (“[N]o presumption of unreasonableness may be
applied to sentences outside applicable Guidelines ranges.”). Here, Judge Hall stated that Nastri’s



    1
        He concedes that he “can identify no procedural error.” Def. Br. 13.
    2
      The Government implies that we should review only for “plain error,” the proper standard
when a defendant fails to object before a district court to an alleged sentencing error. See Fed. R.
Crim. P. 52(b). But although the Government describes the doctrine of plain-error review in some
detail, its brief never actually says that Nastri failed to raise his challenge below. Accordingly, the
Government has “waived waiver.” See United States v. Quiroz, 22 F.3d 489, 491 (2d Cir. 1994).

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violations of supervised release exceeded “the scope and magnitude” of anything she had seen.
Gov’t App. 52, 55. This is precisely the type of situation in which we have previously sustained
above-Guidelines sentences. See, e.g., United States v. Lifshitz, 714 F.3d 146, 150 (2d Cir. 2013)
(upholding an above-Guidelines sentence in light of a defendant’s “repeated failures to comply with
the terms of his supervised release”).

        The essence of Nastri’s argument is that the District Court “revealed a strain of
unreasonableness” in determining that Nastri had failed to confront his drug addiction. The record
indicates, however, that the District Court based its sentence wholly, or at least “principally,” on his
egregious violations of his release conditions. To the extent the Court did consider Nastri’s
addiction, it is well within a district court’s discretion to determine whether addiction is cause for
leniency or merely an indication that he will “persist[ ] in a life of reckless, criminal, dangerous,
destructive, [and] deceitful conduct,” see United States v. Douglas, 713 F.3d 694, 703 (2d Cir. 2013)
(second alteration in original); cf. U.S.S.G. § 5H1.4 (“Drug . . . dependence or abuse ordinarily is not
a reason for a downward departure. Substance abuse is highly correlated to an increased propensity
to commit crime.”). Here, Judge Hall would have had ample reason take the latter view—not least
because this was the second time she had sentenced him for a narcotics-related violation of
supervised release.3

        In short, Nastri has given us no reason to find that the District Court imposed a sentence
outside “the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks
omitted).

                                           CONCLUSION

       We have reviewed all of the arguments raised by Nastri on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the March 5, 2015 judgment of the District
Court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




    3
       Nastri implies that the District Court improperly considered a disputed fact—namely, whether
he “smuggl[ed] drugs into prison in his anal canal on his way back from his mother’s funeral,” Def.
Br. 10. But as Nastri admits, the Court expressly “promised it would not consider” that alleged
incident, id., and Nastri offers nothing to suggest that the Court did not keep its promise. As an
initial matter, it seems unlikely that a single drug-smuggling incident, no matter how lurid its details,
would have much mattered in light of Nastri’s conviction for managing an extensive narcotics-
trafficking organization.

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