16-2345-cr
United States v. Brown


                          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 23rd day of May, two thousand seventeen.

PRESENT: REENA RAGGI,
                 SUSAN L. CARNEY,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,
                                 District Judge.*
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                                 No. 16-2345-cr

JAMES BROWN,
                                 Defendant-Appellant.
----------------------------------------------------------------------
FOR APPELLANT:                                    Walter C. Bansley III, Bansley Anthony Burdo,
                                                  LLC, New Haven, Connecticut.

FOR APPELLEE:                                    Anthony E. Kaplan, Marc H. Silverman,
                                                 Assistant United States Attorneys, for Deirdre
                                                 M. Daly, United States Attorney for the District
                                                 of Connecticut, New Haven, Connecticut.


*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.

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

Connecticut (Alfred V. Covello, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 24, 2016, is AFFIRMED.

       Defendant James Brown, who was convicted following a guilty plea of unlawful

possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g)(1), challenges his

above-Guidelines 92-month prison sentence as substantively unreasonable.1       We apply

“a particularly deferential form of abuse-of-discretion review” to such a challenge,

United States v. Cavera, 550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc); accord United

States v. Broxmeyer, 699 F.3d 265, 288–89 (2d Cir. 2012), and in doing so here, we

assume the parties’ familiarity with the facts and record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.

       In arguing substantive unreasonableness, Brown bears a heavy burden because we

will set aside a sentence on that ground “only in exceptional cases where the [district]

court’s decision cannot be located within the range of permissible decisions.” United

States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted); see also United

States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015) (discussing “broad range of permissible

decisions” available to district court).         In conducting such review of an

above-Guidelines sentence, we “must give due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance.” United States


1
  The government does not seek to enforce Brown’s plea agreement waiver of his right to
appeal.

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v. Coppola, 671 F.3d 220, 254 (2d Cir. 2012) (quoting Gall v. United States, 552 U.S. 38,

51 (2007)). For a sentence to be substantively unreasonable, it must be so “shockingly

high, shockingly low, or otherwise unsupportable as a matter of law” that failing to alter

it would “damage the administration of justice.” United States v. Rigas, 583 F.3d 108,

123 (2d Cir. 2009). That is not this case.

      The district court explained its decision to impose a prison sentence 29 months

above the applicable 51–63 month Guidelines range by reference to both aggravating and

mitigating factors. First, the crime of conviction, possession of a loaded firearm by a

defendant convicted of numerous violent felonies, was particularly serious.        See 18

U.S.C. § 3553(a)(2)(A). Second, Brown’s extensive criminal history was evidenced not

only by multiple convictions for robbery, assault, narcotics, and earlier firearms

possession, but also by the fact that Brown had been incarcerated for all but four of the

last 18 years, with prior terms of imprisonment failing adequately to deter or rehabilitate

him, or to protect the public from his criminal activity. See id. § 3553(a)(2)(B)–(D).

Third, even while incarcerated, Brown had committed a “significant number” of

disciplinary violations. Gov’t App’x 120. At the same time, the district court noted

Brown’s cooperation with the government, acceptance of responsibility, troubled

upbringing, and mental health issues. On this record, the district court’s imposition of a

92-month prison sentence cannot be deemed “shocking[],” United States v. Rigas, 583

F.3d at 123, so as to exceed its “broad sentencing discretion,” United States v.

Broxmeyer, 699 F.3d at 287.



                                             3
       Brown nonetheless maintains that the “only substantively reasonably sentence”

that the district court could have imposed was one “within the Guidelines range of 51 to

63 months,” and that the district court did not “properly” weigh applicable § 3553(a)

factors. Appellant’s Br. 15. As to the first point, the district court was not obliged to

sentence Brown within his Guidelines range, and we have already explained why a

variance was not substantively unreasonable in this case. See United States v. Cavera,

550 F.3d at 190 (explaining that reviewing court cannot “presume that a non-Guidelines

sentence is unreasonable, or require extraordinary circumstances to justify a deviation

from the Guidelines range” (internal quotation marks omitted)); United States v. Jones,

531 F.3d 163, 174 (2d Cir. 2008) (observing that “in the great majority of cases, a range

of sentences—frequently extending well beyond the narrow ranges prescribed by the

Guidelines—must be considered reasonable”). Brown’s contention that his background

and rehabilitative efforts should have been given greater weight mandates no different

conclusion because “the weight to be afforded any § 3553(a) factor is a matter firmly

committed to the discretion of the sentencing judge and is beyond our review, as long as

the sentence ultimately imposed is reasonable,” which it is here.       United States v.

Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008) (internal quotation marks omitted); see

United States v. Cavera, 550 F.3d at 191 (“[W]e do not consider what weight we would

ourselves have given a particular [§ 3553(a)] factor.”).

       Brown also argues that the district court was unduly influenced by its prior

imposition of a 15-year mandatory minimum career offender sentence pursuant to the

Armed Career Criminal Act, 18 U.S.C. § 924(e), as to which the government moved for

                                             4
resentencing in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Brown points

to nothing in the record suggesting such improper consideration by the district court.

Rather, he relies on the prosecutor’s remarks at resentencing: “[T]he defendant

acknowledges he got a significant break already under Johnson. He was an appropriate

candidate for armed career criminal, an appropriate [candidate] for 15 years.        That

sentence is no longer applicable, but I think the defendant’s record speaks volumes about

[him].” Gov’t App’x 118. These statements were not inaccurate, nor did they urge the

district court to resentence Brown to the prior mandatory minimum sentence of 15 years.

Thus, we reject this aspect of Brown’s sentencing challenge as meritless.

      Finally, Brown contends that his sentence was “shockingly high, when compared

to similarly situated defendants” convicted of firearms possession. Appellant’s Br. 22.

The argument merits little discussion because Brown did not “provide sufficient

information to compel the district court to find that [other defendants] were so similarly

situated to himself that any disparity in sentence would be unwarranted.” United States

v. Broxmeyer, 699 F.3d at 296–97. “Even if he had been able to make such a showing,”

that would not necessarily render his sentence substantively unreasonable because the

disparity referenced in “§ 3553(a)(6) is only one of several factors that must be weighted

and balanced, and how that is done is a matter that remains firmly committed to the

discretion of the sentencing judge.”    Id. at 297 (internal quotation marks omitted).

Because the district court did not exceed that discretion here, the sentence imposed was

not substantively unreasonable.



                                            5
      We have considered Brown’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




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