17-1510-cr
United States v. Moore

                                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
26th day of February, two thousand eighteen.

PRESENT:          JOHN M. WALKER, JR.,
                  PETER W. HALL,
                  RAYMOND J. LOHIER, JR.,

                                    Circuit Judges.
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UNITED STATES OF AMERICA,

                                    Appellee,

                           v.                                                      No. 17-1510-cr

KEVIN MOORE, SR.,

                                    Defendant-Appellant.

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FOR APPELLANT:                                        Lisa A. Peebles, Federal Public Defender, Melissa A.
                                                      Tuohey, Assistant Federal Public Defender, Office
                                                      of the Federal Public Defender, Syracuse, New York.

FOR APPELLEE:                                         Rajit S. Dosanjh, Assistant United States Attorney,
                                                      for Grant C. Jaquith, Interim United States Attorney
                                                      for the Northern District of New York, Syracuse,
                                                      New York.

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

New York (Brenda K. Sannes, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant Kevin Moore, Sr., who is presently serving a 78-month prison term for bank

robbery, in violation of 18 U.S.C. § 2113(a), appeals from a judgment of conviction.         Moore

argues that the 78 months’ imprisonment imposed is substantively unreasonable because the

district court did not account for all of the 18 U.S.C. § 3553(a) factors and placed too much weight

on his criminal history.   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.

       Our review of sentences for substantive reasonableness “amounts to review

for abuse of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc). In

determining whether a sentence imposed by the district court is substantively reasonable, we are

deferential and do not ask whether we would assign the same weight to a factor the district court

did, but rather whether that factor “can bear the weight assigned it under the totality of

circumstances in the case.” Id. at 191.     And “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.”    United States v. Ryan, 806 F.3d 691, 695 (2d Cir. 2015)

(alteration omitted) (quoting United States v. Wagner-Dano, 679 F.3d 83, 95 (2d Cir. 2012)).

“[W]hile we have declined to adopt a per se rule, we recognize that in the overwhelming majority

of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would

be reasonable in the particular circumstances.” Ryan, 806 F.3d at 695 (quoting United States v.

Ingram, 721 F.3d 35, 37 (2d Cir. 2013)).


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         Moore’s challenge to his 78-month sentence as substantively unreasonable fails.          The

term of imprisonment imposed was within the undisputed calculated Guidelines range.               The

record is clear that the district court considered the factors set forth in 18 U.S.C. § 3553(a),

including the abuse Moore suffered as a child, his substance abuse, his mental health, the fact he

was “motivated for substance abuse treatment, and motivated to learn coping skills”; and the fact

that he did once go “about two years without any criminal arrest.”         Appendix at 68.     But the

district court also took into account Moore’s multiple “convictions for robbery, burglary, and . . .

acts of violence” and “the need to protect the public from further crimes by [Moore].”       Appendix

at 68.   Moore’s criminal history in fact placed him in the highest criminal history category in the

relevant Presentence Report, the accuracy of which is undisputed by the parties.

         The district court understood the need “to impose a sentence that’s sufficient but not greater

than necessary to comply with” the purposes of 18 U.S.C. § 3553(a). Appendix at 68. The 78-

month sentence was well within its discretion.

         We have considered all of Moore’s remaining arguments and conclude that they are

without merit.    Accordingly, we AFFIRM the judgment of the district court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




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