12-1672-cr
United States v. Logan


                 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 APPELLAT E 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 (WIT H THE NOTATION “SUMMARY ORDER”).      A PARTY
CITING TO 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 18th day of April, two thousand thirteen.

PRESENT:   JOHN M. WALKER, JR.,
           DENNY CHIN,
                     Circuit Judges,
           JANE A. RESTANI,
                     Judge.*

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UNITED STATES OF AMERICA,
                    Appellee,

                         -v.-                          12-1672-cr

MARIA LOGAN,
                         Defendant-Appellant.

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FOR APPELLEE:                       DAVID T. HUANG (Robert M. Spector,
                                    on the brief), Assistant United
                                    States Attorneys, for David B.
     *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
                               Fein, United States Attorney for
                               the District of Connecticut, New
                               Haven, Connecticut.

FOR DEFENDANT-APPELLANT:       BRIAN E. SPEARS (Janna D.
                               Eastwood, on the brief), Levett
                               Rockwood, P.C., Westport,
                               Connecticut.

          Appeal from the United States District Court for the

District of Connecticut (Covello, J.).

          UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Defendant-appellant Maria Logan was convicted,

following a guilty plea, of conspiracy to commit mail and wire

fraud, in violation of 18 U.S.C. § 1349.    At sentencing, Logan

argued that extraordinary family circumstances and her history

as an exemplary foster parent warranted a downward departure, a

variance, or both.   The district court, however, implicitly

denied that motion when it principally sentenced her to twenty-

four months' imprisonment, a sentence within the applicable

Guidelines range.    We assume the parties' familiarity with the

underlying facts, the procedural history, and the issues on

appeal.

          On appeal, Logan contends that her sentence was

neither procedurally nor substantively reasonable.    We apply a

reasonableness standard -- "a particularly deferential form of


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abuse-of-discretion review," United States v. Cavera, 550 F.3d

180, 187-88 & n.5 (2d Cir. 2008) (en banc) -- to both the

procedural and substantive sentencing challenges, see United

States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012).

A.   Procedural Reasonableness

         Logan first received a draft plea agreement in May

2011, which included a three-point reduction for acceptance of

responsibility.   When, by late October 2011, Logan had not

accepted that proposed agreement, the government withdrew it and

offered a less favorable alternative, with only a two-point

reduction for acceptance of responsibility.   The government

contends that, in the intervening five months, it had been

required to prepare for trial and expend certain resources.

Logan argues that the district court should have granted her

this third-point reduction.

         A defendant who "clearly demonstrates acceptance of

responsibility for his offense" is eligible for a two-level

reduction in the offense level calculation.   U.S. Sentencing

Guidelines Manual ("U.S.S.G.") § 3E1.1(a).    A defendant may

receive a third-point reduction if "the defendant has assisted

authorities in the investigation or prosecution of his own

misconduct by timely notifying authorities of his intention to

enter a plea of guilty, thereby permitting the government to
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avoid preparing for trial and permitting the government and the

court to allocate their resources efficiently."     Id. § 3E1.1(b).

Generally, "a government motion is a necessary prerequisite to

the granting of the third point."    United States v. Lee, 653

F.3d 170, 173 (2d Cir. 2011) (internal quotation marks omitted);

see also U.S.S.G. § 3E1.1 cmt. n.6 ("[T]he Government is in the

best position to determine whether the defendant has assisted

authorities in a manner that avoids preparing for

trial . . . .").

         Absent a government motion, however, a district

court's authority to grant the third point is limited; it may

only do so if the government's motive for not making the motion

was unconstitutional or if the government acted in bad faith.

See Lee, 653 F.3d at 173; United States v. Sloley, 464 F.3d 355,

360-61 (2d Cir. 2006).   Logan's brief on appeal, however, does

not allege a constitutional violation or argue bad faith.    To

the contrary, she argues only that "the Government's refusal to

make a motion was unreasonable under the circumstances."     See

App. Br. at 32-33 (emphasis added).    After affording "great

deference" to the district court, see U.S.S.G. § 3E1.1 n.5 ("The

sentencing judge is in a unique position to evaluate a

defendant's acceptance of responsibility."), we find no error in



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the decision to limit Logan's reduction for acceptance of

responsibility to two points.

            Logan further argues that the district court

inadequately explained its reasoning for Logan's sentence.       The

district court judge is granted "very wide latitude" to craft an

appropriate sentence.     Cavera, 550 F.3d at 188.   Nevertheless, a

court "errs procedurally if it does not consider the § 3553(a)

factors, or . . . fails adequately to explain its chosen

sentence."     Id. at 190 (internal citation omitted).   Generally,

however, "we presume . . . that a sentencing judge has

faithfully discharged her duty to consider the statutory

factors."     United States v. Fernandez, 443 F.3d 19, 30 (2d Cir.

2006).

            At sentencing, Logan's counsel made arguments for both

a variance under the statutory factors and a departure under the

Guidelines.     The government then responded, arguing that no

extenuating circumstances warranted a departure or a variance.

Finally, after hearing from Logan and others speaking on her

behalf, the district court stated on the record that it had

considered the presentence report ("PSR"), the arguments of both

parties (including their sentencing memoranda), the statements

made in court, "together with the factors set forth in Title 18

of United State Code Section 3553."     It also expressly adopted
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the findings of the PSR in its statement of reasons attached to

the judgment.    See United States v. Watkins, 667 F.3d 254, 261

(2d Cir. 2012) (a district court makes sufficient findings of

fact by explicitly adopting the factual findings in the PSR).

            A fuller explanation of its reasoning would have been

helpful.    See United States v. Buissereth, 638 F.3d 114, 116-18

(2d Cir. 2011) (although court "should have . . . explained its

sentence in open court," affirming sentence because court had

stated on record that it had "[taken] into account everything

that was said and the records in this case and of course all of

[defendant's counsel's] eloquent arguments" and adopted PSR

findings in the judgment).     We do not demand, however, "robotic

incantations . . . to prove the fact of consideration" of these

factors.    Fernandez, 443 F.3d at 30 (internal quotation marks

omitted).    Thus, a failure to address each argument or each

factor individually is not itself error.     See id. at 30-31.

            Logan's final assertion is that the district court

erred by denying certain downward departures for family

circumstances and prior good works.     See U.S.S.G. §§ 5H1.6,

5H1.11.     A district court's decision not to grant a downward

departure is generally not appealable unless the defendant

provides "clear evidence of a substantial risk that the judge

misapprehended the scope of his departure authority."     United
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States v. Clark, 128 F.3d 122, 124 (2d Cir. 1997) (internal

quotation marks and citation omitted).    Absent such evidence, we

presume that the district court understood its authority to

depart.   United States v. Stinson, 465 F.3d 113, 114 (2d Cir.

2006) (per curiam).

          Although Logan argues that, because the district court

did not address the departure on the record, there is ambiguity

as to whether the district court knew it could depart in this

case, she provides no evidence to support that allegation beyond

the district court's silence.    That is plainly insufficient to

carry her burden.     See United States v. Scott, 387 F.3d 139, 143

(2d Cir. 2004) (noting that district court "is not obliged to

give reasons for refusing to depart" and affirming sentence

where counsel had moved for departure at sentencing, government

responded, then court sentenced defendant without explicitly

addressing the motion); United States v. Lawal, 17 F.3d 560,

563-64 (2d Cir. 1994) ("[A] district court's silence concerning

its refusal to depart downward does not support an inference

that the district court misapprehended its scope of

authority.").   Moreover, the parties presented detailed

arguments to the district court, orally and in writing, on the

family circumstances and Logan's history as a foster parent, and

the record makes clear that the district court considered these
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arguments.   Hence, we conclude that its denial of Logan's

departure motions is not appealable.

          For the reasons described above, we conclude that the

district court committed no procedural error.

B.   Substantive Reasonableness

          Logan also argues that her twenty-four month sentence

was substantively unreasonable.   This challenge also fails.        Our

review for substantive reasonableness is "particularly

deferential."   Bronxmeyer, 699 F.3d at 289.     We will only set

aside a district court's substantive determination in

exceptional cases, see Cavera, 550 F.3d at 189, and only then if

the sentence is "shockingly high, shockingly low, or otherwise

unsupportable as a matter of law," Bronxmeyer, 699 F.3d at 289

(quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir.

2009)).

          This is not such a case.   The Guidelines range, as

calculated by the district court was twenty-four to thirty

months' imprisonment.   Logan played a minor role in the mortgage

fraud conspiracy, but she still secured five fraudulent

mortgages, resulting in a loss of nearly $800,000, and was

personally paid $27,000 for her services.      She also fraudulently

refinanced her home and submitted fraudulent tax returns,

neither of which formed part of the offense conduct.     Moreover,
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as discussed above, the record demonstrates that the district

court weighed Logan's family circumstances, her work as a foster

parent, and other mitigating factors before deciding to impose a

sentence at the bottom of the Guidelines range.    Although a

Guidelines sentence is not presumptively reasonable, see Cavera,

550 F.3d at 190, under the circumstances here, the twenty-four

month sentence was not shockingly high or otherwise

unsupportable as a matter of law.    Thus, we conclude that

Logan's sentence was substantively reasonable.

                          *    *      *

         We have considered Logan's remaining arguments and

conclude they are without merit.    For the foregoing reasons, we

AFFIRM the judgment of the district court.

                              FOR THE COURT:
                              Catherine O'Hagan Wolfe, Clerk




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