     10-2210-cr
     United States of America v. Martini (Cassesse)

1                                      UNITED STATES COURT OF APPEALS

2                                              FOR THE SECOND CIRCUIT

3                                                     August Term 2011

4    Argued: April 3, 2012                                          Decided: July 11, 2012

5                                               Docket No. 10-2210-cr

 6   - - - - - - - - - - - - - - - - - - - - - - - -
 7   UNITED STATES OF AMERICA,
 8             Appellee,
 9
10                                        V.
11
12   MICHAEL CASSESSE,
13             Defendant-Appellant.1
14   - - - - - - - - - - - - - - - - - - - - - - - -

15   Before: NEWMAN, KATZMANN, and PARKER, Circuit Judges.

16              Appeal from the June 19, 2009, judgment of the United States

17   District Court for the Eastern District of New York (Sandra L. Townes,

18   District          Judge),          sentencing         the   Defendant   for   a    racketeering

19   conviction and for violation of supervised release.                               The Defendant

20   contends that twelve months of imprisonment imposed for the supervised

21   release violation should have been subtracted from the lifetime term

22   of supervised release.

23              Affirmed.

24                                                        Bradley W. Moore, New Haven, Conn.
25                                                             (James I. Glasser, Wiggin and
26                                                             Dana LLP, New Haven, Conn., on
27                                                             the   brief),  for   Defendant-
28                                                             Appellant.
29
30

            1
             The Clerk is directed to change the official caption.
     1                                    Amy Busa, Asst. U.S. Atty., New York,
     2                                         N.Y. (Loretta E. Lynch, U.S.
     3                                         Atty. for the Eastern District of
     4                                         New York, Peter A. Norling, Asst.
     5                                         U.S. Atty., New York, N.Y., on
     6                                         the brief), for Appellee.
     7

     8    JON O. NEWMAN, Circuit Judge.

 9            This appeal presents primarily the almost metaphysical issue of

10       how, if at all, a lifetime term of supervised release, imposed for a

11       supervised release violation, should be reduced by the number of

12       months of a prison term imposed for that violation, a subtraction we

13       are willing to assume is required by the literal terms of the

14       provisions governing supervised release.    Defendant-Appellant Michael

15       Cassesse appeals from the June 19, 2009, judgment of the District

16       Court for the Eastern District of New York (Sandra L. Townes, District

17       Judge) revoking his lifetime term of supervised release and sentencing

18       him to a term of twelve months in prison followed by a renewed

19       lifetime term of supervised release.     We affirm.

20                                    Background

21            In 1987, Cassesse was convicted of conspiracy to distribute

22       heroin and sentenced to five years’ probation. In 1991, he was

23       convicted of possession with intent to distribute more than 500 grams

24       of heroin and sentenced to 87 months of imprisonment, a consecutive

25       term of 87 months for violating his probation, and a lifetime term of

26       supervised release, the maximum possible term of supervised release
27       under the statute. See 21 U.S.C. § 841(b)(1)(B) (1991).     One of the

28       conditions of supervised release was that Cassesse refrain from new

29       criminal conduct.

                                            -2-
 1         In 2007, while Cassesse was out of prison but continuing to serve

 2   his term of supervised release, he was indicted on several new

 3   charges, including racketeering in violation of 18 U.S.C. § 1962.

 4   Cassesse was subsequently charged with violating a condition of

 5   supervised release by committing a new crime.                 Following his guilty

 6   plea to the racketeering charge, the District Court sentenced Cassesse

 7   for   both the racketeering conviction and the supervised-release

 8   violation.

 9         Speaking with respect to the racketeering offense, Judge Townes

10   noted that she had considered all of the submitted documents, all of

11   the statements made by the defense, the United States Sentencing

12   Guidelines (“the Guidelines”), and the factors enumerated by 18 U.S.C.

13   § 3553(a), including the Defendant’s history and characteristics, the

14   nature of the crime committed, and the need for specific and general

15   deterrence.    Judge Townes noted that Cassesse’s racketeering offense

16   was a violation of his term of supervised release:
17         He committed the crime to which he pled guilty [ i.e.,
18         racketeering] while serving . . . a term of supervised
19         release. Mr. Cassesse’s difficulties in life do not relieve
20         him of his responsibilities for [the consequences of]
21         continuing to commit crimes. [Yet] he does not seem
22         inclined to stop. . . . I truly don’t think Mr. Cassesse
23         has fully accepted responsibility for his criminal conduct.
24         I believe he’s just been caught.
25
26         The    District   Court   imposed       a    sentence     of   90 months of

27   imprisonment     and    three   years    of       supervised    release   for   the

28   racketeering crime.

29         Judge Townes next turned to the violation of supervised release.

30   At this point the parties presented to the Court a plea agreement, in

                                             -3-
 1   which Cassesse apparently agreed to plead guilty to the supervised

 2   release violation in exchange for the Government’s recommendation that

 3   any additional prison term for that violation be served concurrently

 4   with the 90-month racketeering sentence.            The parties agreed that the

 5   relevant advisory range for the supervised release violation was six

 6   to twelve months of imprisonment.

 7        The District Court accepted Cassesse’s guilty plea but rejected

 8   the parties’ recommendation of a concurrent term, imposing instead a

 9   sentence of twelve months of imprisonment for the supervised release

10   violation   to   run   consecutively     to   the    90   month   term   for   the

11   racketeering conviction.     Having revoked the previously imposed term

12   of lifetime supervised release for the narcotics violation, the

13   District Court then imposed a new lifetime term of supervised release.

14        Although Judge Townes provided no detailed explanation for the

15   sentence for the supervised release violation, she stated, “I have

16   reviewed everything.”     At the conclusion of the hearing, defense

17   counsel objected to the lifetime term of supervised release but did

18   not object either to the Court’s failure to subtract the twelve month

19   term of imprisonment from it or to the brevity of the Court’s

20   explanation of that term.

21                                   Discussion

22   A.   Standard of Review

23        On appeal, sentences may be challenged for substantive and
24   procedural reasonableness. See United States v. Verkhoglyad, 516 F.3d
25   122, 127 (2d Cir. 2008).    Cassesse argues on appeal that the lifetime


                                            -4-
 1   term of supervised release should somehow have been reduced by twelve

 2   months,    which   is   a   substantive       objection   to   the   length   of   the

 3   sentence.    Although Cassesse did not specifically object in the

 4   District Court to the lack of a twelve month reduction, we will assume

 5   that his general objection to the length of the new lifetime term

 6   comprehended this point.        Because this claim presents a question of

 7   statutory interpretation, we review the District Court’s decision de

 8   novo.    See United States v. Aleynikov, 676 F.3d 71, 76 (2d Cir. 2012).

 9        Cassesse also complains that the District Court inadequately

10   explained its reasons for the lifetime term, which is a procedural

11   objection, and in the absence of any objection in the District Court,
12   plain error review applies. See United States v. Villafuerte, 502 F.3d
13   204, 208, 211 (2d Cir. 2007) (holding that “rigorous” plain error

14   analysis applies to unpreserved claims of procedural sentencing error

15   under 18 U.S.C. § 3553(a) and (c)).2

16   B. Whether and How to Reduce the Lifetime Term of Supervised Release

17        Cassesse contends that the District Court erred when, after

18   revoking his previously imposed term of lifetime supervised release


          2
             Although we have questioned the appropriateness of plain error

     review where a sentencing error allegedly increased a sentence, see

     United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002), we see

     no reason to weaken the plain error standard where a court has

     allegedly inadequately fulfilled a long-standing and uncomplicated

     procedural requirement of sentencing. See Villafuerte, 502 F.3d at

     208, 211.

                                               5
 1   for   his   narcotics   violation,    it    imposed both twelve months of

 2   imprisonment and a new lifetime term of supervised release for the

 3   supervised release violation.        More specifically, he contends that the

 4   District Court was required by statute to deduct the former from the

 5   latter, limiting the supervised release term to something at least

 6   twelve months less than the “lifetime” maximum authorized for the

 7   narcotics violation for which his original term of supervised release

 8   was imposed.

 9         Sentencing for a violation of supervised release is governed by

10   18 U.S.C. § 3583.    The parties agree that the relevant form of section

11   3583 is the one that was in force in 1991, at the time that Cassesse
12   was sentenced to his original lifetime term of supervised release. See
13   United States v. Smith, 354 F.3d 171, 172 (2d Cir. 2003).        The version

14   of section 3583 in effect in 1991 provides in relevant part:

15         The court may . . . revoke a term of supervised release, and
16         require the person to serve in prison all or part of the
17         term of supervised release without credit for time
18         previously served on postrelease supervision, if it finds by
19         a preponderance of the evidence that the person violated a
20         condition of supervised release . . . .
21
22   18 U.S.C. § 3583(e)(3) (1991).         The 1991 version is silent on the

23   question of whether a renewed term of supervised release may be

24   imposed in addition to a prison term as punishment for a supervised

25   release violation.      Interpreting this version of the statute, the
26   Supreme Court in Johnson v. United States, 529 U.S. 694 (2000),
27   concluded that a court may “revoke the release term and require

28   service of a prison term equal to the maximum authorized length of a

29   term of supervised release.” id. at 705.          Moreover, the Court added,

                                             6
 1   because a term of supervised release “continues . . . after revocation

 2   even when part of it is served in prison, . . . the balance of it []

 3   remain[s]    effective     as   a    term    of   supervised   release when the

 4   incarceration is over[.]”           Id. at 706.      As we have noted, section

 5   841(b)(1)(B) provided for the original term of supervised release and

 6   authorized a maximum term of lifetime supervised release.                   In 1994,

 7   before Johnson was decided, but after Cassesse was sentenced, Congress

 8   amended the supervised release provisions to provide explicitly that

 9   a renewed term of supervised release may be imposed for a supervised
10   release violation.       See Violent Crime Control and Law Enforcement Act
11   of 1994, Pub. L. No. 103-322, § 110505, 108 Stat. 1796, 2017, codified

12   at 18 U.S.C.    § 3583(h).      The amending language not only authorized a

13   renewed term of supervised release not to exceed the maximum allowable

14   for   the   underlying    violation,        but   also   introduced   the   concept,

15   relevant to this appeal, of a reduction of the maximum allowable term

16   of supervised release by the length of time spent in prison for the

17   supervised release violation.          The amendment added section 3583(h),

18   which provides:

19         When a term of supervised release is revoked and the
20         defendant is required to serve a term of imprisonment, the
21         court may include a requirement that the defendant be placed
22         on a term of supervised release after imprisonment. The
23         length of such a term shall not exceed the term of
24         supervised release authorized by statute for the offense
25         that resulted in the original term of supervised release,
26         less any term of imprisonment that was imposed upon
27         revocation of supervised release.
28
29    18 U.S.C. § 3583(h) (2012) (emphasis added).

30


                                                  7
 1        Both parties agree, in effect, that once the Supreme Court ruled

 2   in Johnson that a renewed term of supervised release may be imposed

 3   for violations that occurred under the 1991 version of section

 4   3583(e)(3), the imprisonment reduction concept of the later enacted

 5   section 3583(h) should apply to such a renewed term.                     The Appellant

 6   reasons as follows:

 7        Under current law, “[t]he length of such a term of
 8        supervised release shall not exceed the term of supervised
 9        release authorized by statute for the offense that resulted
10        in the original term of supervised release, less any term of
11        imprisonment that was imposed upon revocation of supervised
12        release.” 18 U.S.C. § 3583(h); see also USSG § 7B1.3(g)(2).
13        The law in effect when Mr. Cassesse committed his narcotics
14        offense is to the same effect, even though the underlying
15        statutory basis is different. As the Supreme Court stated,
16        under Section 3583(e):
17             [I]t is not a “term of imprisonment” that is to
18             be served, but all or part of “the term of
19             supervised release.” But if “the term of
20             supervised release” is being served, in whole or
21             part, in prison, then something about the term of
22             supervised release survives the preceding order
23             of revocation.
24
25        Johnson, 529 U.S. at 705. Thus, if some “part” of the term
26        of supervised release is served in prison after a violation,
27        then the “part” of the term that remains after that prison
28        sentence is served is less than the whole, original release
29        term.
30
31        . . .
32
33        Thus, the pre-1994 Section 3583(e) and the current Section
34        3583(h) are in accord on this point. That is, any reimposed
35        supervised-release term must be reduced by the length of the
36        prison term the defendant serves for the violation.
37
38   Brief of Appellant at 14-16 (footnote omitted).
39
40        The   Government   reaches   the       same     result   by    contending     that

41   although   “the   pre-1994   version        of   §    3583(e)      did    not   require

42   subtraction of the incarceratory sentence,” it did require that “the


                                             8
 1   combined term of supervised release and incarceration did not exceed

 2   the original term of supervised release.” Brief for Appellee at 26.

 3   Thus, for example, if the prior term of supervised release was ten

 4   years and the period of incarceration for the violation was one year,

 5   the only way the “combined term” could not exceed the original term is

 6   if the one year term of imprisonment is subtracted from the prior ten

 7   years of supervised release, yielding a maximum allowable renewed term

 8   of nine years.

 9        The intriguing question is whether and how the prison term

10   reduction concept applies to a renewed lifetime term of supervised

11   release.   The Government elides this question by converting the

12   subtraction concept into an addition concept.      It observes that

13   although Cassesse’s one year term in prison plus the renewed lifetime

14   term of supervised release “may equal the original lifetime term of

15   supervised release, they do not exceed it.” Id.

16        Cassesse advances the subtraction concept and insists that his

17   one year of imprisonment must somehow be subtracted from his lifetime

18   term of supervised release.   He suggests three techniques.   First, he

19   contends that the lifetime term should be abandoned in favor of a

20   fixed term of years from which the one year term of imprisonment would
21   be subtracted. See Brief for Appellant at 21.     Second, he suggests

22   that the lifetime term of supervised release should be converted to

23   the corresponding offense level 43 in the Sentencing Table of the

24   Sentencing Guidelines from which some appropriate reduction should be

25   made, after which the reduced offense level would presumably be

26   converted back into a term of years. Cf. United States v. Nelson, 491

                                       9
 1   F.3d 344, 349 (7th Cir. 2007) (affirming conversion of mandatory life

 2   sentence to offense level 43 and then reducing that level by 40

 3   percent to reflect substantial assistance).       Third, he suggests that

 4   one year could be subtracted from his life expectancy at the time of

 5   sentencing.3

 6        Intriguing as are the question and some possible answers to it,

 7   we conclude that the more appropriate course is simply to recognize

 8   that this is one of those rare situations where Congress did not

 9   expect the literal terms of its handiwork to be applied to a lifetime

10   term of supervised release, even if we assume that the subtraction

11   concept of section 3583(h) should be applied to a fixed term of

12   supervised release imposed under the pre-1994 version of section
13   3583(e)(3). Cf. Holy Trinity Church v. United States, 143 U.S. 457,
14   472 (1892) (statute prohibiting prepayment of transportation of alien

15   into United States to perform service of any kind held inapplicable to

16   church’s contract to bring resident of England to render service as

17   rector and pastor, even though contract was “within the letter” of

18   statute).


          3
           A variant of Cassesse’s third suggestion was offered by the

     Seventh Circuit, in the context of a reduction for substantial

     assistance from a mandatory life sentence.          That Court suggested

     making the substantial assistance reduction from 470 months, the

     average   life   expectancy   of   federal   defendants   at   the   time   of

     sentencing, as determined by the United States Census Bureau. See

     Nelson, 491 F.3d at 349-50.

                                          10
 1        First,      it    is    highly   unlikely      that   Congress    expected       the

 2   subtraction concept to be applied to a lifetime of supervised release.

 3   Second, even if a sentencing judge were to feel obliged to make a

 4   subtraction in some fashion, the judge could easily circumvent such a

 5   requirement by selecting a supervised release term of many years, 99

 6   for example, and then imposing a term of “only” 98 years.                    Third, use

 7   of the defendant’s life expectancy would introduce a variable bearing

 8   little, if any, relation to penological purposes for defendants who

 9   outlive    their      life   expectancy     and    would   introduce       reverse   age

10   discrimination.        We conclude that the unadjusted lifetime term of

11   supervised release was not unlawful. See United States v. Rausch, 638

12   F.3d 1296, 1303 (10th Cir. 2011) (“Because it is impossible to predict

13   the precise length of any individual’s life, a [supervised release]

14   sentence    of     ‘life      less    two   years     [imprisonment]’        has     only

15   conceptual–not practical–meaning.”). But see United States v. Shorty,

16   159 F.3d 312, 316 (7th Cir. 1998) (“[T]he maximum amount of supervised

17   release possible would have been life minus the amount of imprisonment

18   imposed    during      the    sentencing     for    revocation”;      no    method    of
19   subtraction suggested).4



          4
           We note that in a recent summary order,                   United States v.

     McNaught, 396 F. App’x 772 (2d Cir. 2010), our Court appeared to

     endorse Cassesse’s argument. See id. at 774 (stating that section

     3583(h) “required the district court to subtract Appellant’s term of

     30 months’ imprisonment from the maximum lifetime term of supervised

     release”). That statement, made without considering whether or how

                                                 11
1   C. Explanation of Sentence

2        Cassesse contends that the District Court committed procedural

3   error during the sentencing for his supervised release violation by

4   failing to consider the statutory factors required by 18 U.S.C.

5   § 3583(e) and by failing to explain the reasons for the sentence as

6   required by 18 U.S.C. § 3553(c).       The statutory requirements are set

7   out in the margin.5



    such a subtraction should be made, was dictum; the holding was that a

    five-year term of supervised release was lawful.                Moreover, the

    summary order in McNaught was non-precedential. See 2d Cir. I.O.P.

    32.1.1.


         5
          Section 3583(e) cross-references several subsections of section

    3553(a).   These are:



        (1)    the nature and circumstances of the offense and the

               history and characteristics of the defendant;

        (2)    the need for the sentence imposed--

               . . .

               (B)   to afford adequate deterrence to criminal conduct;

               (C)     to protect the public from further crimes of the

                       defendant; and

               (D)     to provide the defendant with needed educational

                       or vocational training, medical care, or other

                       correctional   treatment   in   the   most   effective

                                          12
1



                       manner;

               . . .

        (4)    the     kinds     of    sentence     and   the   sentencing   range

               established for--

               . . .

               (B)     in the case of a violation of . . . supervised

                       release,       the   applicable    guidelines   or    policy

                       statements issued by the Sentencing Commission

                       pursuant to section 994(a)(3) of title 28 . . . ;

        (5)    any pertinent policy statement . . . issued by the

               Sentencing Commission . . . that . . . is in effect on

               the date the defendant is sentenced[;]

        (6)    the need to avoid unwarranted sentence disparities

               among defendants with similar records who have been

               found guilty of similar conduct; and

         (7)   the need to provide restitution to any victims of the

               offense.

    18 U.S.C. § 3553(a).



         Section 3553(c) provides:



         The court, at the time of sentencing, shall state in open

         court the reasons for its imposition of the particular

         sentence.

                                               13
1         The District Court’s failure to explicitly consider the section

2    3553(a) factors does not rise to the level of plain error.                “As long

3    as the judge is aware of both the statutory requirements and the

4    sentencing range or ranges that are arguably applicable, and nothing

5    in the record indicates misunderstanding about such materials or

6    misperception about their relevance, we will accept that the requisite

7    consideration [required by 18 U.S.C. § 3583(e)] has occurred.” United

 8   States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005).               Here, there is

 9   every reason to believe that Judge Townes knew she had to consider,

10   and did consider, the relevant statutory factors.                 She thoroughly

11   considered nearly identical factors during her discussion of the

12   racketeering conviction that resulted from the same criminal acts.

13   During    that   discussion,    moreover,    she      commented    on   Cassesse’s

14   supervised release violation and how that violation affected her

15   overall    assessment   of    the   Defendant    as    an   unremorseful   repeat

16   offender.    Then, after turning specifically to the supervised release

17   violation itself, in lieu of a detailed explanation she stated

18   generally, “I have reviewed everything.”              Finally, the record shows

19   that Judge Townes was aware of the appropriate policy statements and

20   the relevant advisory terms of imprisonment.

21        The    explanation      requirement    of     section    3553(c) is also

22   sufficiently satisfied to preclude a finding of plain error.               Section

23   3553(c) requires no specific formulas or incantations; rather, the

24   length and detail required of a district court’s explanation varies
25   according to the circumstances. See Villafuerte, 502 F.3d at 210.
26   Where, as here, the sentence concerns a violation of supervised

                                            14
 1   release and the ultimate sentence is within the recommended range ,

 2   compliance with the statutory requirements can be minimal.                   See

 3   Verkhoglyad, 516 F.3d at 132-33 (“[A] court’s statement of its reasons

 4   for going beyond non-binding policy statements in imposing a sentence

 5   . . . need not be as specific as has been required when courts

 6   departed from guidelines . . . .” (emphases original)); Villafuerte,

 7   502 F.3d at 210 (“When the district court imposes a Guidelines

 8   sentence, it may not need to offer a lengthy explanation . . . .”).

 9   Furthermore, section 3553(c) has likely been satisfied when a court’s

10   statements meet the goals “of (1) informing the defendant of the

11   reasons for his sentence, (2) permitting meaningful appellate review,

12   (3)   enabling   the   public    to   learn   why   the   defendant   received   a

13   particular sentence, and (4) guiding probation officers and prison
14   officials in developing a program to meet the defendant’s needs.” Id.
15         The District Court adequately fulfilled its duties under the

16   statute, and the error, if any, was not plain.              First, Judge Townes

17   briefly described some reasons for her supervised release violation

18   sentence,   stating    that     she   would not reduce the sentence for

19   Cassesse’s cooperation because she had already given him credit for

20   that in her racketeering sentence and noting that Cassesse differed

21   from his co-defendants because he was the only one with a violation of

22   supervised release.      Second, and more importantly, Judge Townes’s

23   intertwined analysis of the supervised release violation and the

24   racketeering crime clearly provided a sufficient explanation of the

25   sentence she ultimately imposed for the violation.

26

                                             15
 1        United States v. Lewis, 424 F.3d 239 (2d Cir. 2005), upon which

2    Cassesse principally relies, involved quite different circumstances.

 3   First, in Lewis the District Court imposed a sentence above that

 4   recommended by the relevant Sentencing Commission policy statements,

 5   triggering a higher descriptive obligation on the part of the District

 6   Court.   Id. at 245; see 18 U.S.C. § 3553(c)(2) (requiring district

 7   court to provide “the specific reason for the imposition of a sentence

 8   different from that described” in the relevant policy statements or
 9   Guidelines).   Second, unlike inLewis, Judge Townes provided a lengthy
10   explanation, albeit one that technically occurred during the

11   discussion of a different (but closely related) crime.

12                                 Conclusion

13        For the foregoing reasons, the judgment of the District Court is

14   affirmed.

15

16




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