     15-2830-cr
     United States v. Pecker

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of May, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RALPH K. WINTER,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
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12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-2830-cr
16
17       RICHARD DETKE,
18                Defendant,
19
20       CRAIG PECKER,
21                Defendant-Appellant.
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23
24       FOR APPELLEE:                         ALLEN L. BODE, Assistant United
25                                             States Attorney (Jo Ann M.
26                                             Navickas, Assistant United
27                                             States Attorney, on the brief),
28                                             of counsel for Robert L. Capers,

                                                  1
 1                              United States Attorney for the
 2                              Eastern District of New York,
 3                              Brooklyn, New York.
 4
 5   FOR APPELLANT:             EDWARD S. ZAS, of counsel for
 6                              Federal Defenders of New York,
 7                              Inc., Appeals Bureau, New York,
 8                              New York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Eastern District of New York (Wexler, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Defendant Craig Pecker appeals from the judgment of the
18   United States District Court for the Eastern District of New
19   York (Wexler, J.), revoking a five-year term of supervised
20   release and sentencing Pecker principally to eleven months’
21   imprisonment, upon a guilty plea to three violations of
22   supervised release (“VOSR”). The appeal is expedited
23   because Pecker’s term of imprisonment is expected to end on
24   June 23, 2016. We assume the parties’ familiarity with the
25   underlying facts, the procedural history, and the issues
26   presented for review.
27
28        In determining a defendant’s Sentencing Guidelines
29   range for a VOSR, the “criminal history category is the
30   category applicable at the time the defendant originally was
31   sentenced to a term of supervision.” U.S.S.G. § 7B1.4(a)
32   n.*. Pecker was sentenced to supervision (and, principally,
33   to ten years’ imprisonment, the mandatory minimum sentence)
34   in 2008, by United States District Judge Platt, following
35   Pecker’s guilty plea to cocaine distribution conspiracy.
36   The case was reassigned to Judge Wexler in November 2014,
37   for resolution of the VOSR allegations.
38
39        Pecker argues that Judge Wexler erred in using criminal
40   history category III to calculate his Guidelines range for
41   the VOSR sentencing, because (he claims) Judge Platt did not
42   determine at the original sentencing whether his criminal
43   history was category II (as argued by Pecker) or III (as
44   argued by the Probation Department). He further contends
45   that criminal history category I was in fact the applicable
46   category at the time of the original sentencing, and should
47   have been applied to calculate his Guidelines range at the

                                  2
 1   VOSR sentencing. See U.S.S.G. § 7B1.4 cmt. n.1 (“In the
 2   rare case in which no criminal history category was
 3   determined when the defendant originally was sentenced to
 4   the term of supervision being revoked, the court shall
 5   determine the criminal history category that would have been
 6   applicable at the time the defendant originally was
 7   sentenced to the term of supervision.”).
 8
 9        Pecker did not raise this argument below (his
10   then-counsel agreed that criminal history category III
11   applied), so it is reviewed for plain error.1
12
13        At Pecker’s 2008 sentencing hearing, Judge Platt did
14   not specify whether criminal history category II or III
15   applied. The statement of reasons filed as part of the
16   criminal judgment indicated that category III applied, and
17   adopted the PSR (with one amendment), which stated the same.
18   But even assuming (without deciding) that Judge Platt did
19   not thus “determine” Pecker’s criminal history category for
20   purposes of U.S.S.G. § 7B1.4(a), Pecker cannot show plain
21   error warranting vacatur of his sentence.2
22
23        This is because Pecker cannot demonstrate that he
24   suffered prejudice from Judge Wexler’s failure to determine
25   the criminal history category sua sponte. Three criminal
26   history points are properly attributed to Pecker’s three
27   harassment convictions under United States v. Morales, 239
28   F.3d 113 (2d Cir. 2000), on which Pecker relies to argue


         1
           “Plain error review requires a defendant to
     demonstrate that ‘(1) there was error, (2) the error was
     plain, (3) the error prejudicially affected his substantial
     rights, and (4) the error seriously affected the fairness,
     integrity or public reputation of judicial proceedings.’”
     United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)
     (quoting United States v. Flaharty, 295 F.3d 182, 195 (2d
     Cir. 2002)).
         2
           The government suggests in passing but does not press
     that the challenge to the criminal history category
     contained in the statement of reasons was waived because the
     original plea was subject to a plea agreement in which
     Pecker waived his appellate rights as to any sentence of 121
     months or below. For purposes of this appeal, we assume
     (without deciding) that Pecker did not thus waive the
     argument.
                                  3
 1   otherwise. Pecker’s harassment convictions (which were all
 2   originally charged as assault or assault with the intent to
 3   cause physical injury) are not “similar to” the listed
 4   misdemeanors and petty offenses excluded from counting by
 5   U.S.S.G. § 4A1.2(c)(1) (2007).3 Pecker did not strike a
 6   single blow of unknown severity in self-defense as did the
 7   defendant in Morales, but rather engaged in a culpable
 8   pattern of violence through the use of physical force. As
 9   to the first offense, Pecker kicked and bit his girlfriend,
10   causing physical injury (and leading the victim to obtain an
11   order of protection); as to the second, Pecker violated the
12   order of protection, and intentionally pushed his girlfriend
13   to the ground, causing her to injure her hand; and as to the
14   third, he grabbed his girlfriend around the throat and
15   choked her, broke down a door attempting to pull her into
16   the bedroom, pushed her down, and kicked her when she fell
17   to the floor--while she was six months pregnant.4 And
18   unlike in Morales, circumstances suggest a likelihood of
19   recidivism: multiple instances of similar violent conduct5;
20   and correlation of this conduct with substance abuse, which
21   is still a problem for Pecker and underlies his VOSR.
22
23        Two additional points are justified because Pecker
24   engaged in the cocaine distribution conspiracy while under

         3
           With a conviction for “harassment,” in which the
     statute punishes a broad range of conduct, a judge “must
     focus on the particular conduct of the defendant. In such
     circumstances, a sentencing judge making the ‘similar to’
     comparison is applying the guideline to the facts, a matter
     which we are to give ‘due deference.’” Morales, 239 F.3d at
     118 (quoting 18 U.S.C. § 3742(e)). We therefore do not
     suggest that our analysis of Pecker’s prior convictions is
     the only acceptable one. However, because Pecker is soon
     due to be released from his term of imprisonment, and
     because the issue was not raised below, we engage in that
     analysis for the first time on appeal.
         4
           Although Pecker was a minor when he first entered
     into this relationship (which might suggest lessened
     culpability, as he was abused as a matter of law by his
     adult girlfriend), he was of age at the time he committed
     these offenses.
         5
           Furthermore, Pecker admitted to the Probation
     Department that he frequently used physical force against
     his former girlfriend.
                                  4
 1   court supervision in the form of conditional discharge
 2   sentences for those three harassment convictions.6 A one-
 3   year conditional discharge sentence is the equivalent of a
 4   criminal justice sentence for purposes of U.S.S.G.
 5   § 4A1.1(d) “because there is no discernible difference
 6   between a conditional discharge sentence and a sentence of
 7   unsupervised release” and because the state court retains
 8   the power to revoke a conditional discharge sentence prior
 9   to its termination.7 United States v. Labella-Szuba, 92
10   F.3d 136, 138 (2d Cir. 1996); see also
11   U.S.S.G. § 4A1.1(d) & cmt. n.4 (2007); cf. United States v.
12   Ramirez, 421 F.3d 159, 163-67 (2d Cir. 2005) (concluding
13   that one-year conditional discharge sentence pursuant to
14   N.Y. Penal Law § 65.05 is the equivalent of a one-year
15   sentence of probation for purposes of U.S.S.G.
16   § 4A1.2(c)(1)(A) (2005)). These two points, added to the
17   three points for Pecker’s harassment convictions for a total
18   of five criminal history points, result in a criminal
19   history category III. Thus, Pecker has failed to meet the
20   plain-error test because he has not shown that Judge
21   Wexler’s failure to calculate his criminal history category
22   affected Pecker’s substantial rights.
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         6
           Pecker does not appear to dispute that, if his
     harassment convictions can be counted under § 4A1.2, the
     conditional discharge sentences serve as predicate for the
     § 4A1.1(d) two-point increase. See Reply Br. at 18-19.
         7
           Although the PSR is silent as to the duration of
     Pecker’s conditional discharge sentences, Pecker appears to
     concede that they were one year in duration. Reply Br. at
     10; see also N.Y. Penal Law § 65.05(3)(b) (contemplating
     one-year period of conditional discharge for harassment
     conviction); Ramirez, 421 F.3d at 163 n.2.
                                  5
 1        For the foregoing reasons, and finding no merit in
 2   Pecker’s other arguments, we hereby AFFIRM the judgment of
 3   the district court.
 4
 5                              FOR THE COURT:
 6                              CATHERINE O’HAGAN WOLFE, CLERK
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