08-5961-cr
United States v. Parnell

                                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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 16th day of May, two thousand eleven.

PRESENT:
            JON O. NEWMAN,
            GUIDO CALABRESI,
            PETER W. HALL,
                        Circuit Judges.
______________________________________________

UNITED STATES OF AMERICA,
                                            Appellee,

                           v.                                 No. 08-5961-cr

RONNIE PARNELL,
                              Defendant-Appellant.
______________________________________________

FOR APPELLANT:                              LISA A. PEEBLES, First Assistant Federal Public Defender
                                            (James P. Egan, Research and Writing Specialist, on the
                                            brief), for Alexander Bunin, Federal Public Defender,
                                            Syracuse, New York.

FOR APPELLEE:                               ELIZABETH S. RIKER, Assistant United States Attorney
                                            (John M. Katko, Assistant United States Attorney, of
                                            counsel), for Richard S. Hartunian, 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 (Mordue, C.J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Ronnie Parnell was convicted following a guilty plea to one count

of conspiracy to engage in racketeering in violation of 18 U.S.C. § 1962(d). The district court

imposed a below-Guidelines sentence of 45 months’ imprisonment and four years of supervised

release. The court subsequently reduced Parnell’s sentence to 37 months’ imprisonment

pursuant to the crack-cocaine Guidelines amendment, see U.S.S.G. § 2D1.1, and he was released

to supervision on April 11, 2008. Parnell having been subject to two hearings regarding

revocation of supervised release and having committed a total of seven violations of his

conditions of supervised release, the district court again sentenced Parnell but this time to an

above-Guidelines sentence of 50 months’ imprisonment with no supervised release. Following a

prior proceeding, this Court remanded the case to the district court for, inter alia, the entry of a

written statement of reasons required by 18 U.S.C. § 3553(c)(2) for imposing a non-Guidelines

sentence. On July 26, 2010, the district court supplied a written statement of reasons. This

appeal followed. The sole issue before us is whether Parnell’s above-Guidelines sentence is

substantively unreasonable. We assume the parties’ familiarity with the facts and procedural

history of the case.

       We review sentences for violations of supervised release—as we do all sentences—for

reasonableness, which amounts to review for “abuse of discretion.” United States v. Cavera, 550

F.3d 180, 187, 189 (2d Cir. 2008) (in banc), cert. denied, 129 S. Ct. 2735 (2009). As this court

has made plain, “[a] sentencing judge has very wide latitude to decide the proper degree of


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punishment for an individual offender and a particular crime,” 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.” Id. at 188-89 (emphasis and

internal quotation marks omitted). Thus, while the parsimony clause requires a district court to

impose “a sentence sufficient, but not greater than necessary,” to comply with statutory

objectives, 18 U.S.C. § 3553(a), we review the sentence actually imposed only for

reasonableness. See United States v. Williams, 475 F.3d 468, 476-77 (2d Cir. 2007). “Although

the brevity or length of a sentence can exceed the bounds of ‘reasonableness,’ we anticipate

encountering such circumstances infrequently.” United States v. Fleming, 397 F.3d 95, 100 (2d

Cir. 2005). We conclude that this is not one of those rare cases.

       In urging us to hold otherwise, Parnell submits that because his supervised release

violations stemmed solely from his drug addiction, a sentence more than six times above the

bottom of the Guidelines range and 10 months less than the statutory maximum cannot be

supported by the record in this case. Parnell does not argue on appeal that his sentence was

unreasonable due to the court’s failure to place him back on supervision and into drug

rehabilitation. Instead, his argument is principally that his sentence is excessive because it is

greater than necessary to deter his future criminal conduct, especially because the district court

nowhere indicated that a sentence below 50 months’ imprisonment would fail to achieve the

same goal.

       We find Parnell’s arguments unpersuasive and identify no basis to conclude that his

sentence is substantively unreasonable. In this case, the district court sentenced a defendant with

a significant criminal history who was appearing at a hearing for the second time within four


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months to respond to charges of multiple violations of his conditions of supervised release. We

note that at the first revocation hearing the district court, in imposing inpatient rehabilitation as

opposed to the suggested Guidelines sentence of eight to fourteen months, specifically warned

Parnell that if he again violated his conditions of supervised release the court would sentence

him to five more years in prison. Although Parnell informed the court that he understood his

situation, he nonetheless failed to take advantage of the court’s leniency and again violated his

conditions of supervised release.

       As the parties further acknowledge, the district court also considered that Parnell had

been given the benefit of a substantial departure for his cooperation in connection with his

sentence on the underlying racketeering charge. See U.S.S.G. § 7B1.4, cmt. n.4 (“Where the

original sentence was the result of a downward departure (e.g., as a reward for substantial

assistance), . . . an upward departure may be warranted.”). Despite the court’s repeated leniency,

however, Parnell continued to use drugs and refused to change the lifestyle that had led to his

past criminal conduct.

       The district court was also clear in its written statement of reasons that it imposed an

above-Guidelines sentence based on Parnell’s breach of trust. The court explained that Parnell’s

conduct

       demonstrat[ed] an inability to comply with the terms of supervised release. This
       includes [Parnell’s] continued drug use, failure to participate in substance abuse
       treatment, decision to walk away from a long-term, treatment-based, residential
       halfway house program, and failure to report for drug testing. The Court also
       considered the lack of respect [Parnell] had for the probation office or the efforts
       made by the probation officer to help him, as well as [his] need to be in an
       environment where he must conform to the rules.

Indeed, Parnell’s actions demonstrate that unless he was incarcerated he would continue to break

the law.

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       Finally, we note that the issue before us is not whether we “might reasonably have

concluded that a different sentence [for Parnell] was appropriate.” Gall v. United States, 552

U.S. 38, 51, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). Instead, we consider only “whether the

sentence imposed falls within the broad range that can be considered reasonable,” United States

v. Jones, 531 F.3d 163, 174 (2d Cir. 2008), and, therefore, in reviewing Parnell’s sentence we

must “exhibit restraint, not micromanagement,” Fleming, 397 F.3d at 100. In light of the

foregoing and the record before us, we cannot say that Parnell’s sentence was unreasonable.

       We have considered Parnell’s other contentions on this appeal and find them to be

without merit. For the reasons stated, the judgment of the district court is AFFIRMED.



                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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