         12-43-cr
         United States v. Monroe

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 9th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges,
 9                DAVID G. LARIMER,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      -v.-                                                12-43-cr
19
20       COREY CAIN,
21
22                                     Defendant,
23
24       TERENCE MONROE,
25
26                                     Defendant-Appellant.
27
28


                *
                The Honorable David G. Larimer, of the United States
         District Court for the Western District of New York, sitting by
         designation.
 1   FOR APPELLEE:      Katherine Polk Failla, Brendan R.
 2                      McGuire, Brent S. Wible, Assistant United
 3                      States Attorneys, for Preet Bharara,
 4                      United States Attorney for the Southern
 5                      District of New York, New York, NY.
 6
 7   FOR APPELLANT:     Michael Hueston, New York, NY.
 8
 9        Appeal from the United States District Court for the
10   Southern District of New York (Wood, J.).
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the United States District

14   Court for the Southern District of New York is AFFIRMED.

15       Defendant-Appellant Terence Monroe (“Monroe”) appeals

16   from a December 13, 2011 judgment of the United States

17   District Court for the Southern District of New York (Wood,

18   J.) revoking Monroe’s supervised release and sentencing him

19   to nine months’ imprisonment and four years’ supervised

20   release.   The district court found by a preponderance of the

21   evidence that Monroe had violated three specifications of

22   his supervised release: (1) using a controlled substance,

23   (2) leaving a halfway house without permission, and (3)

24   failing to attend court-ordered counseling sessions.     The

25   panel has reviewed the briefs and the record in this appeal

26   and agrees unanimously that oral argument is unnecessary

27   because “the facts and legal arguments [have been]

28   adequately presented in the briefs and record, and the

                                   2
1    decisional process would not be significantly aided by oral

2    argument.”   Fed. R. App. P. 34(a)(2)(C).   We assume the

3    parties’ familiarity with the underlying facts, the

4    procedural history, and the issues presented for review.

5        We review a district court’s finding of a violation of

6    supervised release for an abuse of discretion and the

7    court’s factual findings for clear error.    See United States

8    v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006).     Monroe

9    challenges the district court’s ruling on two grounds.

10   First, Monroe argues that the court made clear factual

11   errors in determining that he had violated the terms of his

12   supervised release.   With respect to the first

13   specification, Monroe contends that the government failed to

14   show that Monroe had used marijuana since his previous court

15   date on October 18, 2011.   This argument fails because the

16   exact timing of the violation is irrelevant as the

17   government showed that the violation occurred as charged

18   “[o]n or before October 26, 2011.”   Moreover, at the

19   district court’s hearing, Monroe explicitly admitted to

20   using marijuana while on supervised release.

21       With respect to the second specification, Monroe

22   testified at the hearing that he was told to leave the

23   halfway house after a verbal altercation over smoking


                                   3
1    cigarettes.     The district court reasonably credited the

2    testimony of Probation Officer Elisha Rivera (“Rivera”) that

3    Monroe had not been discharged at the time he left the

4    halfway house.     “We accord strong deference to a district

5    court’s credibility determinations, particularly where that

6    court based its findings on such determinations.”     Carlton,

7    442 F.3d at 811 (citation omitted).     The court also credited

8    Rivera’s testimony regarding the third violation—Monroe’s

9    failure to attend counseling sessions.     Rivera testified

10   that she checked in with Monroe’s counselor after each

11   scheduled session to verify his attendance and that he had

12   “missed most of the sessions, if not all” since early

13   November 2011.

14       Second, Monroe argues that his sentence was

15   unreasonable.     The district court has “broad discretion” to

16   sentence a defendant for a violation of supervised release

17   and is guided by “non-binding policy statements” found in

18   Chapter Seven of the United States Sentencing Guidelines

19   Manual.   See United States v. Pelensky, 129 F.3d 63, 69 (2d

20   Cir. 1997).     The district court here had discretion to

21   sentence Monroe for a term of up to five years in prison

22   because Monroe’s underlying conviction was a Class A Felony

23   (conspiracy to distribute at least fifty grams of cocaine


                                     4
1    base).   18 U.S.C. § 3583(e)(3) (2008).   After conducting a

2    thorough hearing, the district court imposed the sentence

3    recommended by the United States Probation Office of nine

4    months’ imprisonment, which falls within Chapter Seven’s

5    specified range of three to nine months, U.S.S.G. §

6    7B1.4(a), and four years’ supervised release.   This sentence

7    is neither procedurally nor substantively unreasonable in

8    light of the court’s well-supported findings.

9        For the foregoing reasons, the judgment of the district

10   court is hereby AFFIRMED.

11
12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15




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