13-349-cr, 13-1056-cr
United States v. Kestenbaum


                              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
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 27th day of January, two thousand fourteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         CHESTER J. STRAUB,
         RAYMOND J. LOHIER, JR.,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                              v.                                  Nos. 13-349-cr, 13-1056-cr

JOSHUA KESTENBAUM,

                              Defendant-Appellant.

________________________________________________

For Appellee:                        JAMES G. MCGOVERN, Assistant U.S. Attorney (David C.
                                     James, Ilene W. Jaroslaw, and Bonni J. Perlin, Assistant U.S.
                                     Attorneys, on the brief), for Loretta E. Lynch, U.S. Attorney
                                     for the Eastern District of New York, Brooklyn, NY

For Defendant-Appellant:             ALAN LEWIS (Michael Shapiro, on the brief), Carter Ledyard &
                                     Milburn LLP, New York, NY

       Appeal from the United States District Court for the Eastern District of New York
(Gershon, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED, but

REMANDED for the district court to add the intended attachment to its written statement of

reasons.

       Defendant-Appellant Joshua Kestenbaum appeals from an amended judgment entered

March 14, 2013, and a second amended judgment entered April 10, 2013, by the United States

District Court for the Eastern District of New York (Gershon, J.), which sentenced him to three

years’ imprisonment after finding that he had violated the terms of his probation. He challenges

the district court’s findings that he violated the terms of his probation by willfully failing to

make his scheduled restitution payments and by intentionally making false statements to the

government in violation of 18 U.S.C. § 1001. He also argues that the government should be

required to prove a probation violation beyond a reasonable doubt, rather than by a

preponderance of the evidence, and that his sentence was procedurally and substantively

unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal.

       We review a district court’s ultimate decision as to whether a probation violation has

occurred for abuse of discretion, and we review its underlying factual findings for clear error.

United States v. Colasuonno, 697 F.3d 164, 181 (2d Cir. 2012). We find clear error only when

the record as a whole leaves us with a “definite and firm conviction that a mistake has been

committed.” Id. (quoting United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008)).

       Kestenbaum provides plausible reasons for believing that his failure to pay restitution

was not willful, and that the false statements that he made to the government were not intentional

falsehoods. But though his explanations are colorable, they are not compelling. We do not



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believe the district court clearly erred in rejecting Kestenbaum’s view of the evidence, or that it

abused its discretion in finding that Kestenbaum had violated the terms of his probation.

       As for Kestenbaum’s argument that probation violations must be proved beyond a

reasonable doubt, it is squarely foreclosed by our precedent. To find a probation violation, “[t]he

district court does not have to be convinced beyond reasonable doubt, but instead must only be

reasonably satisfied, that the probationer has failed to comply with the probationary conditions.”

United States v. Lettieri, 910 F.2d 1067, 1068 (2d Cir. 1990).

       Finally, we review Kestenbaum’s sentence for procedural and substantive

reasonableness. United States v. Booker, 543 U.S. 220, 261 (2005); United States v. Carr, 557

F.3d 93, 107 (2d Cir. 2009). A sentence is procedurally unreasonable if the district court

committed a “significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is

substantively unreasonable only in “exceptional cases where the trial court’s decision ‘cannot be

located within the range of permissible decisions,’” United States v. Cavera, 550 F.3d 180, 189

(2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)); in

other words, where the sentence is “shockingly high, shockingly low, or otherwise unsupportable

as a matter of law,” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

       We apply the familiar abuse of discretion standard in determining whether a sentence is

reasonable, examining questions of law de novo and factual findings for clear error. Gall, 552

U.S. at 51; United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). If the asserted error was

not preserved by a contemporaneous objection, we will normally review only for plain error.


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Puckett v. United States, 556 U.S. 129, 133-36 (2009); United States v. Green, 618 F.3d 120, 122

(2d Cir. 2010).

       Kestenbaum argues first that the district court’s decision was procedurally unreasonable

because the district court focused on the sentencing range that the Guidelines recommended for

his original offense (108-135 months) rather than the range they recommended for his probation

violation (4-10 months). That argument fails. The district court correctly calculated and

considered the range recommended in the applicable Guidelines policy statement for

Kestenbaum’s probation violation. It then recognized that it was also permitted to consider the

Guidelines range for Kestenbaum’s original offense, and made a conscious decision to take that

original range into account. The record thus shows that the district court understood and carried

out its duty to consider the correct Guidelines recommendation, and properly “resentence[d] the

defendant for the crime of conviction mindful that he ha[d] breached the trust placed in him by a

probationary sentence.” United States v. Verkhoglyad, 516 F.3d 122, 130 n.6 (2d Cir. 2008).

       Next, Kestenbaum argues that the district court procedurally erred by failing to

adequately explain its sentence. We disagree. When a district court explains its sentencing

decision, “the length and level of detail required varies depending upon the circumstances.”

United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007). “[W]e do not insist that the

district court address every argument the defendant has made or discuss every § 3553(a) factor

individually.” Id. Here, the district court’s explanation was more than sufficient to show that it

“considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). We therefore see no

procedural error here.




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       We also reject Kestenbaum’s claim that his sentence was substantively unreasonable. A

three-year sentence does not fall outside the range of permissible sentencing decisions here,

given the seriousness of Kestenbaum’s original offense conduct and his multiple probation

violations. See Verkhoglyad, 516 F.3d at 135 (“[O]n revocation of probation, a resentence that

falls within the range for the underlying crime of conviction will rarely qualify as too severe to

be substantively reasonable.”). Even considering the substantial mitigating factors present here,

including Kestenbaum’s voluntary confession and his extraordinary cooperation with law

enforcement, we do not believe the district court’s chosen sentence was too long to be

considered reasonable.

       One matter remains to be addressed. The district court appears to have inadvertently

omitted an intended attachment to the April 2013 amended judgment’s written statement of

reasons regarding Kestenbaum’s sentence. We therefore remand “solely to permit the district

court to amend its written judgment to satisfy the ministerial duty to memorialize its stated

reasons for sentencing.” Verkhoglyad, 516 F.3d at 134.

       We have considered Kestenbaum’s remaining arguments and find they lack merit. For the

reasons given above, we AFFIRM the district court’s judgment, but REMAND for the district

court to add the intended attachment to its written statement of reasons.



                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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