     11-5126
     United States v. Miles

                          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 5th day of April, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                              Circuit Judge.
10                ERIC N. VITALIANO,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14
15       UNITED STATES OF AMERICA,
16                Appellee,
17
18                    -v.-                                                     11-5126
19
20       WESLEY ROBINSON, AKA WESLEY ROBERTSON,
21       AKA WES,
22                Defendant,
23
24       DESHAWN MILES, AKA NOW LATER,
25                Defendant-Appellant,
26       - - - - - - - - - - - - - - - - - - - -X


                *
               The Honorable Eric N. Vitaliano, District Judge of
         the United States District Court for the Eastern District of
         New York, sitting by designation.
                                                  1
 1   FOR APPELLANT:             SALLY WASSERMAN, New York, New
 2                              York.
 3
 4   FOR APPELLEE:              DANIEL S. SILVER, Assistant
 5                              United States Attorney (Emily
 6                              Berger, Assistant United States
 7                              Attorney, on the brief), for
 8                              Loretta E. Lynch, United States
 9                              Attorney, Eastern District of
10                              New York, Brooklyn, New York.
11
12        Appeal from a judgment of the United States District
13   Court for the United States District Court for the Eastern
14   District of New York (Gleeson, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED IN PART, and VACATED IN PART and REMANDED.
19
20        Defendant DeShawn Miles appeals from a sentence imposed
21   by the United States District Court for the Eastern District
22   of New York (Gleeson, J.), following Miles’s guilty plea to
23   one count of conspiring to commit Hobbs Act robbery, in
24   violation of 18 U.S.C. § 1951(a). The district court
25   sentenced Miles to 108 months’ imprisonment, to run
26   consecutive to Miles’s completion of a prior federal
27   sentence which he is currently serving, as well as four
28   years of supervised release and a $100 special assessment.
29   We assume the parties’ familiarity with the underlying
30   facts, the procedural history, and the issues presented for
31   review.
32
33        On appeal, Miles contends that the district court erred
34   in considering prejudicial evidence of an unrelated homicide
35   and an unrelated shooting at his sentencing hearing.
36   Specifically, Miles objects to evidence of his alleged
37   murder of one Naquan Brown following a dispute with Brown’s
38   friend, and to evidence of his alleged shooting of Richard
39   Miller following an incident in which Miller threatened
40   Miles with a firearm--neither of which related to the Hobbs
41   Act charges at issue in the case. Additionally, Miles




                                  2
 1   challenges the substantive reasonableness of the court’s
 2   decision to impose a consecutive sentence.1
 3
 4        We review all sentences for abuse of discretion.
 5   United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)
 6   (in banc) (internal quotation marks omitted). Our review
 7   looks for both procedural and substantive error. Id. We
 8   “must first ensure that the district court committed no
 9   significant procedural error, such as failing to calculate
10   (or improperly calculating) the Guidelines range, treating
11   the Guidelines as mandatory, failing to consider the §
12   3553(a) factors, selecting a sentence based on clearly
13   erroneous facts, or failing to adequately explain the chosen
14   sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
15   If we determine that the sentence is procedurally sound, we
16   then review for substantive reasonableness, reversing only
17   when the trial court’s sentence “cannot be located within
18   the range of permissible decisions.” Cavera, 550 F.3d at
19   189 (internal quotation marks omitted).
20
21        Miles argues that his sentence was procedurally
22   unreasonable because the district court “irrevocably damaged
23   the fairness of these proceedings in permitting the Fatico
24   hearing to descend into a highly prejudicial and
25   inflammatory inquest into the death of Naquan Brown.” Pet’r
26   Br. 29. He faults the court for failing to “in any way
27   restrain or restrict the Government’s adducement of proof at
28   the hearing, [which] resulted in the adducement of a torrent
29   of unduly prejudicial material.” Pet’r Br. 33.
30
31        However, “no limitation shall be placed on the
32   information concerning the background, character, and
33   conduct of a person convicted of an offense which a court of
34   the United States may receive and consider for the purpose
35   of imposing an appropriate sentence.” 18 U.S.C. § 3661; see
36   also U.S.S.G. § 1B1.4. Evidence of uncharged crimes is one
37   of many such permissible considerations. See United States
38   v. Reese, 33 F.3d 166, 174 (2d Cir. 1994); but see United
39   States v. Broxmeyer, 699 F.3d 265, 298 (2d Cir. 2012)

         1
           Because Miles has challenged the court’s imposition
     of a consecutive sentence, the government has elected not to
     invoke Miles’s waiver of his right to appeal a sentence of
     ten years or less.
                                  3
 1   (Jacobs, C.J., dissenting) (warning against over-reliance on
 2   such evidence, which may cause “the offense of federal
 3   conviction [to] become just a peg on which to hang a
 4   comprehensive moral accounting”).
 5
 6        While the evidence of Brown’s murder and Miller’s
 7   shooting may have been inflammatory if it had been presented
 8   to a jury, the court acted within its discretion in hearing
 9   this evidence. Miles cannot point to case law which
10   suggests that the government’s evidence was too
11   comprehensive and too compelling and therefore should have
12   been stricken. Furthermore, the district court made clear
13   that the homicide-related evidence presented at sentencing
14   “doesn’t have nearly the weight the government wishes me to
15   ascribe to it.” A 184. And the court ultimately imposed a
16   sentence only slightly above the Guidelines range of 84 to
17   105 months.
18
19        Miles also questions the government’s decision to bring
20   these Hobbs Act charges after he had been sentenced for
21   narcotics trafficking arising from the same transactions,
22   thereby potentially inflating his overall prison term. But
23   Miles (appropriately) stops short of charging the government
24   with vindictive prosecution or sentence manipulation.
25   Indeed, this case lacks any such indicia. See United States
26   v. Gomez, 103 F.3d 249, 256 (2d Cir. 1997); United States v.
27   Sanders, 211 F.3d 711, 717 (2d Cir. 2000).
28
29        Notwithstanding Miles’s argument to the contrary, it
30   was proper for the court to sentence him to a consecutive
31   term of imprisonment. See U.S.S.G. § 50 l.3(c). The
32   Guidelines “clearly vest[] broad discretionary authority in
33   the sentencing court” to make such determinations. United
34   States v. Maria, 186 F.3d 65, 69 (2d Cir. 1999). And, as
35   the district court observed, Miles pled guilty to “a very
36   serious violent crime that deserves serious punishment.” A
37   182.
38
39        Nonetheless, remand is necessary to correct an error in
40   the court’s imposition of a four-year term of supervised
41   release. The statutory maximum for this offense is three
42   years. See 18 U.S.C. § 3583(b)(2). The government consents
43   to a limited remand to correct this error.
44

                                  4
 1        Miles further contends that the district court did not
 2   fully consider the extent to which the bifurcated
 3   prosecution affected Miles’s Guidelines range (by increasing
 4   his Criminal History Category to V). We express no opinion.
 5   Still, since we are remanding for correction of the
 6   supervised release term, we add that this mandate does not
 7   foreclose the district court from revisiting this issue
 8   should the court deem it appropriate.
 9
10        For the foregoing reasons, we hereby AFFIRM IN PART the
11   judgment of the district court, and VACATE IN PART the
12   judgment insofar as it imposes a sentence of supervised
13   release above the maximum allowed by law, see 18 U.S.C. §
14   3583(b)(2). We hereby REMAND for the purpose of imposing a
15   term of supervised release at or below the three-year
16   statutory maximum, following Miles’s release from prison.
17
18
19                              FOR THE COURT:
20                              CATHERINE O’HAGAN WOLFE, CLERK
21




                                  5
