17-3602-cr
United States v. Vogler

                          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, 40 Foley Square, in the City of New
York, on the 26th day of February, two thousand nineteen.

PRESENT:
                 ROSEMARY S. POOLER,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                                           Appellee,
                               v.                                               No. 17-3602-cr

JOHN VOGLER,
                                            Defendant-Appellant,

LISA BENINCASA, MATTHEW NESBITT,

                                                        Defendants.
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FOR APPELLANT:                                   ANNE M. BURGER, Federal Public Defender’s
                                                 Office for the Western District of New York,
                                                 Rochester, New York.

FOR APPELLEE:                                    TIFFANY LEE, Mary C. Baumgarten, Assistant
                                                 United States Attorneys, for James P. Kennedy,
                                                 Jr., United States Attorney for the Western
                                                 District of New York, Buffalo, New York.
       Appeal from a final judgment of the United States District Court for the Western

District of New York (David G. Larimer, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on November 1, 2017, is AFFIRMED.

       Defendant John Vogler stands convicted, based on his guilty plea, of making

materially false statements to a Special Agent of the U.S. Department of Veteran Affairs

(“VA”), see 18 U.S.C. § 1001(a)(2), following Vogler’s unlawful cashing of his deceased

mother’s monthly VA checks. Sentenced principally to eighteen months’ imprisonment,

Vogler challenges his above-Guidelines sentence as procedurally and substantively

unreasonable.   In reviewing a sentence for substantive and procedural reasonableness, we

employ “a particularly deferential form of abuse-of-discretion review.” United States v.

Cavera, 550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc). In doing so here, we assume the

parties’ familiarity with the facts and record of prior proceedings, which we reference only

as necessary to explain our decision to affirm.

1.     Procedural Error

       A district court commits procedural error where it improperly calculates the

Sentencing Guidelines range, fails to consider the factors enumerated in 18 U.S.C.

§ 3553(a), rests its sentence on a clearly erroneous finding of fact, or fails adequately to

explain its chosen sentence.    See id. at 190.    The unobjected-to Presentence Report

calculated Vogler’s offense level at 4, which with a criminal history of V resulted in a 4-

to-10 months Guideline range.        The district court was required to consider this

recommended range, see 18 U.S.C. § 3553(a)(4), but was not bound to follow it, see United
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States v. Booker, 543 U.S. 220, 245–46 (2005); United States v. Cavera, 550 F.3d at 187.

Because the district court adequately explained its reasons for departing upwardly from

this calculation, we identify no procedural error in its imposition of a higher sentence.

       The first sentencing factor highlighted by the district court was the nature of

Vogler’s offense, see 18 U.S.C. § 3553(a)(1), which it reasonably deemed aggravated by

several circumstances, specifically that (1) Vogler lied to federal agents to conceal his own

VA fraud; (2) the underlying criminal conduct was “not a one time occurrence,” but

persisted “over two or three years;” and (3) Vogler had involved others in his fraud,

specifically, his girlfriend and her son. App’x 70–71.

       A second factor highlighted by the district court was Vogler’s “remarkably long”

criminal history, spanning 30 years and including nine felony convictions, five instances

of driving while intoxicated, and sixteen convictions or arrests for unlicensed operation of

a motor vehicle. Id. The majority of Vogler’s convictions were temporally too remote

to factor into his Guidelines calculations, see U.S.S.G. § 4A1.2(e), or, as misdemeanor or

other lesser offenses, excluded from consideration, see id. § 4A1.2(c). As a result, the

district court determined that Vogler’s Guidelines criminal history category of V did not

adequately represent the seriousness of his persistent criminal history, see id. § 4A1.3(a),

or his particular resistance to abiding by the law, see App’x 71 (“[I]t doesn’t seem like you

make any effort to change your behavior.”). This was evident not only from the extent of

Vogler’s criminal conduct, but also from the fact that he continued to violate the law even

when on probation or parole supervision. Indeed, the district court noted that Vogler’s

most recent conviction pertained to conduct—the unlicensed operation of a motor
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vehicle—that occurred while Vogler was on pretrial release in the instant case and despite

admonitions about driving from Pretrial officers.      Thus, the district court concluded that

an above-Guidelines sentence was necessary not only because the Guidelines

“underrepresent[ed] the seriousness of [Vogler’s] criminal history,” but also “and,

importantly,” because of the “likelihood that he will commit other crimes.” Id. at 74.

       Vogler nevertheless identifies procedural error in the fact that the district court,

while purporting to move “horizontally three levels” in fashioning its above-Guidelines

sentence, in fact moved vertically.       Id.   Guideline § 4A1.3(a)(4)(A) states that, in

departing for inadequacy of criminal history category, the district court should first move

horizontally across the Guidelines sentencing table, “determin[ing] the extent of a

departure . . . by using, as a reference, the criminal history category applicable to defendants

whose criminal history . . . most closely resembles that of the defendant’s.” U.S.S.G.

§ 4A1.3(a)(4)(A). Where a court seeks to depart beyond criminal history category VI,

however, it appropriately moves vertically “down the sentencing table to the next higher

offense level in the Criminal History Category VI until it finds a guideline range

appropriate to the case.” Id. § 4A1.3(a)(4)(B).

       Even if the district court did not strictly follow this procedure, Vogler cannot

demonstrate that his sentence is procedurally unreasonable.              Well before Booker

pronounced the Guidelines advisory rather than mandatory, see United States v. Booker,

543 U.S. at 227, this court recognized that the referenced Guidelines departure procedure,

endorsed by this court in United States v. Tropiano, 50 F.3d 157, 162 (2d Cir. 1995),

admitted some flexibility. “A sentencing court considering an upward departure under
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§ 4A1.3 is not required by our cases to pause at each category above the applicable one to

consider whether the higher category adequately reflects the seriousness of the defendant’s

record.” United States v. Simmons, 343 F.3d 72, 78 (2d. Cir. 2003). Instead, “as long

as the reasons for such a departure are fully explained, a mechanistic, step-by-step

procedure is not required.” Id. (internal quotation marks omitted). This conclusion is

only reinforced by the Supreme Court’s post-Booker holdings, which require a district

judge only to provide a “reasoned basis for exercising his own legal decisionmaking

authority,” Rita v. United States, 551 U.S. 338, 356 (2007), and recognize his authority to

“depart” from the Guidelines “either pursuant to the Guidelines or, since Booker, by

imposing a non-Guidelines sentence,” id. at 350.

       United States v. Bean, 299 F. App’x 55 (2d Cir. 2008), is not to the contrary because

there the district court not only failed to follow the procedure set forth in U.S.S.G.

§ 4A1.3(a)(4) for calculating its upward departure, it also did not “settle on an amended

Guidelines range” at all. Id. at 56–57. Here, in contrast, the district court settled on a

range that could be supported by a horizontal departure to category VI followed by a

vertical departure to offense level 6, as contemplated by U.S.S.G. § 4A1.3(a)(4)(B). Cf.

id. at 57 n.2 (observing that following Guidelines procedure would not have supported

challenged sentence).

       In sum, the district court correctly calculated Vogler’s Guidelines range and

adequately explained its reasons for departure. In these circumstances, we do not identify

any procedural error in the challenged sentence.


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2.     Substantive Unreasonableness

       In challenging his eighteen-month sentence as substantively unreasonable, Vogler

bears a heavy burden because we will set aside a sentence on that ground “only in

exceptional cases” where the challenged sentence cannot be located within the wide range

of permissible decisions available to the district court, United States v. Cavera, 550 F.3d

at 189, i.e., where “the sentence imposed was shockingly high, shockingly low, or

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

Cir. 2009). That is not this case.

       Before the district court, defense counsel presented various mitigating factors,

including Vogler’s age, health and financial situation, which the district court deemed

outweighed by the above-described aggravating factors.       See United States v. Perez-

Frias, 636 F.3d 39, 42–43 (2d Cir. 2011) (stating that reviewing court “will not second

guess the weight (or lack thereof) that the judge accorded to a given factor” (internal

quotation marks omitted)). On this record, we cannot conclude that Vogler’s eighteen-

month sentence falls outside the “broad range” of sentences available to the district court

so as to be considered substantively unreasonable. United States v. Jones, 531 F.3d 163,

174 (2d Cir. 2008). We therefore reject Vogler’s substantive challenge.

3.    Conclusion

       We have considered Vogler’s remaining arguments and find them to be without

merit. Accordingly, the judgment of conviction is AFFIRMED.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court

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