18-1143
United States v. Humphrey

                                 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 24th day of August, two thousand eighteen.

PRESENT:          JOSÉ A. CABRANES,
                  ROSEMARY S. POOLER,
                          Circuit Judges,
                  J. PAUL OETKEN,
                          Judge. ∗


UNITED STATES OF AMERICA,

                            Appellee,                            18-1143

                            v.

MARTY HUMPHREY,

                            Defendant-Appellant. ∗∗


FOR DEFENDANT-APPELLANT:                                     Daniel S. Nooter, Washington, D.C.




    ∗Judge J. Paul Oetken, of the United States District Court for the Southern District of New
York, sitting by designation.
    ∗∗   The Clerk of Court is directed to amend the official caption as set forth above.

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FOR APPELLEE:                                                Michael D. Gadarian, (Michael S. Barnett),
                                                             Assistant United States Attorneys, on the
                                                             brief) for Grant C. Jaquith, United States
                                                             Attorney for the Northern District of
                                                             New York, Syracuse, N.Y.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Mae A. D’Agostino, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the April 17, 2018 judgment of the District Court is AFFIRMED.

       Defendant-Appellant Marty Humphrey (“Humphrey”) appeals from his sentence of 15
months imprisonment, arguing that the sentence imposed by the District Court was procedurally
and substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

         On March 9, 2018, Humphrey pleaded guilty to conspiracy to possess with intent to
distribute and to distribute controlled substances (cocaine and cocaine base), in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). The Pre-Sentence Report (“PSR”) calculated Humphrey’s
total offense level as 13 with a criminal history category I, yielding a guidelines range of 12 to 18
months. The Government recommended a term of imprisonment of 12 months and one day. The
District Court sentenced Humphrey to 15 months imprisonment, a sentence at the midpoint of the
guidelines range.

         Humphrey first argues that the District Court failed to provide an “adequate” explanation
under 18 U.S.C. § 3553(c) for its decision to impose a sentence greater than the sentence sought by
the government. We review Humphrey’s claim for plain error because he made no objection to the
District Court’s calculation of the sentence recommended by the guidelines, consideration of the
§ 3553(a) sentencing factors, or explanation of the sentence. United States v. Villafuerte, 502 F.3d 204,
208 (2d Cir. 2007). To establish plain error, Humphrey must demonstrate “(1) error (2) that is plain
and (3) affects substantial rights.” Id. at 209 (internal citation omitted). We then consider whether
“the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”
Id. (internal quotation marks omitted). A district court commits procedural error “where it fails to
calculate the Guidelines range,” “makes a mistake in its Guidelines calculation, or treats the
Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a clearly
erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United States v. Cavera,
550 F.3d 180, 190 (2d Cir. 2008).

       Humphrey urges us to hold that a District Court’s sentencing explanation is “adequate” for
§ 3553 purposes only when it explicitly addresses why the length of the sentence sought by the
Government is not sufficient. We decline to do so. The Government’s recommended sentence fell

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within the guidelines range, and the District Court explained that it considered the § 3553(a) factors
and provided reasons why a sentence in the middle of the guidelines range was appropriate. It was
not required to provide a specific reason for sentencing Humphrey to a sentence higher than that
recommended by the Government. We thus conclude that the District Court committed no error,
much less plain error.

        Humphrey next argues that his sentence is substantively unreasonable because the District
Court’s stated reasons for imposing a sentence at the middle of the guidelines range are not
supported by the record. In particular, Humphrey contends that the District Court mischaracterized
his acceptance of responsibility for and the nature of his involvement in the crime, and unreasonably
relied on his past criminal history.

        We review the substantive reasonableness of sentences for abuse of discretion. United States
v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). A sentence is substantively unreasonable “only if it
cannot be located within the range of permissible decisions.” United States v. Bonilla, 618 F.3d 102,
108 (2d Cir. 2010) (internal quotation marks omitted). Our review for substantive reasonableness is
“deferential.” Cavera, 550 F.3d at 191.

         Upon review, we conclude that the District Court did not abuse its discretion. It properly
analyzed the factors set forth in § 3553(a) and the PSR to weigh Humphrey’s acceptance of
responsibility for and the level of his involvement in the crime. The District Court also acted within
its discretion in considering Humphrey’s criminal history, even though his conviction was too
remote in time to factor into the guidelines calculation. A district court is permitted to consider
criminal history in sentencing if the sentence provides “evidence of similar, or serious dissimilar,
criminal conduct.” See U.S.S.G. § 4A1.2 cmt. 8. Here, Humphrey’s last conviction for criminal sale
of a controlled substance was clearly similar conduct.

                                          CONCLUSION

       We have reviewed all of Humphrey’s remaining claims and find them to be without merit.
Accordingly, we AFFIRM the April 17, 2018 judgment of the District Court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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