18‐1155
United States v. Milne


                          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 17th day of May, two thousand
nineteen.

PRESENT: DENNIS JACOBS,
         PIERRE N. LEVAL,
         CHRISTOPHER F. DRONEY,
              Circuit Judges.

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UNITED STATES OF AMERICA,
                            Appellee,

                  v.                                               18‐1155

JOHN N. MILNE,
                            Defendant‐Appellant.
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FOR APPELLANT:                               Andrew B. Bowman, Westport, CT.

FOR APPELLEE:                                Elena Coronado (Michael S. McGarry,
                                             Sandra S. Glover, Assistant United
                                             States Attorneys, on the brief), for
                                             John H. Durham, United States
                                             Attorney for the District of
                                             Connecticut, New Haven, CT.

      Appeal from a judgment of the United States District Court for the District
of Connecticut (Hall, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.

      John Milne appeals from a judgment of the United States District Court for
the District of Connecticut (Hall, J.) sentencing him to 24 months’ imprisonment
following his violation of the terms of supervised release. On appeal, Milne
argues that the sentence was procedurally and substantively unreasonable. We
assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues presented for review.

       Milne pleaded guilty in 2009 to conspiracy to falsify the books and records
of a publicly traded company while serving as its President and Chief Financial
Officer. He was sentenced to 27 months’ imprisonment followed by 36 months
of supervised release, and the district court imposed a special condition of
supervised release, in lieu of restitution or a fine, requiring payment of $6,250,000
to the Securities and Exchange Commission (“SEC”) to satisfy a disgorgement
order that resolved a parallel SEC civil suit against Milne.

       At a March 2013 hearing, Milne admitted to violating the terms of his
supervised release by failing to make required payments to the SEC and leaving
the district of his supervision without permission. However, the hearing was
continued numerous times, initially to allow Milne to provide updated financial
statements, and later to allow Milne to make good on his repeated assurances that

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he would soon be able to make sizeable payments to the SEC. Finally, after more
than five years of continuances, the district court sentenced Milne in April 2018 to
the maximum term of 24 months’ imprisonment.

        1.     “Sentences for violations of supervised release are reviewed under
the same standard as for sentencing generally: whether the sentence imposed is
reasonable.” United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (internal
quotation marks omitted). “A district court commits procedural error where it
fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats
the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.
2012) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Review for
reasonableness is akin to a “deferential abuse‐of‐discretion standard.” United
States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (quoting Gall, 552 U.S.
at 41). However, “[a] sentencing court’s legal application of the Guidelines is
reviewed de novo.” United States v. Desnoyers, 708 F.3d 378, 385 (2d Cir. 2013)
(internal quotation marks omitted).

       Milne argues that the district court’s explanation for the sentence was
insufficient and irrational. In particular, he argues that the court erroneously
analogized his offense to armed robbery, and that the court’s explanation was
irreconcilable with its finding that Milne’s unfulfilled promises to make
substantial payments did not amount to fraud on the court.

      Milne’s characterization of the district court’s analogy at sentencing is
misleading. The court indeed expressed a view that books and records fraud,
like embezzlement or robbery, can be understood as “stealing.” But the record
does not indicate that the court in any way misunderstood the nature of Milne’s
offense. The court’s statement appears to have been in response to defense
counsel’s observation that it would be “an overstatement to say he stole
money . . . . This is not those kind of cases where you’re talking about a man
that goes into a bank and steals money.” Appx. at 57.

       Milne further argues that the district court imposed the maximum sentence
in further punishment for the seriousness of the indictment offense, and that such

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additional punishment is not permissible. We reject the contention. The record
reflects that the district court adequately explained the sentence, setting forth two
key considerations, neither of which was punishment for the indictment offense.
First, the court explained the need for deterrence, both generally and for Milne
specifically. After examining in detail the factual context surrounding Milne’s
violation, the court concluded “that little deters him,” emphasizing that Milne
repeatedly promised to make substantial payments to the SEC, yet failed to do so
despite repeated warnings from the court that failure to comply with his payment
obligations could result in further imprisonment. Appx. at 94‐95.

       Second, the court emphasized “the nature and circumstance of his violation
of supervised release,” Appx. at 98, specifically that in the years since Milne’s
release, he had the financial means to address his payment obligations, and spent
lavishly on personal expenses. The court did not find that Milne affirmatively
lied to the court when he expressed expectations that he would soon make
payments to the SEC. At the same time, the court concluded that Milne’s pattern
of unfulfilled promises, combined with his “high lifestyle,” Appx. at 96, was a
relevant consideration in the court’s evaluation of the nature and circumstances of
Milne’s violation.

       Accordingly, we see no procedural error in the sentence imposed by the
district court.

       2.     “Substantive reasonableness is also reviewed for abuse of discretion.”
Desnoyers, 708 F.3d at 385. “In examining the substantive reasonableness of a
sentence, we review the length of the sentence imposed to determine whether it
cannot be located within the range of permissible decisions.” United States v.
Matta, 777 F.3d 116, 124 (2d Cir. 2015) (internal quotation marks omitted). We
will “set aside a district court’s substantive determination only in exceptional
cases.” Cavera, 550 F.3d at 190 (emphasis omitted).

      Milne observes that the sentencing range under the United States
Sentencing Guidelines (the “Guidelines”) for his violation of supervised release
was 3 to 9 months’ incarceration, and essentially argues that the extent of the
court’s deviation from the Guidelines range demonstrates that the sentence was
greater than necessary to comply with the 18 U.S.C. § 3553(a) factors.

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       In reviewing a non‐Guidelines sentence, we “must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Gall, 552 U.S. at 51. We “do not consider what weight we
would ourselves have given a particular factor. Rather, we consider whether the
factor, as explained by the district court, can bear the weight assigned it under the
totality of circumstances in the case.” Cavera, 550 F.3d at 191 (internal citation
omitted).

       At sentencing, the district court carefully reviewed the factual record of
Milne’s violations, and explained that the sentence was justified by the § 3553(a)
factors‐‐specifically, the nature and circumstances of the violation, see 18 U.S.C.
§ 3553(a)(1), and adequate deterrence, see id. § 3553(a)(2)(B). We see no basis to
conclude that a 24‐month sentence was “shockingly high . . . or otherwise
unsupportable as a matter of law” in these circumstances. See United States v.
Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Accordingly, we will not disturb the
district court’s “considerable discretion in identifying the grounds that can justify
a non‐Guidelines sentence.” United States v. Jones, 531 F.3d 163, 172 (2d Cir.
2008).

     We have considered Milne’s remaining arguments and conclude they are
without merit. The judgment of the district court is therefore AFFIRMED.

                                        FOR THE COURT:
                                        CATHERINE O’HAGAN WOLFE, CLERK




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