09-1009-cr
United States v. Jones
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9 th day of March, two thousand ten.

PRESENT:                 GERARD E. LYNCH,
                                       Circuit Judge,
                                     *
                         DENNY CHIN,
                                       District Judge.**

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UNITED STATES OF AMERICA,
                                          Appellee,
                         v.                                                 No. 09-1009-cr

BRIAN JONES,
                                          Defendant-Appellant.
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APPEARING FOR APPELLANT:                          GEORGE F. HILDEBRANDT, Syracuse, NY


APPEARING FOR APPELLEE:                           JOHN M. KATKO (Elizabeth S. Riker, on the
                                                  brief), for Andrew T. Baxter, United States
                                                  Attorney for the Northern District of New York,


           *
         The Honorable Denny Chin, of the United States District Court for the Southern
District of New York, sitting by designation.
           **
          The Honorable Rosemary S. Pooler, originally a member of this panel, did not
participate in the consideration of this appeal. The two remaining members of the panel, who
are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. I.O.P. E;
United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
                                                Syracuse, New York.

 1          Appeal from the United States District Court for the Northern District of New York

 2   (Frederick J. Scullin, Jr., Judge).

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

 4   DECREED that the judgment of conviction, entered on February 27, 2009, is AFFIRMED.

 5          Brian Jones appeals from a sentence of 14 months in prison and 16 months of

 6   supervised release, imposed for a violation of a condition of his supervised release following

 7   a 60-month term of imprisonment for possessing crack cocaine with the intention to

 8   distribute it. See 18 U.S.C. § 3583(e)(3), (h).

 9          We review sentences for violation of supervised release – as we do all sentences – for

10   reasonableness. United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); see also

11   United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008). Our review proceeds in two

12   steps: first we must “ascertain whether the sentence was administered without procedural

13   error,” United States v. Williams, 524 F.3d 209, 214 (2d Cir. 2008); and second, if the

14   sentence is “procedurally sound,” we must “consider [its] substantive reasonableness,” Gall

15   v. United States, 552 U.S. 38, 51 (2007). This second inquiry turns on whether the district

16   judge abused his discretion in determining an appropriate sentence under 18 U.S.C.

17   § 3583(e), which requires the judge to consider factors set forth in 18 U.S.C. § 3553(a).

18   Because Jones failed to object to his sentence below, our review is for plain error. See Fed.

19   R. Crim. P. 52(b).

20          Jones asserts that the district court committed procedural error by incorrectly


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 1   calculating the applicable sentencing guidelines range.          In sentencing Jones on his

 2   underlying conviction, the district court found that Jones fell into criminal history category

 3   VI, before granting Jones a departure to category V pursuant U.S.S.G. § 4A1.3. Jones now

 4   argues that the district court erred in employing criminal history category VI, rather than

 5   criminal history category V, in calculating the guidelines recommendation for his sentence

 6   for violating supervised release.

 7          The district courts’s calculation of the guidelines range for the supervised release

 8   violation was correct. The application notes to the guideline for calculating a recommended

 9   sentence range for a supervised release violation specifically direct the sentencing court to

10   utilize the “criminal history category . . . determined at the time the defendant originally was

11   sentenced to the term of supervision.” U.S.S.G. § 7B1.4, Application Note 1. Under the

12   guidelines system, the criminal history category is “[d]etermine[d]” as part of the process of

13   calculating a guideline sentencing range, see U.S.S.G. § 1B1.1(f); a “departure” does not

14   change the offense level or criminal history category that was “determined” in calculating

15   the guideline range, but rather imposes a sentence outside the calculated range to take

16   account of factors not “adequately taken into consideration by the Sentencing Commission”

17   in determining that range, see 18 U.S.C. § 3553(b)(1). Thus, the reference in Application

18   Note 1 to the criminal history category “determined” when defendant was first sentenced

19   must mean the category initially calculated, prior to any departure.

20          Any potential ambiguity about this reference is dispelled by Application Note 2 to

21   U.S.S.G. § 7B1.4, which specifically addresses cases in which the judge departed from the


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 1   originally-calculated criminal history category. That Note provides that a departure from the

 2   guidelines range recommended for supervised release violations “may be warranted when

 3   the court departed from the applicable guideline range [pursuant to § 4A1.3] in originally

 4   imposing the sentence that resulted in supervision.” (Emphasis added.) The Guidelines thus

 5   permit a district judge to grant a similar departure in calculating the sentencing range for the

 6   supervised release violation, but do not require that the judge do so. See also United States

 7   v. McKinney, 520 F.3d 425, 428-30 (5th Cir. 2008) (holding that the Guidelines instruct a

 8   court calculating the sentencing range for a violation of supervised release to use defendant’s

 9   criminal history category as it was in the original proceeding prior to any departure). We

10   thus find no plain error – indeed, we find no error at all – in the district court’s application

11   of the Guidelines.

12          Jones also asserts that his sentence was substantively unreasonable, because the

13   district court did not adequately consider the sentencing factors of § 3553, particularly his

14   need for rehabilitation and treatment. See 18 U.S.C. § 3553(a)(2)(D). While a district court

15   has discretion to consider a defendant’s medical or treatment needs in determining a

16   sentence, it is not required to do so. See United States v. Anderson, 15 F.3d 278, 281-83 (2d

17   Cir. 1994). Here, the district court specifically noted that it had sentenced Jones to a halfway

18   house for a previous violation of supervised release, “but he only stayed one day” before

19   leaving and again violating the terms of his release. Given Jones’ repeated failures to comply

20   with the terms of supervised release, we cannot say that the district court’s refusal to impose

21   another sentence of drug treatment, or its sentence of 14 months imprisonment was


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1   unreasonable.

2         For the foregoing reasons, the judgment of conviction is AFFIRMED.

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