     15-3817
     United States v. Shumate

                          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 29th day of September, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                              Circuit Judges.
 9                JED S. RAKOFF,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES,
14                Appellee,
15
16                    -v.-                                               15-3817
17
18       DAVID L. SHUMATE,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Lisa A. Peebles (with Molly K.
23                                             Corbett on the brief, and with


                *
                  The Honorable Jed S. Rakoff, United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1                              James P. Egan), Federal Public
 2                              Defender for the Northern
 3                              District of New York.
 4
 5   FOR APPELLEES:             Richard S. Hartunian (with Kofi
 6                              Sansculotte and Paul D. Silver
 7                              on the brief), United States
 8                              Attorney for the Northern
 9                              District of New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Northern District of New York (McAvoy, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        David Shumate appeals from the judgment and sentence of
19   the United States District Court for the Northern District
20   of New York (McAvoy, J.). Shumate was sentenced to 48
21   months imprisonment (with credit for 12 months served in
22   state custody) for violating his supervised release after
23   heroin was found in his residence. He challenges both the
24   procedural and substantive reasonableness of his sentence.
25   We assume the parties’ familiarity with the underlying
26   facts, the procedural history, and the issues presented for
27   review.
28
29        1. Because the defendant raises his procedural
30   reasonableness challenge for the first time on appeal, his
31   claim is reviewed for plain error only. Plain error
32   requires (1) an error; (2) that is clear; (3) that affected
33   his substantial rights; and (4) that seriously affected the
34   integrity, fairness, or public reputation of the proceeding.
35   United States v. Marcus, 560 U.S. 258, 262 (2010).
36
37        The defendant proffers three reasons why his sentence
38   was procedurally unreasonable: (a) reliance on erroneous
39   facts; (b) incorrect selection of the guidelines range; and
40   (c) failure to state reasons for the above-guidelines
41   sentence.
42
43        a. The district court observed that Shumate had been
44   before the court “on a number of occasions.” J. App’x at
45   54. Shumate asserts that he had only been in front of the
46   district court once (for his sentencing on the original
47   offense conduct). But Shumate had also appeared before the

                                  2
 1   district court in 1997 to be re-sentenced following a
 2   vacated conviction. There was no error, plain or otherwise.
 3
 4        The district court observed that the defendant “seems
 5   to go right back to [drug dealing] no matter what sanctions
 6   the Court impose[s] on him.” Id. Shumate is correct that
 7   he had been on supervision for more than 24 months before
 8   his revocation proceedings began. But the district court’s
 9   observation is at worst an overstatement: the context is
10   that Shumate returned to dealing heroin within two years of
11   his release after serving a 168-month term of imprisonment
12   for dealing drugs.
13
14        b. The district court did not rely on an incorrect
15   guidelines range. The district court first misstated the
16   guidelines range, but after the error was brought to the
17   court’s attention, the court made clear that it understood
18   that it had misstated the range and that it intended to
19   sentence the defendant above the applicable guidelines
20   range.
21
22        c. Shumate argues that the district court failed to
23   explain its above-guidelines sentence. While Shumate only
24   admitted to a grade B violation, i.e., simple possession of
25   heroin, the Government argued (and the district court
26   agreed) that a sentence commensurate with a grade A
27   violation was appropriate based on Shumate’s actual conduct,
28   i.e., possession with intent to distribute.1 The district
29   court clearly stated at sentencing that it was going above
30   the applicable guidelines range “in order to fit the conduct
31   which [it] f[ound] [Shumate] pled guilty to . . . .” J.
32   App’x at 56. A finding that Shumate’s conduct amounted to a
33   grade A violation was amply supported by the record: Shumate
34   was found at his residence with 663 clear envelopes of
35   heroin (estimated street value of $6,000), as well as cash
36   in the amount of $1,442 inside a safe, a digital scale, and
37   other drug paraphernalia. The district court took all of
38   this into consideration when it stated that “what you did
39   here was very serious, that’s a lot of heroin and a lot of
40   people could have been significantly harmed if that hit the
41   streets.” Id. at 54. The district court clearly explained


         1
              A grade B violation is for simple possession of
     heroin, see U.S.S.G. § 7B1.1(2); whereas a grade A violation
     is for possession with intent to distribute, see id.
     § 7B1.1(a)(1) and cmt. n.3; see also id. § 4B1.2(b).
                                  3
 1   its reasoning for imposing an above-guidelines sentence and
 2   did not commit an error in doing so.
 3
 4        2. As to substantive reasonableness, we will reverse
 5   those few sentences that, “although procedurally correct,
 6   would nonetheless damage the administration of justice
 7   because the sentence imposed was shockingly high, shockingly
 8   low, or otherwise unsupportable as a matter of law.” United
 9   States v. Bonilla, 618 F.3d 102, 109 (2d Cir. 2010) (quoting
10   United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).
11
12        Shumate claims that his sentence was substantively
13   unreasonable because it was “almost double” the guidelines
14   range. However, for the reasons stated above, the district
15   court thoroughly explained the reasons for exceeding the
16   guidelines range. Although Shumate admitted to the lower
17   level offense, the district court was satisfied that his
18   conduct amounted to the higher level offense and the
19   sentence reflected the actual seriousness of his conduct.
20   Accordingly, we cannot say that this sentence is “shockingly
21   high,” and it certainly does not damage the administration
22   of justice. See Bonilla, 618 F.3d at 109. Accordingly,
23   Shumate’s substantive unreasonableness challenge fails.
24
25        For the foregoing reasons, and finding no merit in
26   Shumate’s other arguments, we hereby AFFIRM the judgment of
27   the district court.
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31




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