    17-795-cr
    United States v. Ivey



                  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 TO 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 10th day of August, two
    thousand seventeen.

    PRESENT:
                  ROBERT D. SACK,
                  PETER W. HALL,
                  CHRISTOPHER F. DRONEY,
                            Circuit Judges.


    _____________________________________

    UNITED STATES OF AMERICA,

                            Appellee,

                  v.                                            17-795-cr

    TONY IVEY,

                      Defendant-Appellant.
    _____________________________________

    For Appellant:                            JAY S. OVSIOVITCH, Federal Public
                                              Defender’s Office, Western District of
                                              New York, Rochester, NY.
For Appellee:                                 CARINA H. SCHOENBERGER (Geoffrey
                                              J.L. Brown, on the brief), Assistant
                                              United States Attorneys, for Richard
                                              S. Hartunian, United States Attorney
                                              for the Northern District of New York,
                                              Syracuse, NY.

      Appeal from a judgment of the United States District Court for the Western

District of New York (Geraci, J.).

      UPON      DUE      CONSIDERATION,          IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Following a guilty plea to threatening to kill a federal prosecutor in violation

of 18 U.S.C. § 115(a)(1)(B), Defendant-Appellant Tony Ivey was sentenced

principally to a term of 20 months’ imprisonment to be followed by three years of

supervised release. On appeal, Ivey challenges the procedural reasonableness of his

sentence. He contends that that his sentence is procedurally unreasonable because

the district court failed to (1) provide reasonable notice that it was contemplating an

upward departure, as required under Fed. R. Crim. P. 32(h); and (2) reference the

new criminal history category it applied when departing upward. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

      We review sentences for procedural and substantive “unreasonableness,”

which “amounts to review for abuse of discretion.” United States v. Cavera, 550

F.3d 180, 187 (2d. Cir. 2008). A district court’s decision to depart upward is

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reviewed for abuse of discretion. United States v. Ashley, 141 F.3d 63, 69 (2d Cir.

1998).

         When a defendant fails to object to an alleged sentencing error before the

district court, we review for plain error. United States v. Villafuerte, 502 F.3d 204,

207 (2d Cir. 2007). An appellate court may, in its discretion, correct a plain error

where “the appellant demonstrates that (1) there is an ‘error’; (2) the error is ‘clear

or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the

appellant’s substantial rights, which in the ordinary case means’ it ‘affected the

outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.’” United States v.

Marcus, 560 U.S. 258, 262 (2010) (alteration in original) (quoting Puckett v. United

States, 556 U.S. 129, 135 (2009)).

                                            I.

         As to Ivey’s argument regarding notice of the contemplated upward

departure under Federal Rule of Criminal Procedure 32(h), the Rule demands that

“before a district court can depart upward on a ground not identified as a ground for

upward departure either in the presentence report or in a prehearing submission by

the Government, Rule 32 requires that the district court give the parties reasonable

notice that it is contemplating such a ruling.” Burns v. United States, 501 U.S. 129,

138 (1991); see also Fed. R. Crim. P. 32(h).

         “The obligation of the district court, prior to sentencing with upward

departure, is to assure itself that the defendant has received notice and has thus

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had adequate opportunity to defend against that risk.” United States v. Contractor,

926 F.2d 128, 131 (2d Cir. 1991). “So long as the defendant is adequately warned

that he faces the possibility of an upward departure so that he will not be unfairly

surprised and will have adequate opportunity to argue against it, the concern is

satisfied, regardless of whether the defendant receives notice from the judge or from

another source.” Id. at 131–32. The Government contends that because Ivey did

not raise an objection before the district court, he must demonstrate that the

district court committed plain error, which he fails to do because the PSR put him

on notice of the potential for an upward departure. See Fed. R. Crim. P. 52(b).

      We conclude that Ivey cannot demonstrate plain error. Indeed, the specific

ground for the district court’s departure—inadequacy of initial criminal history

category—is identified in the PSR. While the PSR does not explicitly state that the

district court could depart on this ground, it does provide notice that the court “may

want to consider an upward departure based on inadequacy of criminal history

category.” Presentence Report at ¶105. Because Ivey has not demonstrated that

the district court committed error in relying on a ground that was not “identified for

departure,” he cannot show plain error occurred. See, e.g., United States v. Belliard,

308 F. App’x 488, 489–90 (2d Cir. 2009) (summary order) (concluding that appellant

failed to “demonstrate that the district court erred in relying on a ground that was

not ‘identified for departure’” where PSR “provide[d] notice that the district court

might consider” upward departure).



                                           4
                                                II.

       Next, Ivey claims that the district court failed to reference the new criminal

history category it applied when departing upward, as required by U.S.S.G. §

4A1.3(a), and that the district court “wrongly considered prior offenses” in

determining his criminal history category. Appellant’s Br. at 24. Section 4A1.3 of

the Guidelines authorizes an upward departure from the prescribed range when the

sentencing court finds that a defendant’s criminal history category “substantially

under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).

       Section 4A1.3(a)(4) guides sentencing courts as to the extent of such

departures. Subdivision (A) instructs that where, as here, a sentencing court

upwardly departs from any criminal history category lower than category VI,1 “the

court shall determine the extent of a departure . . . by using, as a reference, the

criminal history category applicable to defendants whose criminal history or

likelihood to recidivate most closely resembles that of the defendant’s.” Id. §

4A1.3(a)(4)(A) (emphasis added). We have held, though, that “[a] sentencing court

1 Subdivision B suggests an approach for upward departures from criminal history category VI (the

highest category):

               In a case in which the court determines that the extent and nature of
               the defendant's criminal history, taken together, are sufficient to
               warrant an upward departure from Criminal History Category VI,
               the court should structure the departure by moving incrementally
               down the sentencing table to the next higher offense level in Criminal
               History Category VI until it finds a guideline range appropriate to the
               case.

U.S.S.G. § 4A1.3(a)(4)(B).


                                                 5
considering an upward departure under [section] 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” before

arriving at an appropriate sentence. United States v. Simmons, 343 F.3d 72, 78 (2d

Cir. 2003). Indeed, “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). Because Ivey did not object to the district court’s explanation of its

upward departure, we review for plain error. See United States v. Cassesse, 685

F.3d 186, 188 (2d Cir. 2012).

      Here, the district court departed from a Guidelines range of six to twelve

months’ imprisonment (based on a criminal history category II) to a sentence of 20

months’ imprisonment (a middle-of-the-range sentence implicitly based on a

criminal history category V) on the ground that the defendant’s applicable criminal

history category II did not adequately “capture” the seriousness of Ivey’s past

criminal record. The court stressed Ivey’s “history of both domestic violence and

violence in the community,” “pattern of criminal violent activity over decades,” and

past offenses involving violent assaults. App’x at 86. In reaching this conclusion,

however, the court did not explicitly “us[e], as a reference, the criminal history

category applicable to defendants whose criminal history or likelihood to recidivate

most closely resembles that of the defendant’s” as contemplated by section

4A1.3(a)(4)(A).



                                           6
       Although the district court was “not required . . . to pause at each category

above [category II] to consider whether [they] adequately reflect[ed] the seriousness

of the defendant’s record,” Simmons, 343 F.3d at 78, it does not follow that it was

free to disregard the methodology set forth in section 4A1.3(a)(4)(A) by failing to

identify any criminal history category whatsoever. In other words, the district court

acting under these circumstances erred by failing to explain why its implied choice

of criminal history V was more appropriate than criminal history II.2 We need not

resolve that issue, though, because even assuming that there was such an error,

Ivey has failed to demonstrate that it was plain error. He has not established how

any such error might have affected his substantial rights; it is clear from the record

that the outcome at sentencing would have been no different absent the error. See

Marcus, 560 U.S. at 262 (affecting substantial rights, means, in the ordinary case,

affecting “the outcome of the district court proceedings” (internal quotation marks

omitted)).

       Last, Ivey’s contention that the district court improperly considered his minor

offenses in assessing the criminal history category finds no support in the record.

In fact, the district court expressly acknowledged that not every one of Ivey’s past

offenses factored into its determination to depart upward, explaining that “[e]ven

though some [past offenses] involved violations, a number of instances . . . involved

2 Indeed, unlike section 4A1.3(a)(4)(B), which merely suggests a methodology, section 4A1.3(a)(4)(A)

appears to mandate one. Compare U.S.S.G. § 4A1.3(a)(4)(B) (providing that “the court should” follow
a particular methodology), with id. § 4A1.3(a)(4)(A) (providing that “the court shall” follow a
particular methodology); see United States v. Harris, 13 F.3d 555, 559 (2d Cir. 1994) (interpreting
section 4A1.3(a)(4)(B) as suggesting rather than mandating a methodology because, inter alia, it uses
the word “should” rather than “shall”).

                                                 7
violent incidents.” App’x at 88; cf. Ashley, 141 F.3d at 70 (concluding that upward

departure was not unreasonable where “the court noted that while many of them

were minor offenses, several others involved physical conflicts with arresting

officers or other assaults with intent to inflict bodily injury”). The record clearly

illustrates that the district court’s upward departure was based on the violent

nature of Ivey’s criminal history and not solely on the number of offenses. The

district court’s upward departure was therefore not unreasonable.

      We have considered all of Ivey’s remaining arguments on appeal and

determine they are without merit. For the foregoing reasons, the judgment of the

district court is AFFIRMED.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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