15-3535
United States v. Winn

                               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, at 40 Foley Square, in the City of New York, on the 3rd
day of November, two thousand sixteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RALPH K. WINTER,
         REENA RAGGI,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                        Appellee,
                 v.                                                   No. 15-3535

EULION ALLEN, a/k/a Lele, SAYWONE WARE,
JOHN HINES, a/k/a Blue,

                        Defendants,

DEREK WINN, a/k/a Suey,

                  Defendant-Appellant.
________________________________________________

For Appellee:                       DAVID C. PITLUCK, Assistant United States Attorney (Peter A.
                                    Norling, Assistant United States Attorney, on the brief), for Robert L.
                                    Capers, United States Attorney for the Eastern District of New York,
                                    Brooklyn, NY.

For Defendant-Appellant:            FLORIAN MIEDEL, Miedel & Mysliwiec LLP, New York, NY.


           Appeal from the United States District Court for the Eastern District of New York

   (Irizarry, J.).
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          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

          Defendant Derek Winn appeals from a judgment of the United States District Court for

the Eastern District of New York (Irizarry, J.) sentencing him principally to thirty-six months’

imprisonment for violating the terms and conditions of his supervised release. We assume the

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

appeal.

          Winn was originally convicted in the Eastern District of New York on narcotics and

firearms charges. After completing his custodial sentence and serving several years of his term of

supervised release, Winn absconded from supervision and was eventually arrested in Georgia

over two years later. He pleaded guilty to a fraud offense in the Southern District of Georgia and

was sentenced to twenty-four months’ incarceration. He subsequently pleaded guilty in the

Eastern District of New York to violating the terms and conditions of his supervised release by

committing a new federal offense. The district court sentenced him to thirty-six months—well

above the Guidelines range of eight to fourteen months—to be served consecutively to his

sentence in the Southern District of Georgia.

          In explaining that above-Guidelines sentence, the court first noted that “the sentence on a

violation of supervised release reflects something different than punishment for the new crime

that has been committed. It is a punishment of a violation of the trust of the Court.” App. 72. The

court then discussed several factors that influenced Winn’s sentence. The court noted that Winn

had received a significant downward variance on his underlying sentence based on his

cooperation and the court’s belief in his potential. Next, the court observed that it had not

imposed any significant sanctions for Winn’s previous violations of supervised release, such as

violating curfew, using marijuana, and associating with felons. In response to Winn’s argument

that he left New York because he received threats from the gang members against whom he had
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cooperated with the government, the court stated that “the bottom line is that the FBI and

probation did do everything within [their] power to protect you whenever you complained of

threats,” but that Winn “decided to abscond.” App. 74. Finally, it discussed Winn’s conduct in

Georgia, stating:

       [T]he fact of the matter is that you were in a location where crimes were
       being committed. You were with an underage girl. I’m not buying this
       nonsense of, well, you know, she looked older, she said she was older.
       That’s garbage. You had barber skills. You had no need to engage in the
       crime that you ultimately got convicted for. Those are transferrable skills.
       You had absconded for a period of two years.

App. 74. The court concluded that an above-Guidelines sentence was warranted because Winn

“seriously violated the trust of the Court,” and “violated every opportunity that the Court and

probation gave [him] to do better for [him]self, to continue to help [his] daughter and to continue

to do well.” App. 75.

       Winn argues that the district court committed procedural error by failing to give specific

reasons for imposing an above-Guidelines sentence. A sentencing court is required to “state in

open court the reasons for its imposition of [a] particular sentence.” 18 U.S.C. § 3553(c); see

also United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (per curiam) (stating that a district

court commits procedural error when it “fails adequately to explain the chosen sentence”

(quoting United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012))). “[W]e do not require

district courts to engage in the utterance of ‘robotic incantations’ when imposing sentences in

order to assure us that they have weighed in an appropriate manner the various section 3553(a)

factors.” United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007) (quoting United States v.

Crosby, 397 F.3d 103, 113 (2d Cir. 2005), abrogated on other grounds by United States v.

Fagans, 406 F.3d 138, 142 (2d Cir. 2005)). Nonetheless, “the district court’s statement of

reasons must at least explain—in enough detail to allow a reviewing court, the defendant, his or

her counsel, and members of the public to understand—why the considerations used as

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justifications for the sentence are ‘sufficiently compelling []or present to the degree necessary to

support the sentence imposed.’” Id. at 86 (internal citation omitted) (quoting United States v.

Rattoballi, 452 F.3d 127, 137 (2d Cir. 2006), abrogated in part on other grounds by Kimbrough

v. United States, 552 U.S. 85 (2007)).

       Because Winn failed to object to the district court’s explanation of his sentence, we

review only for plain error. United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007).

Under that standard, the defendant must demonstrate 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 affects the fairness, integrity or public reputation of
               judicial proceedings.

United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks and alterations

omitted).

       First, Winn argues that the district court’s explanation is insufficient because the reasons

the court gave orally during the sentencing hearing were inconsistent with its written statement

of reasons. Specifically, he argues that the court’s oral explanation focused on his conduct in

Georgia whereas the written explanation referred to the “facts and circumstances of this offense.”

Reading both explanations in their entirety, however, there is no material inconsistency. The

district court’s written explanation contained a paragraph setting forth additional reasons for its

upward variance beyond its generic reference to the “facts and circumstances of this offense,”

and those reasons were substantially similar to those the court articulated in detail at the

sentencing hearing.

       Second, Winn argues that the court improperly relied on uncharged and unproven

conduct, specifically, the fact that he was arrested in a location where crimes were being

committed and that he was with an underage girl. We have held that “conduct underlying

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acquitted or dismissed charges or uncharged conduct may be taken into account in sentencing if

the government establishes that conduct by a preponderance of the evidence.” United States v.

Aldeen, 792 F.3d 247, 254 (2d Cir. 2015). Here, “no hearing occurred and no specific findings

were made” with respect to the circumstances of Winn’s arrest. Id.

       However, not only did Winn fail to dispute these facts at sentencing, he expressly

admitted that they were true. His attorney admitted that, at the time of Winn’s arrest, “he was

staying in a place where there was access device equipment,” App. 59, and was with a sixteen-

year-old girl. Winn himself admitted that he consorted with an underage girl. Accordingly, there

does not appear to be any dispute that these facts are true. Furthermore, the district court

mentioned these facts only in passing, focusing primarily on Winn’s breach of the court’s trust.

Under these circumstances, the district court’s failure to make an express factual finding does not

“seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” Marcus,

560 U.S. at 262 (citation and alteration omitted).

       Finally, Winn argues that the district court’s reasons were not sufficiently compelling to

justify the magnitude of its departure from the Guidelines. He faults the district court for failing

to explain why a sentence shorter than thirty-six months would not have sufficed to achieve the

goals of sentencing. However, we have “decline[d] to impose a requirement for such specific

articulation of the exact number of months of an imposed sentence.” United States v. Jones, 460

F.3d 191, 195 (2d Cir. 2006). Here, the district court explained in detail why it considered

Winn’s breach of the court’s trust to be sufficiently serious to merit a sentence substantially

above the Guidelines range. This explanation was sufficient to “inform[] the defendant of the

reasons for his sentence,” to “permit[] meaningful appellate review,” and to “enabl[e] the public

to learn why the defendant received a particular sentence.” Villafuerte, 502 F.3d at 210.

Accordingly, the district court did not commit procedural error.


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       Winn also challenges the substantive reasonableness of his sentence. We will vacate a

sentence as substantively unreasonable “only in exceptional cases where the trial court’s decision

‘cannot be located within the range of permissible decisions.’” United States v. Cavera, 550 F.3d

180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.

2007)). When reviewing a non-Guidelines sentence, “we may take the degree of variance into

account and consider the extent of a deviation from the Guidelines,” but we “must not employ a

rigid mathematical formula that uses the percentage of a departure as the standard for

determining the strength of the justifications required for a specific sentence.” Id. at 190 (quoting

Gall v. United States, 552 U.S. 38, 47 (2007)) (internal quotation marks omitted).1

        First, Winn argues that the district court’s reliance on the downward variance that he

received at his initial sentencing was erroneous under United States v. Sindima, 488 F.3d 81, 86–

87 (2d Cir. 2007). However, Sindima does not foreclose a district court from imposing an above-

Guidelines sentence based on its previous leniency toward the defendant. To the contrary, the

Guidelines expressly contemplate that practice and provide that “[w]here the original sentence

was the result of a downward departure (e.g., as a reward for substantial assistance) . . . an

upward departure may be warranted.” U.S.S.G. § 7B1.4 n.4; see also United States v.

Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008) (upholding sentence “in excess of the policy

statement range” for probation violation in part because the defendant “had repeatedly betrayed

the trust reflected in the[] lenient sentences” previously imposed). Sindima merely requires the

court, when relying on a factor that is already incorporated into the Guidelines range to impose

an above-Guidelines sentence, to “articulate specifically the reasons that this particular

defendant’s situation is different from the ordinary situation covered by the [G]uidelines

1
 Winn did not challenge the substantive reasonableness of his sentence in the district court.
“[T]his court has not determined whether [plain error analysis] applies to unpreserved
substantive challenges to a sentence.” United States v. Verkhoglyad, 516 F.3d 122, 134 (2d Cir.
2008). We need not decide this question here, as Winn’s claim would fail even under an abuse-
of-discretion standard. See United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014).
                                                 6
calculation.” 488 F.3d at 87 (quoting United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.

2006)). The district court fulfilled this requirement here.

        Second, Winn argues that the district court’s written explanation emphasized the “facts

and circumstances of this offense,” and thus failed to heed the Sentencing Commission’s

directive that “at revocation the court should sanction primarily the defendant’s breach of trust,

while taking into account, to a limited degree, the seriousness of the underlying violation and the

criminal history of the violator.” Sindima, 488 F.3d at 86 (quoting U.S.S.G. ch. 7, pt. A.3(b)).

This argument ignores the record. In fact, the district court appropriately emphasized Winn’s

breach of trust, explaining that the sentence was based on the leniency Winn had received when

first sentenced, the leniency he received for his previous violations of supervised release, his

decision to abscond from supervision, and his failure to make use of the skills he acquired under

supervision. Under these circumstances, the sentence imposed by the court was not “shockingly

high, shockingly low, or otherwise unsupportable as a matter of law.” Rigas, 583 F.3d at 123.

       We have considered all of Winn’s arguments and find them to be without merit. For the

reasons given, we AFFIRM the judgment of the district court.

                                                       FOR THE COURT:
                                                       Catherine O=Hagan Wolfe, Clerk




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