16-2501-cr
United States v. Hilts


                              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 15th day of June, two thousand seventeen.
PRESENT: RALPH K. WINTER,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 ANN M. DONNELLY,
                                 District Judge.*1
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                                     No. 16-2501-cr

GEORGE R. HILTS, JR.,
                                 Defendant-Appellant.
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 FOR DEFENDANT-APPELLANT:                                 Molly Corbett, Assistant Federal Public
                                                          Defender (James P. Egan, Assistant
                                                          Federal Public Defender, on the brief),
                                                          for Lisa A. Peebles, Federal Public
                                                          Defender for the Northern District of
                                                          New York, Albany, NY.


*1
 Judge Ann M. Donnelly, United States District Court for the Eastern District of New York, sitting by
designation.


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 FOR APPELLEE:                                   Steven D. Clymer, Assistant United
                                                 States Attorney (Michael S. Barnett,
                                                 Assistant United States Attorney, on the
                                                 brief), for Richard S. Hartunian, United
                                                 States Attorney for the Northern District
                                                 of New York, Syracuse, NY.


      Appeal from a July 18, 2016 judgment of the United States District Court for the
Northern District of New York (McAvoy, J.).

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

       Defendant-Appellant George R. Hilts, Jr. appeals from the district court’s judgment
sentencing him to 60 months’ imprisonment after he pleaded guilty to two counts of
distributing heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Specifically,
on two days in April 2014, Hilts sold small amounts of heroin to a confidential informant in
Schenectady, New York. In total, Hilts sold 0.346 grams of heroin to the informant in
exchange for $110. With an extensive criminal history, including two prior felony
drug-trafficking convictions scored as “controlled substance offense[s]” under U.S.S.G.
§§ 4B1.1(a) and 4B1.2(b), the 48-year-old Hilts faced a career offender Guidelines range
of 151 to 188 months’ imprisonment.

       Citing the small quantities of heroin that Hilts sold and the need to avoid unwanted
sentencing disparities under 18 U.S.C. § 3553(a), the district court varied 91 months below
the bottom of Hilts’s applicable Guidelines range and imposed a 60-month term of
imprisonment. It did not, however, grant Hilts’s request for a one-level horizontal
departure from the Guidelines under U.S.S.G. § 4A1.3(b), which he premised on the
argument that the (career offender) criminal history category of VI substantially overstated
the seriousness of his past criminal conduct. On appeal, Hilts challenges the
reasonableness of his sentence.

       We review sentences for procedural and substantive reasonableness. See United
States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). “Review for
‘unreasonableness’ amounts to review for abuse of discretion.” Id. at 187. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal, which we reference only as necessary to explain our decision to affirm.




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                 1. Procedural Reasonableness

       A district court commits procedural error, for example, where it “fails to calculate
the Guidelines range . . . , makes a mistake in its Guidelines calculation, or treats the
Guidelines as mandatory.” Id. at 190 (citation omitted). When, as here, a defendant fails
to object to an alleged procedural sentencing error before the district court, we review only
for plain error.12See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007); accord
United States v. Aldeen, 792 F.3d 247, 253 (2d Cir. 2015).

        The sole purported procedural error that Hilts raises on appeal is the district court’s
refusal to grant his request pursuant to U.S.S.G. § 4A1.3(b) for a one-level horizontal
departure from his criminal history category of VI as a career offender.23 Specifically, he
contends that the court’s denial of his departure request, while simultaneously varying
below the Guidelines range and noting that “a career offender sentence would be excessive
in [his] case,” demonstrates that the court misunderstood its authority to depart from the
career offender Guidelines under § 4A1.3(b).

       “A district court’s decision not to depart downward is within the court’s broad
discretion and rarely reviewed on appeal.” United States v. Young, 811 F.3d 592, 599 (2d
Cir. 2016) (internal quotation marks omitted); accord United States v. Robinson, 799 F.3d
196, 201 (2d Cir. 2015) (noting that decisions not to depart are “generally unreviewable”).
Indeed, “where a defendant has not shown a violation of law or misapplication of the
Guidelines, refusal to depart warrants vacatur only if the defendant points to clear evidence
of a substantial risk that the judge misapprehended the scope of his departure authority.”
Young, 811 F.3d at 599 (emphases added) (alterations and internal quotation marks
omitted). A district court “is not obliged to give reasons for refusing to depart,” and its
“silence concerning its refusal to depart downward, generally, does not support an
inference that [it] misapprehended its scope of authority.” Id. (internal quotation marks
omitted).

1
  Plain error review permits relief only where (1) there is “error,” (2) the error “is plain,” (3) the error
“affects substantial rights,” and (4) the error “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (alterations and internal
quotation marks omitted).
2
  Under U.S.S.G. § 4A1.3(b), a downward departure “may” be warranted if “the defendant’s criminal
history category substantially over-represents the seriousness of [his] criminal history or the likelihood that
[he] will commit other crimes.” We have called this a “‘horizontal departure,’ as it results in a move from
right to left on the sentencing grid.” United States v. Ingram, 721 F.3d 35, 38–39 (2d Cir. 2013) (per
curiam) (Calabresi, J., concurring) (citation omitted). Horizontal departures are “not without constraints,”
see id. at 39, including, most pertinent here, that career offenders may receive only a one-level departure,
from criminal history category VI to V. See U.S.S.G. § 4A1.3(b)(3)(A).


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       Upon review of the record, we find no suggestion, much less “clear evidence” of a
“substantial risk,” that the district court misapprehended its authority to depart under
§ 4A1.3(b). See id.; accord Robinson, 799 F.3d at 201. The district court’s decision to
vary below the career offender Guidelines range is not, as Hilts contends, necessarily
inconsistent with its decision not to depart because § 4A1.3(b) depends on a defendant’s
criminal history. The district court varied below the Guidelines expressly because of
certain § 3553(a) factors, most notably, the small amount of heroin that Hilts sold. See J.A.
52 (“[A]fter reviewing the sentencing factors in the statute, including the nature and
circumstances of the offenses, two small sales . . . and the need to avoid unwanted
sentencing disparities . . . the [c]ourt will impose a non-[G]uidelines sentence based on the
small quantities.”).

       Furthermore, although the court did not also address Hilts’s specific request under
§ 4A1.3(b) for a further reduction, that does not support an inference that the court
misapprehended its departure authority. See Young, 811 F.3d at 599 (noting that silence
does not generally connote misunderstanding). Indeed, the court implicitly rejected
Hilts’s argument (i.e., the criminal history category of VI overstated his previous criminal
conduct) by twice noting that his criminal history was “extensive.” See J.A. 53; see also
Ingram, 721 F.3d at 46 (Raggi, J., concurring) (explaining that lack of procedural error was
“only reinforced” by district court’s references to the defendant’s criminal history,
including that he had “been involved with the law a lot”).

       Finally, “we entertain a strong presumption that the sentencing judge has considered
all arguments properly presented to h[im], unless the record clearly suggests otherwise.”
United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006), abrogated on other grounds by
Rita v. United States, 551 U.S. 338 (2007). The district court indicated that it had
reviewed Hilts’s sentencing memorandum, which presented his departure argument, as
well as the pre-sentence report, which expressly stated that the court had the authority to
depart under § 4A1.3.

        Accordingly, absent clear evidence in the record demonstrating a substantial risk
that the district court misapprehended the scope of its departure authority, Hilts’s challenge
to his sentence on procedural reasonableness grounds is unavailing.

              2. Substantive Reasonableness

        Hilts also contends that his sentence is substantively unreasonable. Essentially, he
asks us to reweigh the § 3553(a) factors, conclude that the district court abused its
discretion by varying only 91 months below the applicable Guidelines range, and instruct
the district court to vary even further. We do not find Hilts’s sentence to be substantively

                                              4
unreasonable because this is not an “exceptional case[] where the trial court’s decision
cannot be located within the range of permissible decisions.” See Cavera, 550 F.3d at 189
(internal quotation marks omitted); see also United States v. Messina, 806 F.3d 55, 66 (2d
Cir. 2015) (noting that even within-Guidelines sentences are substantively reasonable in
“overwhelming majority of cases” (internal quotation marks omitted)). Accordingly,
Hilts’s 60-month sentence––91 months below the applicable Guidelines range––is
substantively reasonable.

        To the extent that Hilts argues that the district court failed to sufficiently consider,
on the record, the § 3553(a) factors, we find his contention unpersuasive. “[A] district
judge imposing a sentence [need not] recite every § 3553(a) argument advanced by a
defendant[,]” and “we presume that the judge properly considered the sentencing factors
even in the absence of a protracted discussion pertaining to each of the factors and all of the
defendant’s contentions.” Young, 811 F.3d at 599. At sentencing, the district court
specifically mentioned that it “ha[d] considered the sentencing factors in 18 U.S. Code,
Section 3553,” and it also referred to the small amount of heroin that Hilts sold, the need to
avoid unwanted sentencing disparities, Hilts’s criminal history, and his behavior during
pre-trial release. See J.A. 52–53.

              3. Conclusion

      We have considered Hilts’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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