16-1959-cr
United States v. Taylor


16-1959-cr
United States v. Taylor

                                      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 21st day of March, two thousand seventeen.

PRESENT:                  JOSÉ A. CABRANES,
                          RICHARD C. WESLEY,
                                       Circuit Judges,
                          WILLIAM K. SESSIONS III,
                                       District Judge.*


UNITED STATES OF AMERICA,

                                 Appellee,                       16-1959-cr

                                 v.

BLAIR A. TAYLOR,

                                 Defendant-Appellant.


FOR APPELLEE:                                                 Michael F. Perry and Steven D. Clymer,
                                                              Assistant United States Attorneys, for
                                                              Richard S. Hartunian, United States
                                                              Attorney for the Northern District of
                                                              New York, Syracuse, NY.


     *
      William K. Sessions III, Judge of the United States District Court for the District of Vermont,
sitting by designation.

                                                          1
16-1959-cr
United States v. Taylor




FOR DEFENDANT-APPELLANT:                                     Lisa A. Peebles, Federal Public Defender
                                                             (Melissa A. Tuohey, Assistant Federal
                                                             Public Defender, on the brief), Office of the
                                                             Federal Public Defender, Syracuse, NY.

       Appeal from an order of the United States District Court for the Northern District of New
York (Frederick J. Scullin, Jr., Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the June 13, 2016 judgment of the District Court be and
hereby is AFFIRMED.

         Defendant-appellant Blair A. Taylor appeals from a judgment of conviction entered on June
13, 2016, pursuant to a plea of guilty to all three counts of a three-count indictment charging him
with (1) stealing government money, pursuant to 18 U.S.C. § 641, (2) making a false statement in an
application for social security benefits, pursuant to 42 U.S.C. § 408(a)(2), and (3) failing to disclose
an event impacting benefits eligibility, pursuant to 42 U.S.C. § 408(a)(4). The District Court
sentenced Taylor to 12 months’ imprisonment.

        On appeal, Taylor argues that his sentence was both procedurally and substantively
unreasonable. He contends that the District Court committed procedural error by relying on clearly
erroneous facts and by failing to consider all of the relevant factors listed in 18 U.S.C. § 3553(a).
And, he asserts that his sentence was substantively unreasonable because the District Court gave too
much weight to his offense conduct and criminal history and gave too little weight to other
mitigating factors. We assume the parties’ familiarity with the underlying facts and the procedural
history of the case.

         Although we generally review sentences for “abuse of discretion,” see United States v. Bonilla,
618 F.3d 102, 108 (2d Cir. 2010), we review Taylor’s procedural claim for plain error because he did
not object to the District Court’s alleged errors below.1 A district court commits procedural error
“where it fails to calculate the Guidelines range,” “makes a mistake in its Guidelines calculation, or
treats the Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on
a clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United States
v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008). The District Court did not commit any procedural error
that was plain when sentencing Taylor.



     1
     Under a plain error review, a defendant must “demonstrate that (1) there was error, (2) the
error was plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Cook, 722
F.3d 477, 481 (2d Cir. 2013).

                                                    2
16-1959-cr
United States v. Taylor


        Taylor’s claim that the District Court relied on clearly erroneous facts is based on its
statement at sentencing that he had “been doing this for a lifetime now, defrauding the government
and different things of this nature, and while you’re on probation for doing the same thing, you
committed these crimes that you have been found guilty of by your admissions here.” Joint App’x
56. Taylor maintains that those findings were clearly erroneous because he had only one prior
welfare fraud conviction from 2006 and had otherwise not been arrested until he was thirty-four
years old. We disagree.

          While it is true that Taylor had not been arrested until his was thirty-four years old, he was
arrested eight times since turning that age, mostly for theft offenses, which are of a similar “nature”
as the theft, false statement, and failure to disclose charges that he was convicted of here. Moreover,
because he was fifty-one years old at the time of his sentencing, his criminal activity had occurred
over a seventeen-year period. Based on those undisputed facts, it was not error, much less plain
error, for the District Court to conclude that Taylor had been “defrauding the government and
different things of this nature” for “a lifetime.” Joint App’x 56 (alterations added).

         Taylor’s second alleged ground for procedural error—that the District Court failed to
consider all of the section 3553(a) factors—similarly fails. The District Court stated at the outset of
Taylor’s sentencing hearing that it had reviewed and adopted the Presentence Report (the “PSR”). It
also stated that it had reviewed his and the government’s sentencing submissions. Although the
District Court described in detail only its consideration of Taylor’s criminal history when imposing
its sentence, section 3553(c) does not require any “specific formulas or incantations.” United States v.
Cassesse, 685 F.3d 186, 192 (2d Cir. 2012). Instead, “the length and detail required of a district court’s
explanation varies according to the circumstances.” Id. In light of the District Court’s consideration
of the PSR and the parties’ submissions, it was neither error nor plain error for the District Court to
have described only Taylor’s criminal history when imposing sentence. See United States v. Banks, 464
F.3d 184, 190 (2d Cir. 2006) (“[T]here is no requirement that the court mention the required factors,
much less explain how each factor affected the court's decision. In the absence of contrary
indications, courts are generally presumed to know the laws that govern their decisions and to have
followed them.”).

        Taylor’s sentence also was not substantively unreasonable. A sentence is substantively
unreasonable “only if it ‘cannot be located within the range of permissible decisions.’” Bonilla, 618
F.3d at 108 (quoting Cavera, 550 F.3d at 191). Although Taylor failed to object to the reasonableness
of his twelve-month sentence before the District Court, we review his claim for abuse of discretion.
See United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014) (explaining that “[w]e have not
decided whether plain error review applies to an unpreserved challenge to the substantive
reasonableness of a sentence”). Nevertheless, we employ a “deferential abuse-of-discretion
standard.” Id. at 258.



                                                    3
16-1959-cr
United States v. Taylor


         The District Court imposed on Taylor a middle of the Guidelines range sentence of 12
months’ imprisonment. As we have observed before, “in the overwhelming majority of cases,” a
sentence that falls “comfortably within the broad range of sentences . . . would be reasonable in the
particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) abrogated on other
grounds by Rita v. United States, 551 U.S. 338 (2007) (holding that reviewing courts may presume that a
sentence imposed within a properly calculated Guidelines range is reasonable). Taylor’s arguments
on appeal do not compel a different conclusion. While he contends that the District Court failed to
give sufficient to weight to certain mitigating factors, “the weight to be given any § 3553(a) factor, is
a matter firmly committed to the discretion of the sentencing judge and is beyond our [appellate]
review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances
presented.” United States v. Florez, 447 F.3d 145, 158 (2d Cir. 2006) (internal quotation marks
omitted). We see no basis for concluding that Taylor’s twelve-month sentence was not reasonable
under the circumstances presented.

                                           CONCLUSION

        We have considered all of the arguments raised by defendant-appellant on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the June 13, 2016 judgment of
the District Court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




                                                    4
