11-0519-cr
United States v. Briggs

                             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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 25th day of January, two thousand twelve.

Present: ROBERT A. KATZMANN,
         GERARD E. LYNCH,
                     Circuit Judges,
         LEWIS A. KAPLAN
                     District Judge.*
____________________________________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                            -v-                            No. 11-0519-cr

THEODORE BRIGGS,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                    PHILIP L. WEINSTEIN, Federal Defenders of New York,
                                            Inc., Appeals Bureau, New York, N.Y.

For Appellee:                               EMILY BERGER (Celia A. Cohen, on the brief),
                                            Assistant United States Attorneys, of counsel, for
                                            Loretta E. Lynch, United States Attorney for the
                                            Eastern District of New York



        *
        The Honorable Lewis A. Kaplan, United States District Judge for the Southern District
of New York, sitting by designation.
       Appeal from the United States District Court for the Eastern District of New York (Ross, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Theodore Briggs (“Briggs”) appeals from a judgment entered on

February 8, 2011, by the United States District Court for the Eastern District of New York (Ross,

J.), revoking his supervised release and sentencing him to five years’ imprisonment with no

supervision to follow. Briggs violated his supervised release when he served as the getaway driver

for a violent robbery committed on August 28, 2009. We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

       On appeal, Briggs principally contends that his sentence was substantively unreasonable

because the district court imposed the maximum statutory sentence without considering his

cooperation with state authorities following his violation of supervised release. This argument lacks

merit. The Court reviews all sentences, including sentences for violations of supervised release, for

reasonableness. United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir. 2008). We review the

substantive reasonableness of a sentence under “an abuse-of-discretion standard, taking into account

the totality of the circumstances.” United States v. Rigas, 583 F.3d 108, 121 (2d Cir. 2009) (internal

quotation marks omitted). A district court’s findings will only be set aside as substantively

unreasonable “in exceptional cases where the trial court’s decision cannot be located within the

range of permissible decisions.” Id. at 122 (internal quotation marks omitted). When imposing a

sentence, a district court should consider a defendant’s cooperation with authorities as part of the

nature and circumstances of the offense history and the characteristics under § 3553(a). United

States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006). However, in the absence of procedural error

or an ultimately unreasonable sentence, this Court generally “will not second guess the weight (or


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lack thereof) that the judge accorded to a given factor or to a specific argument made pursuant to

that factor.” Id. at 34.

        The record indicates that although the district court imposed the statutory maximum

sentence, it did consider Briggs’s cooperation with state prosecutors. During sentencing, the district

court noted that Briggs’s cooperation with state authorities had resulted in an early transfer to federal

custody and an agreement with the state court which would reduce his overall time in prison by

approximately two years. The court, therefore, recognized Briggs’s cooperation and declined to

further reduce his sentence on that basis. In refusing to impose a shorter sentence, the court

considered the many other factors weighing against leniency, including his history of “repeated

escalating and virtually uninterrupted criminality,” his likelihood of recidivism, and the danger he

poses to society. Accordingly, we find that the district court considered Briggs’s cooperation with

state authorities and acted within its discretion by imposing the statutory maximum sentence.

        Next, Briggs contends that his federal sentence for violation of supervised release is

unreasonable because it exceeds the state sentence for the underlying offense. This argument is also

unavailing. A violation of supervised release constitutes a “breach of trust” that may warrant

sanction “in addition” to any sentence imposed for the new conduct. U.S.S.G Ch. 7, Pt. A,

Introduction. Under the circumstances, it was not unreasonable for the district court to impose a

term of imprisonment that exceeded the length of the sentence imposed by the state court.

        We have considered Briggs’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                                    FOR THE COURT:
                                                    CATHERINE O’HAGAN WOLFE, CLERK




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