12-1820-cr
United States v. Henry


                              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
ASUMMARY 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 3rd day of October, two thousand thirteen.

PRESENT: REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 JOHN F. KEENAN,
                                 District Judge.*
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.
                                                                            No. 12-1820-cr
RASHEEM HENRY,
                                 Defendant-Appellant.
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FOR APPELLANT:                                   Michele Hauser, Esq., New York, New York.

FOR APPELLEE:                                    David C. James, Daniel S. Silver, Assistant
                                                 United States Attorneys, for Loretta E. Lynch,
                                                 United States Attorney for the Eastern District of
                                                 New York, Brooklyn, New York.

* Judge John F. Keenan, of the United States District Court for the Southern District of New
York, sitting by designation.

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       Appeal from an order of the United States District Court for the Eastern District of

New York (Eric N. Vitaliano, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on April 25, 2012, is AFFIRMED.

       Rasheem Henry was convicted in 2007 of being a felon in possession of a firearm, see

18 U.S.C. § 922(g)(1), a crime he committed while on parole for his underlying New York

State robbery conviction.      Sentenced to 37 months’ incarceration and three years’

supervised release on the § 922(g) conviction, Henry now appeals the 12-month prison

sentence imposed on his guilty plea to violating supervision by unlawfully possessing a

controlled substance. See 18 U.S.C. § 3583(e)(3), (h). Henry contends that the sentence,

one month above the top of his five-to-eleven month advisory Guidelines range, was

substantively unreasonable. We assume the parties’ familiarity with the underlying facts

and the record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

       Where, as in this case, a defendant identifies no procedural error in sentencing, we

accord considerable deference to a district court’s choice of sentence, mindful that a range of

sentences, not limited to the Guidelines range, can be reasonable in a given case. See

United States v. Jones, 531 F.3d 163, 178 (2d Cir. 2008). We will identify a sentence as

substantively unreasonable only if it falls outside that broad range. See United States v.

Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). That is not this case.




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       Even if, as Henry contends, his supervision violation, i.e., the possession of seven

small bags of marijuana, were not to be viewed as egregious conduct in the abstract, the

district court was entitled to consider it as such—at least to the extent of a one-month

variance from the Guidelines range—given Henry’s possession of the marijuana in the

Probation Office when reporting for supervision. Such action indicates a bold disregard

both for the law and for the supervision intended to assist Henry in living a law-abiding life.

Further, after arraignment on the violation, Henry missed several Probation reporting

appointments and court appearances, and was a fugitive for approximately a year. Even

without regard to Henry’s arrests during this time for relatively minor infractions of state

law, these circumstances preclude us from concluding that a 12-month sentence was outside

the range of reasonableness in this case. See United States v. Cavera, 550 F.3d at 189.

       United States v. Sindima, 488 F.3d 817 (2d Cir. 2007), on which Henry relies is not to

the contrary. The district court here adequately explained its sentence. See United States

v. Verkhoglyad, 516 F.3d 122, 136 (2d Cir. 2008) (stating that explanation required by

Sindima for non-Guidelines sentence need not be “extensive or detailed”). Moreover, the

record confirms the district court’s consideration of the mitigating factors that Henry

emphasizes on appeal. Thus, we conclude that Henry’s reasonableness challenge to his

sentence is meritless.




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      We have considered Henry’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, the order of the district court is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O=HAGAN WOLFE, Clerk of Court




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