     09-3829-cr
     United States v. Shyne



                          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 .


 1            At a stated term of the United States Court of                     Appeals
 2       for the Second Circuit, held at the Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 7 th day of September, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                REENA RAGGI,
 9                         Circuit Judge,
10                JED S. RAKOFF,
11                         District Judge. *
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                         09-3829-cr
19
20       DOUGLAS SHYNE,
21
22                    Defendant-Appellant,
23

                *
               District Judge Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.

                                                  1
 1   NATASHA SINGH, CHRISTINE RICHARDSON,
 2   NATHANIEL SHYNE, TOYBE BENNETT,
 3   ROBERTO MONTGOMERY, EPHRAIM
 4   RICHARDSON, NARESH PITAMBAR, JASON
 5   WATLER, STEVEN RIDDICK, NATHANIEL
 6   ALEXANDER, TIMOTHY MONTGOMERY,
 7   ANTHONY PRINCE, MARION JONES,
 8
 9            Defendants.
10   - - - - - - - - - - - - - - - - - - - -X
11
12   FOR APPELLANT:    James M. Branden, Law Office of James M.
13                     Branden, New York, NY.
14
15   FOR APPELLEE:     E. Danya Perry, Daniel W. Levy, and
16                     Katherine Polk Failla, Assistant United
17                     States Attorneys, for Preet Bharara,
18                     United States Attorney for the Southern
19                     District of New York, United States
20                     Attorney’s Office for the Southern
21                     District of New York, New York, NY.
22
23        Appeal from a judgment of the United States District
24   Court for the Southern District of New York (Karas, J.).
25
26        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
27   AND DECREED that the appeal be DISMISSED in part and the
28   judgment of the district court be AFFIRMED in part.
29
30        Defendant-appellant Douglas Shyne appeals from the
31   judgment of conviction entered by the United States District
32   Court for the Southern District of New York (Karas, J.) ,
33   principally sentencing him to 140 months of imprisonment and
34   five years of supervised release. We assume the parties’
35   familiarity with the underlying facts, the procedural
36   history, and the issues presented for review.
37
38        On March 19, 2007, Shyne pleaded guilty to Counts One,
39   Two, and Four through Fourteen of the operative indictment,
40   collectively charging him with conspiracy to commit bank
41   fraud, substantive bank fraud, and conspiracy to commit
42   money laundering in relation to a fraudulent check scheme.
43   The written plea agreement contained an appeal-waiver
44   provision, under which Shyne agreed not to “file a direct
45   appeal, nor litigate under 28 U.S.C. § 2255 and/or § 2241,
46   any sentence within or below the Stipulated Guidelines Range

                                  2
 1   of 188 to 235 months’ imprisonment.”  At the same time, it
 2   was further “agreed that any appeal as to the defendant’s
 3   sentence that is not foreclosed by this provision will be
 4   limited to that portion of the sentencing calculation that
 5   is inconsistent with (or not addressed by) the above
 6   stipulation.”
 7
 8        On appeal, Shyne contends that the appeal-waiver
 9   provision is unenforceable because in addition to the 140
10   months of imprisonment, he was also sentenced to five years
11   of supervised release, payment of restitution, and payment
12   of a special assessment. This argument falls on the plain
13   language of the appeal-waiver provision: Shyne waived his
14   right to appeal any term of imprisonment less than 235
15   months, while preserving his right to appeal any other
16   component of the imposed sentence. See United States v.
17   Oladimeji, 463 F.3d 152, 156-57 (2d Cir. 2006) (construing
18   an appeal waiver to “give up any challenges to the
19   lawfulness of [the] conviction and the determination of
20   [the] prison sentence,” but not to give up any challenges to
21   the imposed restitution); United States v. Cunningham, 292
22   F.3d 115, 117 (2d Cir. 2002) (limiting an appeal waiver to
23   the term of imprisonment and concluding that the defendant
24   “did not waive his right to appeal the length of the
25   supervised release term”). Because the appeal-waiver
26   provision is thus enforceable with respect to the 140 months
27   of imprisonment, Shyne’s appeal challenging that portion of
28   the sentence is dismissed.
29
30        In the district court, Shyne did not challenge the
31   reasonableness of the five year term of supervised release.
32   We therefore review for plain error and we find no error--
33   let alone any plain error. The district court carefully
34   evaluated the relevant factors set forth in 18 U.S.C. §
35   3553(a) and thoroughly articulated the reasons for the
36   imposed sentence. In view of Shyne’s (i) three prior felony
37   convictions, (ii) continuation of criminal conduct after his
38   arrest, (iii) prior violations of previous terms of
39   supervised release, and (iv) admission that he would be
40   tempted to engage in future criminal conduct, the district
41   court’s imposition of a five year term of supervised release
42   will evidently be needed to “assist [Shyne] in [his]
43   transition to community life.” See United States v.
44   Johnson, 529 U.S. 53, 59 (2000). Further, we review for
45   plain error Shyne’s argument that the district court should
46   have sentenced him to a shorter term of supervised release
47   because it had departed downward in sentencing him to a term

                                  3
 1   of imprisonment shorter than that provided in the applicable
 2   Guidelines range, and we identify no such error here because
 3   a district court may reasonably “hedge” its imposition of a
 4   shorter term of imprisonment by imposing a longer term of
 5   supervised release. United States v. Rivera, 192 F.3d 81,
 6   87-88 (2d Cir. 1999). We conclude that the five year term
 7   of supervised release was reasonable and therefore affirm
 8   the judgment of the district court with respect to that
 9   portion of the sentence.
10
11        We have considered all of Shyne’s contentions on this
12   appeal and have found them to be without merit.
13   Accordingly, the appeal is DISMISSED in part and the
14   judgment of the district court is AFFIRMED in part.
15
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19




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