     12-5035-cr
     United States v. Chandler
 1
 2                                         UNITED STATES COURT OF APPEALS
 3                                            FOR THE SECOND CIRCUIT
 4
 5                                               SUMMARY ORDER
 6
 7           Rulings by summary order do not have precedential effect. Citation to a summary
 8   order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
 9   Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order
10   in a document filed with this court, a party must cite either the Federal Appendix or an
11   electronic database (with the notation “summary order”). A party citing a summary order
12   must serve a copy of it on any party not represented by counsel.
13
14          At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
16   York, on the 6th day of November, two thousand and thirteen.
17
18   PRESENT:
19
20              JOHN M. WALKER, JR.,
21              JOSÉ A. CABRANES,
22              RAYMOND J. LOHIER, JR.,
23                                   Circuit Judges.
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25   UNITED STATES OF AMERICA,
26
27                        Appellee,
28
29                                  -v.-                                                              No. 12-5035-cr
30
31   ANDRE CHANDLER,
32
33                         Defendant-Appellant.
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35
36   FOR DEFENDANT-APPELLANT:                                                  Barry D. Leiwant, Federal Defenders of New
37                                                                             York, Inc., New York, NY.
38
39   FOR APPELLEE:                                                             Jo Ann M. Navickas, Alicyn L. Cooley,
40                                                                             Assistant United States Attorneys, for Loretta
41                                                                             E. Lynch, United States Attorney for the
42                                                                             Eastern District of New York, Brooklyn, NY.
43




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44           Appeal from the judgment, entered November 16, 2012, of the United States District Court
45   for the Eastern District of New York (Arthur D. Spatt, Judge).

46            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
47   AND DECREED that the sentence of the District Court is AFFIRMED and the cause
48   REMANDED for the sole purpose of allowing the District Court to amend the written judgment
49   to satisfy its ministerial duty to memorialize the stated reasons for the sentence, as required by 18
50   U.S.C. § 3553(c)(2).

51           Defendant Andre Chandler appeals the judgment of the District Court insofar as it imposed
52   a sentence principally of 24 months’ imprisonment after a plea of guilty to two charges of violating
53   the terms of his supervised release (“supervised release”). Chandler contends that the sentence
54   imposed by the District Court was both procedurally and substantively unreasonable.

55                                            BACKGROUND

56           In January 2003, Chandler pleaded guilty to possession with intent to distribute a substance
57   containing cocaine base in an amount of five grams or more, in violation of 21 USC §§ 841(a)(1)
58   and 841(b)(1)(B)(iii). On May 15, 2003, he was sentenced by Judge Spatt to 78 months’
59   imprisonment and five years’ supervised release. In April 2009, Chandler pleaded guilty to a
60   separate offense of escape from the custody of the United States Attorney General, in violation of
61   18 U.S.C. § 751(a). He was sentenced by Judge Matsumoto to nine months’ imprisonment and three
62   years’ supervised release, to be served concurrently with the term of supervised release imposed by
63   Judge Spatt.

64           Chandler’s term of supervised release commenced on April 17, 2009. On September 2,
65   2009, Chandler violated his supervised release by engaging in new criminal conduct. Specifically, he
66   was arrested and pleaded guilty in New York state court to attempted criminal possession of a
67   controlled substance in the fifth degree and attempted assault in the second degree.

68           After his release from state custody, Chandler was arrested for violation of his supervised
69   release. He then pleaded guilty before the District Court to two violations of supervised release
70   predicated on his September 2, 2009 offense conduct.

71           The United States Probation Office (“Probation Office”) calculated Chandler’s Guidelines
72   range as eight to fourteen months. However, both the Probation Office and the Government
73   recommended a sentence of three years, the statutory maximum.

74           At Chandler’s sentencing, which was conducted the same day as his guilty plea, Judge Spatt
75   imposed a sentence principally of 24 months’ imprisonment, to be followed by supervised release
76   for three years. The sentence imposed was ten months longer than the top of the range
77   recommended by the applicable United States Sentencing Commission policy statement.


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 78                                                       DISCUSSION

 79            “Criminal sentences are generally reviewed for reasonableness, which requires an
 80   examination of the length of the sentence (substantive reasonableness) as well as the procedure
 81   employed in arriving at the sentence (procedural reasonableness).” United States v. Chu, 714 F.3d 742,
 82   746 (2d Cir. 2013) (internal quotation marks omitted). As we have explained, “[a] district court
 83   commits procedural error where it fails to calculate (or improperly calculates) the Sentencing
 84   Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.]
 85   § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain
 86   the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall v. United
 87   States, 552 U.S. 38, 51 (2007)). A district court is said to err “substantively” only in exceptional
 88   cases, “where the trial court’s decision cannot be located within the range of permissible decisions.”
 89   United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal citation omitted).
 90   “[W]hen conducting substantive review, we take into account the totality of the circumstances,
 91   giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the
 92   institutional advantages of district courts.” Id. at 190.

 93           Because Chandler did not object at sentencing to the District Court’s alleged failure to
 94   explain its reasoning, we review his procedural challenge for “plain error.” United States v. Villafuerte,
 95   502 F.3d 204, 208 (2d Cir. 2007); see Puckett v. United States, 556 U.S. 129, 135 (2009) (explaining
 96   “plain error” review).

 97                                          A. “Procedural Unreasonableness”

 98           Chandler contends the District Court erred by failing to state in open court, and in writing as
 99   part of its judgment, the specific reasons for imposing an above-Guidelines sentence, as required by
100   18 U.S.C. § 3553(c)(2).1

101           We have reviewed the transcript of the District Court’s sentencing proceedings, and
102   conclude that the explanation requirement of § 3553(c) has been sufficiently satisfied to preclude a
103   finding of plain error.

      1
          18 U.S.C. § 3553(c) reads, in relevant part:

                 The court, at the time of sentencing, shall state in open court the reasons for its imposition of the
                 particular sentence, and, if the sentence--
                          (1) is of the kind, and within the range, described in subsection (a)(4) and that range
                          exceeds 24 months, the reason for imposing a sentence at a particular point within the
                          range; or
                          (2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific
                          reason for the imposition of a sentence different from that described, which reasons must
                          also be stated with specificity in a statement of reasons form issued under section
                          994(w)(1)(B) of title 28, . . . .




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104            As a general rule, “we presume, in the absence of record evidence suggesting otherwise, that
105   a sentencing judge has faithfully discharged her duty to consider the statutory factors.” United States
106   v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). “Section 3553(c) requires no specific formulas or
107   incantations; rather, the length and detail required of a district court’s explanation varies according
108   to the circumstances.” United States v. Cassesse, 685 F.3d 186, 192 (2d Cir. 2012). Where, as here, a
109   district court imposes an above-Guidelines sentence, a “higher descriptive obligation” is triggered.
110   Id. at 193. However, the requirements of section 3553(c) have “likely been satisfied when a court’s
111   statements meet the goals ‘of (1) informing the defendant of the reasons for his sentence, (2)
112   permitting meaningful appellate review, (3) enabling the public to learn why the defendant received a
113   particular sentence, and (4) guiding probation officers and prison officials in developing a program
114   to meet the defendant’s needs.’” Id. at 192–93 (quoting Villafuerte, 502 F.3d at 210).

115           Where, as here, a defendant is being sentenced for a violation of supervised release,
116   § 3553(c)’s requirements are less onerous. We have held that where “‘a court’s statement of its
117   reasons for going beyond non-binding policy statements in imposing a sentence after revoking a
118   defendant’s [supervised release] term need not be as specific as has been required when courts
119   departed from guidelines that were, before Booker, considered to be mandatory.’” United States v.
120   Verkhoglyad, 516 F.3d 122, 132–33 (2d Cir. 2008) (quoting United States v. Lewis, 424 F.3d 239, 245 (2d
121   Cir. 2005)); see also United States v. Hargrove, 497 F.3d 256, 260–61 (2d Cir. 2007) (“We have drawn a
122   sharp divide between initial sentencing and the revocation of supervised release with respect to the
123   protections and safeguards available to the individual.”).

124           Although the District Court arguably should have been more explicit about the connection
125   between its view of the case and its decision to impose an above-Guidelines sentence, the record
126   does not reflect plain error. The record shows that Judge Spatt was aware of the relevant
127   Sentencing Commission policy statements and correctly calculated the advisory Guidelines range.
128   At sentencing, he heard from the prosecutor, the probation officer, defense counsel, and the
129   defendant himself. The facts on which the sentence was based were amply supported by the record.
130   In imposing sentence, the District Court incorporated details of the specific violations of
131   supervised release from Chandler’s plea allocution, which had occurred just minutes before. Judge
132   Spatt noted the “extremely violent” manner in which Chandler attempted to elude arrest, and
133   characterized his conduct as “serious business.” He also consulted the Probation Office’s violation
134   of supervised release report, and noted that Chandler had been unemployed since commencing
135   supervision and his efforts at securing employment were poor. On the basis of this record, we
136   conclude that the District Court adequately fulfilled its duties under § 3553(c), and the error, if any,
137   was not “plain.”

138           Although we conclude that the District Court adequately explained its reasons for the 24-
139   month sentence it imposed, Chandler is correct that the District Court failed to comply with an
140   additional requirement of § 3553(c)(2). Namely, the statute requires that the District Court state



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141   “with specificity” and in writing, “the specific reason for the imposition of a sentence different from
142   [the Guidelines sentence].” Where, as here, the District Court fails to do so, “[t]he principle . . . is
143   that it is the better course—though not required—to remand when the district court does not
144   strictly comply with 18 U.S.C. § 3553(c)(2).” United States v. Elbert, 658 F.3d 220, 224 (2d Cir. 2011);
145   see also United States v. Jones, 460 F.3d 191, 197 (2d Cir. 2006). Accordingly, we do not disturb the
146   judgment or the sentence, but we “remand solely for the court to amend its written judgment to
147   comply with section 3553(c)(2).” United States v. Goffi, 446 F.3d 319, 321–22 (2d Cir. 2006).

148                                   B. “Substantive Unreasonableness”

149          Chandler also contends that the District Court erred by imposing a sentence that was greater
150   than necessary to achieve the statutory goals of sentencing.

151           “Where, as here, we have identified ‘no significant procedural error . . ., a reviewing court
152   then considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion
153   standard,’ taking ‘into account the totality of the circumstances, including the extent of any variance
154   from the Guidelines range.’” United States v. Rigas, 583 F.3d 108, 121–22 (2d Cir. 2009) (omission in
155   original) (quoting Cavera, 550 F.3d at 200 (Raggi, J., concurring)). The District Court’s 24-month
156   sentence—10 months above the Guidelines range, but 12 months below the statutory maximum—is
157   well within the range of permissible decisions in these circumstances. Considering the totality of the
158   circumstances and the conduct that constituted Chandler’s violation of supervised release, we cannot
159   conclude that his sentence constitutes a “manifest injustice,” “shock[s] the conscience,” or is in any
160   other way substantively unreasonable. Id. at 123–24 (internal quotation marks omitted).

161                                              CONCLUSION

162           We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
163   above, we AFFIRM the judgment of the District Court, entered November 16, 2012, and
164   REMAND the cause for the sole purpose of allowing the District Court to amend the written
165   judgment to satisfy its ministerial duty to memorialize the stated reasons for the sentence, as
166   required by 18 U.S.C. § 3553(c)(2).

167

168                                                   FOR THE COURT,
169                                                   Catherine O’Hagan Wolfe, Clerk of Court
170




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