         11-1369-cr
         United States v. MacDaniel

                                 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 16th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                J. GARVAN MURTHA,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      -v.-                                                        11-1369-cr
19
20       HAROLD GEORGE MACDANIEL,
21
22                                     Defendant-Appellant.
23
24
25       FOR APPELLANT:                LAWRENCE GERZOG, New York, NY.
26
27       FOR APPELLEE:                 DOUGLAS P. MORABITO, Assistant United
28                                     States Attorney (Robert M. Spector,
29                                     Assistant United States Attorney, on the

                *
                The Honorable J. Garvan Murtha, of the United States
         District Court for the District of Vermont, sitting by
         designation.
1                       brief), for David B. Fein, United States
2                       Attorney for the District of Connecticut,
3                       New Haven, CT.
4
5         Appeal from the United States District Court for the
6    District of Connecticut (Chatigny, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the district court be

10   AFFIRMED.

11       Plaintiff-Appellant Harold George MacDaniel appeals

12   from a judgment of conviction entered in the United States

13   District Court for the District of Connecticut (Chatigny,

14   J.), following his guilty plea to one count of possession of

15   ammunition by a convicted felon in violation of 18 U.S.C.

16   § 922(g)(1).   The district court sentenced MacDaniel

17   principally to a term of 57 months’ imprisonment and three

18   years’ supervised release.   We assume the parties’

19   familiarity with the underlying facts and procedural history

20   of the case.

21       MacDaniel challenges his three-year term of supervised

22   release as both procedurally and substantively unreasonable.

23   Our review of the reasonableness of a sentence is “akin to

24   review for abuse of discretion.”   United States v.

25   Fernandez, 443 F.3d 19, 26-27 (2d Cir. 2006).   Because

26   MacDaniel failed to assert any objection to his term of

                                   2
1    supervised release to the district court, his challenge on

2    appeal is subject to review for plain error.   See United

3    States v. Villafuerte, 502 F.3d 204, 208-11 (2d Cir. 2007).

4        MacDaniel contends that the district court failed to

5    consider the relevant statutory factors and state its

6    reasons for imposing the supervised release term.     After a

7    thorough review of the record, we conclude that the district

8    court did not err, much less commit plain error, in imposing

9    a three-year term of supervised release.   The term was

10   consistent with the period of supervised release authorized

11   by 18 U.S.C. § 3583(b)(2) and U.S.S.G. § 5D1.2(a)(2).

12   Nothing in the record overcomes the presumption that the

13   district court faithfully considered the applicable

14   statutory factors in imposing the term of supervised release

15   as required by 18 U.S.C. § 3583(c).   See Fernandez, 443 F.3d

16   at 30.

17       There is no dispute that the district court considered

18   the statutory factors in determining MacDaniel’s

19   incarceration term.   We find no reason to believe that those

20   factors were considered only in imposing the incarceration

21   aspect of MacDaniel’s sentence.   Indeed, in imposing the

22   special conditions of supervised release—requiring MacDaniel


                                   3
1    to receive substance abuse and mental health treatment and

2    to refrain from possessing a dangerous weapon—the district

3    court considered the particular facts of his offense

4    conduct, as well as his personal history and

5    characteristics.   In the absence of record evidence

6    suggesting otherwise, we cannot conclude that the district

7    court considered the statutory factors only with respect to

8    the conditions of supervised release and not to the length

9    of the term of supervised release.   See United States v.

10   Sero, 520 F.3d 187, 192 (2d Cir. 2008).

11         Moreover, because the district court stated reasons for

12   the sentence when it imposed the incarceration term and set

13   the special conditions of supervised release, it adequately

14   articulated its basis for the supervised release term.      See

15   id.   The district court provided ample justification for

16   both the term length and special conditions of supervised

17   release by explicitly adopting the factual findings of the

18   presentence report (“PSR”) pertaining to MacDaniel’s offense

19   conduct, criminal record, and history of substance abuse and

20   mental health issues.

21         Finally, MacDaniel’s conclusory claim of substantive

22   unreasonableness is without merit.   In considering the


                                   4
1    substantive reasonableness of a sentence, we “take into

2    account the totality of the circumstances, giving due

3    deference to the sentencing judge’s exercise of discretion,

4    and bearing in mind the institutional advantages of district

5    courts.”     United States v. Cavera, 550 F.3d 180, 190 (2d

6    Cir. 2008) (en banc).     The district court adopted the

7    factual findings of the PSR without any objection from

8    MacDaniel.     These findings fully support the district

9    court’s decision to impose a three-year term of supervised

10   release.     Because the term of supervised release was “within

11   the range of permissible decisions,” we will not set it

12   aside as substantively unreasonable.     United States v.

13   Rigas, 583 F.3d 108, 122 (2d Cir. 2009) (internal quotation

14   marks omitted).

15       For the foregoing reasons, the judgment of the district

16   court is hereby AFFIRMED.

17
18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21




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