11-3679-cr
United States v. Malone


                          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 TO 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 United States Court of International Trade, One Federal Plaza, in the City of New York,
on the 9th day of October, two thousand twelve.

PRESENT: REENA RAGGI,
                 PETER W. HALL,
                 SUSAN L. CARNEY,
                         Circuit Judges.
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UNITED STATES OF AMERICA,
                           Appellee,

                     v.                                                  No. 11-3679-cr

ARDEN MALONE, AKA Arty,
             Defendant-Appellant,

MARKESE BRADLEY, AKA Merc, OMAR MIMS, AKA
O, PHILLIP MURPH, AKA Phillipe Johnson, AKA Shorts,
                         Defendants.
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FOR APPELLANT:                   Michael K. Bachrach, Esq., New York, New York.

FOR APPELLEE:                    Amy Busa, Charles N. Rose, Assistant United States Attorneys,
                                 for Loretta E. Lynch, United States Attorney for the Eastern
                                 District of New York, Brooklyn, New York.
       Appeal from the United States District Court for the Eastern District of New York

(Leonard D. Wexler, Judge).

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

DECREED that the consolidated judgments entered on August 15, 2011, and August 23,

2011, are AFFIRMED.

       Arden Malone’s May 2008 arrest for conspiracy to traffic in cocaine supported both

his conviction, based on a guilty plea to that crime, and an adjudication that he had violated

conditions of supervised release imposed in connection with a 1995 federal conviction for

substantive cocaine trafficking, a crime that resulted in his incarceration through February

15, 2007. Sentenced to 140 months’ imprisonment for the conspiracy crime, and to a

consecutive 36-month prison sentence for the violation of supervised release, Malone appeals

both sentences as unreasonable. We review Malone’s sentence under a “deferential abuse-

of-discretion standard,” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)

(internal quotation marks omitted), which “incorporates de novo review of questions of law,”

United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (internal quotation marks

omitted). We assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

1.     Procedural Reasonableness

       a.     The Conspiracy Sentence

       Malone contends that his 140-month sentence for conspiracy is procedurally

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unreasonable because it is based on a “clearly erroneous finding of fact,” United States v.

Cavera, 550 F.3d at 189, specifically the district court’s “finding that Malone was not

rehabilitated,” Appellant Br. 14. The record defeats the argument. It shows that the court

granted Malone the one-level horizontal departure in criminal history category that he sought

based on his efforts at rehabilitation. Sentencing Tr. 19. While the district court did not

explicitly cite rehabilitation as the reason for granting the horizontal departure, it effectively

did so by citing defense counsel’s June 28, 2011 letter, which urged departure on this ground.

In short, this case is not akin to Pepper v. United States, 131 S. Ct. 1229, 1239 (2011), in

which a district court erroneously thought it was legally precluded from considering post-

sentence rehabilitation.

       The district court’s decision not to accord Malone more consideration for

rehabilitation manifests no clear factual error, much less abuse of discretion. See United

States v. Cavera, 550 F.3d at 189. Malone had a disturbing history of recidivism spanning

two decades. While on probation from a 1989 state conviction for selling drugs, he was

rearrested in 1992 and federally convicted of conspiracy to distribute cocaine. Malone then

became a fugitive and, when apprehended in 1994, he was convicted of further substantive

cocaine trafficking and sentenced to 12 years in prison. He was out of custody for a little

more than a year when he was arrested for the instant conspiracy. Given this history, the

district court did not abuse its discretion in according Malone a one-level reduction in

criminal history for his efforts at rehabilitation, but no more.

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       Nor is there any merit to Malone’s argument that the district court’s negative

assessment of rehabilitation necessarily formed the entire basis for his sentence, as he

contends. The district court plainly stated that it had “considered . . . very carefully” all

factors specified in 18 U.S.C. § 3553(a) in imposing sentence.           Sentencing Tr. 21.

Accordingly, Malone’s procedural challenge to his sentence fails.

              b.     The Supervised Release Sentence

       Malone challenges his supervised release sentence on the ground that the district court

failed to state its reasons for the 36-month consecutive sentence, as required by 18 U.S.C.

§ 3553(c). Because Malone did not raise this argument in the district court, we review only

for plain error, see United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007), and

identify none.

       Where a “sentence concerns a violation of supervised release and the ultimate

sentence is within the recommended range, compliance with the statutory requirements can

be minimal.” United States v. Cassesse, 685 F.3d 186, 192 (2d Cir. 2012); see id. at 187–88

(affirming consecutive sentence within policy statement range where district court stated, “I

have reviewed everything”). Malone’s 36-month sentence was within the 33-to-36-month

range recommended by the applicable Sentencing Commission policy statement, which also

provided for the supervised release sentence to run consecutively to the conspiracy sentence,

see U.S.S.G. § 7B1.3(f). This was all detailed in the Presentence Investigation Report

adopted by the district court. Further, in sentencing Malone the week before for the

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conspiracy crime that also supported the supervision violation, the district court explained

why the violation was so disturbing and why it was not significantly mitigated by the claimed

rehabilitation: “You are out on supervised release for less than a year. Probably the

following day you probably started your criminal activity again. Who knows. But I know

within a year you are back here again, and you are telling me I’ve changed now.” Sentencing

Tr. 18. The district court’s “intertwined analysis of the supervised release violation and the

[substantive] crime” thus “clearly provided a sufficient explanation of the sentence . . .

ultimately imposed for the violation.” United States v. Cassesse, 685 F.3d at 193. Malone

cannot demonstrate plain error.

2.     Substantive Reasonableness

       Absent procedural error, we will identify a sentence as substantively unreasonable

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

of permissible” sentences. United States v. Cavera, 550 F.3d at 189 (internal quotation

marks omitted); see United States v. Rigas, 583 F.3d 108, 122–23 (2d Cir. 2009) (stating that

to be substantively unreasonable, sentence must “damage the administration of justice”

because it is “shockingly high, shockingly low, or otherwise unsupportable as a matter of

law”). This is not such a case.

       Malone contends that his sentence was substantively unreasonable because the district

court accorded undue weight to deterrence, relying on “stale” and “unreliable” evidence

preceding his claimed rehabilitation, and possibly overlooking its authority to grant a vertical

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as well as a horizontal departure from the Guidelines. These arguments appear more

procedural than substantive, and fail largely for the reasons stated in discussing Malone’s

parallel procedural challenges. We note only that nothing in the record supports Malone’s

speculation that the district court failed to understand its authority to grant a vertical

Guidelines departure or to impose a sentence outside the Guidelines. Cf. United States v.

Rivers, 50 F.3d 1126, 1131 (2d Cir. 1995) (stating that “reviewing court is entitled to assume

that the sentencing judge understood all the available sentencing options” absent record

evidence to the contrary). Otherwise, we conclude that the district court’s discretion to

consider the totality of circumstances relevant to sentence, 18 U.S.C. § 3661, see United

States v. Cavera, 550 F.3d at 191, supported its determination that Malone’s persistent

criminal behavior presented a sufficiently high risk of recidivism despite his recent efforts

at rehabilitation to warrant a sentence within a modestly reduced Guidelines range, see Gall

v. United States, 552 U.S. 38, 51 (2007) (“If the sentence is within the Guidelines range, the

appellate court may, but is not required to, apply a presumption of reasonableness.”).

3.     Conclusion

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

are without merit. Accordingly, the judgments of the district court are AFFIRMED.

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




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