      16-2997
      United States v. Watkins


                                 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
      City of New York, on the 15th day of September, two thousand seventeen.

      PRESENT:
                         ROBERT A. KATZMANN,
                              Chief Judge,
                         ROBERT D. SACK,
                         CHRISTOPHER F. DRONEY,
                              Circuit Judges.


      UNITED STATES OF AMERICA,

                                  Appellee,

                         v.                                                 No. 16-2997


      ANTHONY WATKINS,

                                  Defendant-Appellant.


      For Appellee United States:                            Paul D. Silver, for Grant C. Jaquith, Acting
                                                             United States Attorney for the Northern
                                                             District of New York, Albany, NY.

      For Defendant-Appellant:                               Molly K. Corbett & James P. Egan,
                                                             Assistant Federal Public Defenders, for Lisa


                                                         1
                                                              A. Peebles, Federal Public Defender,
                                                              Albany, NY.

        Consolidated appeals from final judgment of the United States District Court for the

Northern District of New York (D’Agostino, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-appellant Anthony Watkins appeals from a sentence and final judgment of

conviction entered on August 15, 2016, by the United States District Court for the Northern

District of New York (D’Agostino, J.). We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.

        Watkins pled guilty to two counts of distribution of a controlled substance (heroin) in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) in relation to selling, in two separate

transactions, five bags (weight of .18 grams) and twenty bags (weight of .56 grams) of heroin to

a confidential informant. In preparation for Watkins’s sentencing hearing, the Probation Office

calculated that because Watkins had two prior felony convictions as an adult for controlled

substance offenses, Watkins qualified as a career offender under U.S.S.G. § 4B1.1, elevating his

total offense level from a base level of 12 to 32.1 Recognizing Watkins’s acceptance of

responsibility, the Probation Office reduced his calculated total offense level to 29. Coupled with

a criminal history score of 11 and criminal history category of VI due to his career offender

status, Probation calculated a Guidelines range sentence of 151 to 188 months’ imprisonment.

        Both in his sentencing memorandum and at sentencing, Watkins objected to the

application of the career offender enhancement. During the sentencing hearing, Watkins


1
 Watkins also had a third felony conviction for a controlled substance offense as a minor. This was not considered
as part of § 4B1.1’s career offender designation, which counts only felony convictions for controlled substances
offenses committed after the age of majority. See U.S.S.G. § 4B1.2, comment. (n.1).

                                                         2
specifically noted that the Sentencing Commission had recently recommended to Congress that

individuals whose relevant convictions are non-violent drug offenses be removed from the

definition of career offender under § 4B1.1. The district court rejected this argument as a reason

to exercise discretion to decline to apply the career offender enhancement, contending that with

several prior controlled substance felony offenses and two prior parole violations, “career

offender does apply to him when I look at his record.” App. 55. However, in consideration of

“the small quantity of heroin sold in the instant offense and in the prior offenses,” and

recognizing that the Guidelines range for the same offense absent the career offender

enhancement would yield a sentence of between 21 and 27 months’ imprisonment, App. 59, the

district court sentenced Watkins principally to a term of incarceration of 60 months to run

concurrently as well as 3 years’ supervised release. The judgment was entered on August 15,

2016, and Watkins timely filed his notice of appeal on August 29, 2016.

       On appeal, Watkins contends that the district court’s sentence was both procedurally and

substantively unreasonable. We review a district court’s sentence for reasonableness, which has

both a procedural and a substantive component, and we review both aspects for abuse of

discretion, see United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). Watkins

primarily contends that the district court’s rejection of Watkins’s policy argument against the

application of the career offender enhancement “did not reflect the considered discretion of the

court given the totality of the information presented by Watkins.” Def. Br. 9. Watkins also

asserts that the district court failed to consider properly all of the 18 U.S.C. § 3553(a) factors

necessary in choosing the sentence, and that the court improperly weighed certain of those

factors in selecting the sentence.




                                                  3
       We do not agree. Watkins does not dispute that he qualifies as a career offender under

§ 4B1.1. At sentencing the district court properly considered the fact that the instant offense was

the defendant’s most recent of several prior felony convictions for controlled substance offenses,

and the fact that Watkins had twice violated the terms of his parole, in concluding that the

defendant was properly considered a career offender. Nor was it improper for the court to

consider as factors the dangerousness of the drug in the instant controlled substance offense

(heroin), the relatively small amounts the defendant was caught distributing, and the advisory

Guidelines range that would have applied had Watkins not been considered a career offender, in

choosing a downward variance from the career offender-enhanced Guidelines range. Neither was

it unreasonable in fashioning the appropriate non-Guidelines sentence to consider the relatively

lenient prior sentences the defendant had received for his prior convictions. While the district

court did not specifically identify and address each of the 3553(a) factors in deciding on the

appropriate sentence at the hearing, “we do not require district courts to engage in the utterance

of robotic incantations when imposing sentences in order to assure us that they have weighed in

an appropriate manner the various section 3553(a) factors.” United States v. Sindima, 488 F.3d

81, 85 (2d Cir. 2007) (internal quotation marks omitted). The transcript of the sentencing hearing

clearly reflects that the district court thoughtfully considered and weighed various factors in the

course of sentencing Watkins, and the chosen sentence was not substantively unreasonable in

light of the significant downward variance from the career offender enhanced Guidelines range.

       We have considered all of Watkins’s contentions on appeal and have found in them no

basis for reversal. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk

                                                  4
