United States v. Logan , 520 F. App'x 50 ( 2013 )

12-1672-cr
United States v. Logan
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 APPELLAT E 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 (WIT H 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 18th day of April, two thousand thirteen.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
Circuit Judges,
JANE A. RESTANI,
Judge.*
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UNITED STATES OF AMERICA,
Appellee,
-v.- 12-1672-cr
MARIA LOGAN,
Defendant-Appellant.
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FOR APPELLEE: DAVID T. HUANG (Robert M. Spector,
on the brief), Assistant United
States Attorneys, for David B.
*
The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
Fein, United States Attorney for
the District of Connecticut, New
Haven, Connecticut.
FOR DEFENDANT-APPELLANT: BRIAN E. SPEARS (Janna D.
Eastwood, on the brief), Levett
Rockwood, P.C., Westport,
Connecticut.
Appeal from the United States District Court for the
District of Connecticut (Covello, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Maria Logan was convicted,
following a guilty plea, of conspiracy to commit mail and wire
fraud, in violation of 18 U.S.C. § 1349. At sentencing, Logan
argued that extraordinary family circumstances and her history
as an exemplary foster parent warranted a downward departure, a
variance, or both. The district court, however, implicitly
denied that motion when it principally sentenced her to twenty-
four months' imprisonment, a sentence within the applicable
Guidelines range. We assume the parties' familiarity with the
underlying facts, the procedural history, and the issues on
appeal.
On appeal, Logan contends that her sentence was
neither procedurally nor substantively reasonable. We apply a
reasonableness standard -- "a particularly deferential form of
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abuse-of-discretion review," United States v. Cavera, 550 F.3d
180, 187-88 & n.5 (2d Cir. 2008) (en banc) -- to both the
procedural and substantive sentencing challenges, see United
States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012).
A. Procedural Reasonableness
Logan first received a draft plea agreement in May
2011, which included a three-point reduction for acceptance of
responsibility. When, by late October 2011, Logan had not
accepted that proposed agreement, the government withdrew it and
offered a less favorable alternative, with only a two-point
reduction for acceptance of responsibility. The government
contends that, in the intervening five months, it had been
required to prepare for trial and expend certain resources.
Logan argues that the district court should have granted her
this third-point reduction.
A defendant who "clearly demonstrates acceptance of
responsibility for his offense" is eligible for a two-level
reduction in the offense level calculation. U.S. Sentencing
Guidelines Manual ("U.S.S.G.") § 3E1.1(a). A defendant may
receive a third-point reduction if "the defendant has assisted
authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the government to
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avoid preparing for trial and permitting the government and the
court to allocate their resources efficiently." Id. § 3E1.1(b).
Generally, "a government motion is a necessary prerequisite to
the granting of the third point." United States v. Lee, 653
F.3d 170, 173 (2d Cir. 2011) (internal quotation marks omitted);
see also U.S.S.G. § 3E1.1 cmt. n.6 ("[T]he Government is in the
best position to determine whether the defendant has assisted
authorities in a manner that avoids preparing for
trial . . . .").
Absent a government motion, however, a district
court's authority to grant the third point is limited; it may
only do so if the government's motive for not making the motion
was unconstitutional or if the government acted in bad faith.
See Lee, 653 F.3d at 173; United States v. Sloley, 464 F.3d 355,
360-61 (2d Cir. 2006). Logan's brief on appeal, however, does
not allege a constitutional violation or argue bad faith. To
the contrary, she argues only that "the Government's refusal to
make a motion was unreasonable under the circumstances." See
App. Br. at 32-33 (emphasis added). After affording "great
deference" to the district court, see U.S.S.G. § 3E1.1 n.5 ("The
sentencing judge is in a unique position to evaluate a
defendant's acceptance of responsibility."), we find no error in
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the decision to limit Logan's reduction for acceptance of
responsibility to two points.
Logan further argues that the district court
inadequately explained its reasoning for Logan's sentence. The
district court judge is granted "very wide latitude" to craft an
appropriate sentence. Cavera, 550 F.3d at 188. Nevertheless, a
court "errs procedurally if it does not consider the § 3553(a)
factors, or . . . fails adequately to explain its chosen
sentence." Id. at 190 (internal citation omitted). Generally,
however, "we presume . . . that a sentencing judge has
faithfully discharged her duty to consider the statutory
factors." United States v. Fernandez, 443 F.3d 19, 30 (2d Cir.
2006).
At sentencing, Logan's counsel made arguments for both
a variance under the statutory factors and a departure under the
Guidelines. The government then responded, arguing that no
extenuating circumstances warranted a departure or a variance.
Finally, after hearing from Logan and others speaking on her
behalf, the district court stated on the record that it had
considered the presentence report ("PSR"), the arguments of both
parties (including their sentencing memoranda), the statements
made in court, "together with the factors set forth in Title 18
of United State Code Section 3553." It also expressly adopted
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the findings of the PSR in its statement of reasons attached to
the judgment. See United States v. Watkins, 667 F.3d 254, 261
(2d Cir. 2012) (a district court makes sufficient findings of
fact by explicitly adopting the factual findings in the PSR).
A fuller explanation of its reasoning would have been
helpful. See United States v. Buissereth, 638 F.3d 114, 116-18
(2d Cir. 2011) (although court "should have . . . explained its
sentence in open court," affirming sentence because court had
stated on record that it had "[taken] into account everything
that was said and the records in this case and of course all of
[defendant's counsel's] eloquent arguments" and adopted PSR
findings in the judgment). We do not demand, however, "robotic
incantations . . . to prove the fact of consideration" of these
factors. Fernandez, 443 F.3d at 30 (internal quotation marks
omitted). Thus, a failure to address each argument or each
factor individually is not itself error. See id. at 30-31.
Logan's final assertion is that the district court
erred by denying certain downward departures for family
circumstances and prior good works. See U.S.S.G. §§ 5H1.6,
5H1.11. A district court's decision not to grant a downward
departure is generally not appealable unless the defendant
provides "clear evidence of a substantial risk that the judge
misapprehended the scope of his departure authority." United
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States v. Clark, 128 F.3d 122, 124 (2d Cir. 1997) (internal
quotation marks and citation omitted). Absent such evidence, we
presume that the district court understood its authority to
depart. United States v. Stinson, 465 F.3d 113, 114 (2d Cir.
2006) (per curiam).
Although Logan argues that, because the district court
did not address the departure on the record, there is ambiguity
as to whether the district court knew it could depart in this
case, she provides no evidence to support that allegation beyond
the district court's silence. That is plainly insufficient to
carry her burden. See United States v. Scott, 387 F.3d 139, 143
(2d Cir. 2004) (noting that district court "is not obliged to
give reasons for refusing to depart" and affirming sentence
where counsel had moved for departure at sentencing, government
responded, then court sentenced defendant without explicitly
addressing the motion); United States v. Lawal, 17 F.3d 560,
563-64 (2d Cir. 1994) ("[A] district court's silence concerning
its refusal to depart downward does not support an inference
that the district court misapprehended its scope of
authority."). Moreover, the parties presented detailed
arguments to the district court, orally and in writing, on the
family circumstances and Logan's history as a foster parent, and
the record makes clear that the district court considered these
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arguments. Hence, we conclude that its denial of Logan's
departure motions is not appealable.
For the reasons described above, we conclude that the
district court committed no procedural error.
B. Substantive Reasonableness
Logan also argues that her twenty-four month sentence
was substantively unreasonable. This challenge also fails. Our
review for substantive reasonableness is "particularly
deferential." Bronxmeyer, 699 F.3d at 289. We will only set
aside a district court's substantive determination in
exceptional cases, see Cavera, 550 F.3d at 189, and only then if
the sentence is "shockingly high, shockingly low, or otherwise
unsupportable as a matter of law," Bronxmeyer, 699 F.3d at 289
(quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir.
2009)).
This is not such a case. The Guidelines range, as
calculated by the district court was twenty-four to thirty
months' imprisonment. Logan played a minor role in the mortgage
fraud conspiracy, but she still secured five fraudulent
mortgages, resulting in a loss of nearly $800,000, and was
personally paid $27,000 for her services. She also fraudulently
refinanced her home and submitted fraudulent tax returns,
neither of which formed part of the offense conduct. Moreover,
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as discussed above, the record demonstrates that the district
court weighed Logan's family circumstances, her work as a foster
parent, and other mitigating factors before deciding to impose a
sentence at the bottom of the Guidelines range. Although a
Guidelines sentence is not presumptively reasonable, see Cavera,
550 F.3d at 190, under the circumstances here, the twenty-four
month sentence was not shockingly high or otherwise
unsupportable as a matter of law. Thus, we conclude that
Logan's sentence was substantively reasonable.
* * *
We have considered Logan's remaining arguments and
conclude they are without merit. For the foregoing reasons, we
AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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