United States v. Hightower ( 2014 )

13-2821
United States v. Hightower
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of December, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 DEBRA ANN LIVINGSTON,
8 RAYMOND J. LOHIER, Jr.,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-2821-cr
16
17 SEAN HIGHTOWER,
18 Defendant-Appellant.1
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20
21 FOR APPELLANT: Steven Yurowitz, Newman &
22 Greenberg, New York, New York.
23
1
The Clerk of Court is directed to amend the case
caption as above.
1
1 FOR APPELLEE: Emily Berger, Lara Treinis Gatz,
2 for Loretta E. Lynch, United
3 States Attorney for the Eastern
4 District of New York, Brooklyn,
5 New York.
6
7 Appeal from a judgment of the United States District
8 Court for the Eastern District of New York (Seybert, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 Sean Hightower appeals from the judgment of the United
15 States District Court for the Eastern District of New York
16 (Seybert, J.), sentencing him to 48 months imprisonment for
17 violating conditions of his supervised release. We assume
18 the parties’ familiarity with the underlying facts, the
19 procedural history, and the issues presented for review.
20
21 Hightower pled guilty in June 2006 to one count of
22 conspiring to commit Hobbs Act robbery and one count of
23 using a firearm in furtherance of that offense. The
24 advisory range for Hightower’s sentence pursuant to the U.S.
25 Sentencing Guidelines (“USSG”) was 84 to 90 months
26 imprisonment. The district court departed downward from the
27 Guidelines range, imposing a sentence of 72 months
28 imprisonment (and three years supervised release). By May
29 19, 2012, as he neared the conclusion of his term of
30 supervised release, Hightower was at the scene of a shooting
31 in Brooklyn. He was charged with attempted murder, assault
32 with intent to commit serious injury, criminal possession of
33 a weapon, menacing, and hindering prosecution. Hightower
34 pled guilty in New York state court to one count of
35 hindering prosecution.
36
37 In the district court, Hightower admitted that the
38 crime constituted a violation of his supervised release.
39 The Guidelines range for this violation was three to nine
40 months imprisonment. Both the Probation Department and the
41 government recommended that the district court sentence
42 Hightower to the maximum term of five years imprisonment,
43 arguing that an earlier guilty plea and another violation of
44 supervised release justified the upward departure. The
45 district court imposed a sentence of 48 months imprisonment.
46
2
1 On appeal, Hightower challenges his sentence as
2 procedurally and substantively unreasonable. He also
3 contends that the district court could not sentence him to
4 imprisonment at all because the district court had not
5 advised him at his 2006 plea proceeding of the possibility
6 of imprisonment for violating his supervised release.
7
8 We review sentences for reasonableness, United States
9 v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),
10 which “amounts to review for abuse of discretion,” United
11 States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en
12 banc). This concept applies both to “the sentence itself
13 and to the procedures employed in arriving at the sentence.”
14 United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.
15 2008) (internal quotation marks omitted).
16
17 Hightower argues that his sentence was procedurally
18 unreasonable because the court did not explicitly discuss
19 factors that it was required to consider under 18 U.S.C.
20 §§ 3553(a) and 3583(e)(3). “[T]he law in this circuit is
21 well established that, in the absence of record evidence
22 suggesting otherwise, we presume that a sentencing judge has
23 faithfully discharged [the] duty to consider the statutory
24 factors.” Verkhoglyad, 516 F.3d at 129 (internal quotation
25 marks omitted). No record evidence suggests that the
26 district court either omitted to consider any required
27 factors or considered any improper factors. To the
28 contrary, the district court connected the sentence to
29 several of the § 3553(a) factors, such as by discussing
30 Hightower’s history and characteristics and by explaining
31 the need to protect the public from Hightower.
32
33 Hightower argues that the 48-month prison sentence was
34 substantively unreasonable. The requirement of substantive
35 reasonableness “provide[s] a backstop for those few cases
36 that, although procedurally correct, would nonetheless
37 damage the administration of justice because the sentence
38 imposed was shockingly high, shockingly low, or otherwise
39 unsupportable as a matter of law.” United States v. Rigas,
40 583 F.3d 108, 123 (2d Cir. 2009). An above-Guidelines
41 sentence for a violation of supervised release is less
42 likely to be unreasonable if the district court had imposed
43 a below-Guidelines sentence on the underlying conviction.
44 Verkhoglyad, 516 F.3d at 129-30; USSG § 7B1.4, Application
45 Note 4 (“[w]here the original sentence was the result of a
46 downward departure . . . an upward departure may be
47 warranted” upon a future violation of supervised release).
3
1 A below-Guidelines sentence was imposed for Hightower’s
2 original Hobbs Act conspiracy and accompanying firearms
3 charge. His criminal conduct while on supervised release
4 and his violations represent a breach of trust. The
5 district court’s 48-month sentence was neither “shockingly
6 high, shockingly low, [n]or otherwise unsupportable as a
7 matter of law.” Rigas, 583 F.3d at 123.
8
9 Finally, Hightower argues that a sentence of
10 incarceration was impermissible because the district court
11 failed to advise him prior to his guilty plea that a
12 violation of supervised release could result in
13 imprisonment. At the time of Hightower’s plea hearing, the
14 district court was required to “inform the defendant of, and
15 determine that the defendant understands, . . . any maximum
16 possible penalty, including imprisonment, fine, and term of
17 supervised release.” Fed. R. Crim. P. 11(b)(1)(H).
18 However, any “variance from the requirements of [Rule 11] is
19 harmless error if it does not affect substantial rights.”
20 Fed. R. Crim. P. 11(h). Hightower’s plea agreement stated
21 that a violation of supervised release could result in jail
22 time. Before pleading guilty, he confirmed that he
23 understood the plea agreement, and the district court
24 advised him that the maximum possible sentence was life
25 imprisonment and that he may be subject to supervised
26 release. Even assuming, without deciding, that the district
27 court should have explained the implications of violating
28 supervised release, on these facts the error was harmless.
29 Cf. United States v. Andrades, 169 F.3d 131, 134 (2d Cir.
30 1999).
31
32 For the foregoing reasons, and finding no merit in
33 Hightower’s other arguments, we hereby AFFIRM the judgment
34 of the district court.
35
36 FOR THE COURT:
37 CATHERINE O’HAGAN WOLFE, CLERK
38
4