United States v. Miller ( 2014 )

13-2476
United States v. Miller
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 22nd day of May, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10
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12 United States of America,
13 Appellee,
14
15 -v.- 13-2476
16
17 Maurice Miller,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: Paul J. Evangelista, Assistant
22 Federal Public Defender, (Molly
23 Corbett, on the brief), Albany,
24 New York.
25
26 FOR APPELLEES: Brenda K. Sannes, (Sean K.
27 O’Dowd, on the brief), for
28 Richard S. Hartunian, United
1
1 States Attorney for the Northern
2 District of New York, Albany,
3 New York.
4
5 Appeal from a judgment of the United States District
6 Court for the Northen District of New York (Sharpe, 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
12 Maurice Miller appeals from the judgment of the United
13 States District Court for the Northern District of New York
14 (Sharpe, J.), sentencing him principally to 11 months’
15 imprisonment upon a finding that Miller violated the terms
16 of his supervised release by committing another crime and
17 consuming alcohol. On appeal, Miller argues that (1) the
18 evidence was insufficient; and (2) the district court erred
19 procedurally by failing to consider the applicable
20 Guidelines range. We assume the parties’ familiarity with
21 the underlying facts, the procedural history, and the issues
22 presented for review.
23
24 1. Miller argues that the evidence was insufficient for
25 the district court to find, “by a preponderance of the
26 evidence,” that he violated the terms of his supervised
27 release. 18 U.S.C. § 3583(e)(3); see United States v.
28 Carthen, 681 F.3d 94, 99-100 (2d Cir. 2012), cert denied,
29 133 S. Ct. 837 (2013). We review the district court’s
30 determination that Miller violated the conditions of
31 supervised release for abuse of discretion, and its factual
32 findings for clear error. See United States v. Carlton, 442
33 F.3d 802, 810 (2d Cir. 2006).
34
35 Under N.Y. Penal Law § 240.26(1), a person is guilty of
36 harassment in the second degree when “with intent to harass,
37 annoy or alarm another person: he or she strikes, shoves,
38 kicks or otherwise subjects such other person to physical
39 contact, or attempts or threatens to do the same.” A
40 defendant “may be presumed to intend the natural and
41 probable consequences of his [or her] actions,” and “intent
42 may be inferred from the totality of the conduct of the
43 accused.” People v. Mollaie, 916 N.Y.S.2d 726 (4th Dept.
44 2011) (internal quotation marks omitted) (alteration in
45 original).
46
2
1 Miller argues that the government failed to prove that
2 Miller had the requisite intent for second degree
3 harassment. However, the evidence showed that Miller
4 slapped a woman with her purse, pushed and shoved her, and
5 threatened to kill her if she spoke to the police. On this
6 record, the district court could safely conclude that Miller
7 intended “to harass, annoy or alarm” the woman. See
8 McGuffog v. Ginsberg, 699 N.Y.S.2d 26 (1st Dept. 1999)
9 (“[I]ntent to harass, annoy or alarm . . . may be inferred
10 from [defendant’s] conduct, including his threats to assault
11 her and his continued threatening and menacing manner even
12 after others intervened”).
13
14 The district court arrived at its conclusion by
15 crediting the testimony of a police officer over that of
16 another witness. Miller challenges that credibility choice.
17 But “[w]here there are two permissible views of the
18 evidence, the factfinder’s choice between them cannot be
19 clearly erroneous.” United States v. Iodice, 525 F.3d 179,
20 185 (2d Cir. 2008) (internal quotation marks omitted).
21
22 2. Miller argues for the first time on appeal that the
23 district court erred by failing to consider the applicable
24 Guidelines range. A defendant’s challenge to a procedural
25 error in sentencing, raised for the first time on appeal, is
26 reviewed for plain error. United States v. Bonilla, 618
27 F.3d 102, 111 (2d Cir. 2010).
28
29 After considering the factors in 18 U.S.C. § 3553(a),
30 the district court may revoke a term of supervised release.
31 18 U.S.C. § 3583(e). “[I]n determining the particular
32 sentence to be imposed,” the court “shall consider . . .
33 [the] policy statements issued by the Sentencing
34 Commission.” 18 U.S.C. § 3553(a)(4)(B).
35
36 Miller contends that the district court’s failure to
37 inform him on the record of the applicable Guidelines range
38 indicates that the court did not consider it. However, even
39 if a district court fails to mention the applicable
40 Guidelines range, “in the absence of record evidence
41 suggesting otherwise, we presume that a sentencing judge has
42 faithfully discharged her duty to consider the statutory
43 factors.” United States v. Verkhoglyad, 516 F.3d 122, 129
44 (2d Cir. 2008) (internal quotation marks omitted). Miller
45 acknowledges that the district court correctly characterized
46 his violations as Grade C violations. Moreover, he does not
47 challenge that the probation office correctly informed the
3
1 district court that the violations were both grade C; that
2 Miller was in a criminal history category of III; and that
3 the correct sentencing range was five to eleven months.
4 There is no indication that the district court, in imposing
5 an 11-month prison sentence, failed to comply with its duty
6 of consideration.
7
8
9 For the foregoing reasons, and finding no merit in
10 Miller’s other arguments, we hereby AFFIRM the judgment of
11 the district court.
12
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
15
4