United States v. Washington

08-3241-cr
USA v. Washington
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 26th
day of January, two thousand ten.
Present:
GUIDO CALABRESI,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 08-3241-cr
ROBERT WASHINGTON,
Defendant-Appellant.
________________________________________________
For Defendant-Appellant: James M. Branden, New York, NY
For Appellee: Susan Corkery and David Bitkower, Assistant United States
Attorneys for Benton J. Campbell, United States Attorney for the
Eastern District of New York, Brooklyn, NY
Appeal from the United States District Court for the Eastern District of New York
(Vitaliano, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant Robert Washington appeals from a 42-month sentence imposed in the district
court, following his plea of guilty to being a previously-convicted felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). We assume the parties’ familiarity with the facts and
procedural history of the case.
We review defendant’s sentence for reasonableness, “a deferential standard limited to
identifying abuse of discretion.” United States v. Jones, 531 F.3d 163, 170 (2d Cir. 2008). This
“review proceeds in two steps: first, we must ensure that the district court committed no
significant procedural error, and second, if we find the sentence to be procedurally sound, we
must take into account the totality of the circumstances and consider the substantive
reasonableness of the sentence.” Id. (internal quotation marks omitted).
Washington argues that his sentence was unreasonable because the district court should
not have departed upward from the Sentencing Guidelines imprisonment range of 27 to 33
months provided for an offense level of 12 and criminal history category V. He contends that
the upward departure based on his criminal history was unreasonable because (1) his criminal
history is “garden variety” for criminal history category V; (2) many of his criminal history points
stemmed from a purportedly “minor offense”; and (3) the court relied on impermissible factors to
conclude that criminal history category V substantially under-represented the seriousness of
Washington’s criminal history or the likelihood of recidivism.
Washington’s arguments are without merit. In this case, the district court properly
determined that criminal history category V “substantially under-represents the seriousness of the
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defendant’s criminal history or the likelihood that the defendant will commit other crimes,” U.S.
Sentencing Guidelines Manual § 4A1.3(a)(1), given that: (1) Washington’s criminal history score
did not fully reflect the seriousness of many of his prior convictions because either the
convictions were too old or the sentences did not adequately reflect the seriousness of the
underlying conduct, see United States v. Reifler, 446 F.3d 65, 112 (2d Cir. 2006); (2) although
not resulting in convictions, Washington had committed many offenses similar to the instant
offense, see United States v. Morris, 350 F.3d 32, 38 (2d Cir. 2003); (3) Washington had never
been regularly employed, suggesting that he was likely to continue making a living on criminal
activity, see United States v. Franklyn, 157 F.3d 90, 100 (2d Cir. 1998); (4) Washington had not
been deterred from criminal conduct by prior lenient sentences, see United States v. Gayle, 389
F.3d 406, 410 (2d Cir. 2004); and (5) Washington, on many instances, engaged in criminal
conduct while on probation or a suspended sentence, id. at 410-11. In these circumstances, we
find no error in the district court’s conclusion that criminal history category V did not accurately
reflect the seriousness of Washington’s criminal history or risk of recidivism. Moreover,
reviewing the totality of the circumstances, including Washington’s extensive criminal record,
his many offenses similar to the instant offense, his recidivism after being shown leniency in the
past, and his propensity for committing crimes while on probation or a suspended sentence, we
find that the district court’s sentence was reasonable in the totality of the circumstances.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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