18-3338

United States v. Zobkiw (Hoey)

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 18th day of March, two thousand twenty.

PRESENT: PIERRE N. LEVAL,

PETER W. HALL,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

United States of America,

Appellee,

v. 18-3338

Thomas Hoey, Jr.,

Defendant-Appellant,
2

Nicole Zobkiw, AKA Sealed Defendant 1, Barry 

Balaban, AKA Sealed Defendant 1, Alejandro 

Noreiga,

Defendants.1

_____________________________________

For Appellant: BRUCE R. BRYAN, Syracuse, New York.

For Appellee: IAN MCGINLEY (Michael D. Maimin on the 

brief) for Geoffrey S. Berman, United States 

Attorney for the Southern District of New 

York, New York, New York.

Appeal from a judgment of the United States District Court for the Southern 

District of New York (Castel, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED.

Thomas Hoey, Jr. appeals from a judgment of the United States District 

Court for the Southern District of New York entered on October 25, 2018, 

sentencing him to a term of 141 months’ imprisonment and three years of 

supervised release. We assume the parties’ familiarity with the underlying facts, 

the record of prior proceedings, and the arguments on appeal, which we reference 

only as necessary to explain our decision to affirm.

1 The Clerk of Court is respectfully requested to amend the caption as stated above.
3

I.

Hoey was convicted, following a guilty plea, of conspiracy to distribute and 

possess with intent to distribute cocaine in violation of 18 U.S.C. § 371, conspiracy 

to suborn perjury in violation of 18 U.S.C. § 1622, and obstruction of justice in 

violation of 18 U.S.C. § 1503. The district court initially sentenced Hoey to a 

within-Guidelines sentence of 151 months’ imprisonment and three years of 

supervised release. The court also imposed a $250,000 fine which was later 

vacated on appeal and not reimposed. Before his initial federal sentencing, Hoey 

had been convicted for an unrelated matter in New York state court. That 

conviction increased the criminal history points used in calculating his federal 

Guidelines range. Following his sentencing on the federal charges here, the New 

York state conviction was vacated, and Hoey was thus entitled to resentencing. At 

resentencing, after recalculating the Guidelines range based on a lower criminal 

history score, the district court imposed an above-Guidelines sentence of 141 

months’ imprisonment and three years of supervised release. Hoey now appeals, 

arguing that his new sentence is both procedurally and substantively

unreasonable.
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II.

We review sentences for reasonableness, which amounts to a review for 

abuse of discretion. See United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en 

banc). “A sentence is procedurally unreasonable if the district court fails to 

calculate (or improperly calculates) the Sentencing Guidelines range, treats the 

Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects 

a sentence based on clearly erroneous facts, or fails to adequately explain the 

chosen sentence.” United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (citation 

omitted).

Hoey contends that his sentence is procedurally unreasonable for two main

reasons: (1) the district court insufficiently explained its decision to impose an 

above-Guidelines sentence at resentencing, especially given that court’s 

imposition of an initial sentence within the advisory Guidelines range, and (2) the 

district court improperly calculated the Guidelines range by refusing to group the 

perjury and obstruction of justice counts together. Hoey, however, did not 

challenge the procedural reasonableness of his sentence before the district court, 

and defense counsel’s general statements that she was “comfortable” with a 

calculation different than the one ultimately adopted and “mindful” of a plea 
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agreement containing another calculation were insufficient to preserve an 

objection for appellate review. App. at 508. We thus review Hoey’s challenges of 

procedural unreasonableness for plain error. See United States v. McCrimon, 788 

F.3d 75, 78 (2d Cir. 2015); United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007).

To demonstrate plain error, Hoey must show that “(1) there is an error; (2)

the error is clear or obvious, rather than subject to reasonable dispute; (3) the error 

affected the appellant’s substantial rights, which in the ordinary case means it 

affected the outcome of the district court proceedings; and (4) the error seriously 

affects the fairness, integrity or public reputation of judicial proceedings.” United 

States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks and alterations 

omitted). While we have said that “the plain error doctrine should not be applied 

stringently in the sentencing context,” United States v. Gamez, 577 F.3d 394, 397 (2d 

Cir. 2009), Hoey’s arguments fail even under a lowered plain error standard.

Hoey’s first argument, that the district court did not sufficiently explain its 

decision to diverge from the advisory Guidelines range, is not supported by the 

record. Not only did the district court deliver a long explanation at the 

resentencing hearing for why it was imposing an above-Guidelines sentence, but 

the court also issued a six-and-a-half-page Written Statement of Reasons 
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explaining that the above-Guidelines sentence “more accurately accounts for the 

extreme callousness of Hoey’s actions,” App. at 556, and outlining specific reasons 

for imposing that sentence. Nor is Hoey’s argument aided by the fact that many 

of the same circumstances that existed at the time of Hoey’s original sentencing—

and which resulted in a sentence within the then-applicable Guidelines—existed 

at the time of his resentencing. Hoey offers no reason why his new sentence must 

fall within the lower Guidelines range simply because his prior one fell within the 

higher range. Contrary to his assertions, we find it eminently reasonable that the 

district court could find a 151-month sentence appropriate under the 

circumstances at Hoey’s initial sentencing and a 141-month sentence appropriate 

under the circumstances at Hoey’s resentencing, notwithstanding the fact that one 

fell inside of the Guidelines range and one did not.

In calculating Hoey’s Guideline range, the district court grouped the perjury 

and underlying drug count together under § 3D1.2(c), as provided for under 

U.S.S.G. § 3C1.1 Application Note 8, and applied Application Note 5 to U.S.S.G. § 

3D1.2 to limit the grouping to one count of obstructive conduct with one count of 

the underlying offense. Application Note 5 explains that, for the purposes of 

grouping under subsection (c):
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Sometimes there may be several counts, each of which could be 

treated as an aggravating factor to another more serious count, but 

the guideline for the more serious count provides an adjustment for 

only one occurrence of that factor. In such cases, only the count 

representing the most serious of those factors is to be grouped with 

the other count.

On that basis, the district court grouped Hoey’s perjury and drug counts together 

and treated the obstruction of justice count separately. The result was a slightly 

higher offense level than if one of Hoey’s preferred approaches had been adopted.

Hoey contends that the district court erred by not grouping his perjury and 

obstruction counts together. He argues that the district court should have grouped 

those counts together pursuant to U.S.S.G. § 3D1.2(b) because the counts were part 

of a common scheme or plan and victimize the same societal interest. He argues, 

alternatively, that they should be grouped together pursuant to U.S.S.G. § 3D1.2(c) 

because each of the perjury and obstruction counts would qualify as an adjustment 

to his drug count. 

How multiple obstruction counts should be grouped is an open question in 

this Circuit. In United States v. Jones, 716 F.3d 851, 859 (4th Cir. 2013), the Fourth 

Circuit followed the approach complained of here, explaining that “the proper 

way to group multiple obstruction of justice convictions under the Sentencing 

Guidelines” is to group only the “more serious” conviction for obstructive conduct 
8

with the underlying offense. While we see the logic in that approach, we need not

decide whether that is the correct method because, given the lack of contrary case 

law from the Supreme Court or this Court, the district court did not plainly err in 

its Guidelines calculation. See United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004) 

(“For an error to be plain, it must, at a minimum, be clear under current law. We 

typically will not find such error where the operative legal question is unsettled, 

including where there is no binding precedent from the Supreme Court or this 

Court.”) (internal quotation marks omitted). Hoey’s challenge to the procedural 

reasonableness of his sentence thus fails.

III.

Hoey also challenges the substantive reasonableness of his 141-month term 

of imprisonment. “Upon review for substantive unreasonableness, we take into 

account the totality of the circumstances, giving due deference to the sentencing 

judge’s exercise of discretion, and bearing in mind the institutional advantages of 

district courts.” United States v. Brown, 843 F.3d 74, 80 (2d Cir. 2016) (citations and 

quotation marks omitted). In giving this due deference, we “provide relief only in 

the proverbial ‘rare case.’” United States v. Bonilla, 618 F.3d 102, 109 (2d Cir. 2010) 

(quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). “A sentencing 
9

judge has very wide latitude to decide the proper degree of punishment for an 

individual offender and a particular crime,” and “[w]e will . . . set aside a district 

court’s substantive determination only in exceptional cases where the trial court’s 

decision cannot be located within the range of permissible decisions.” Cavera, 550 

F.3d at 188, 189 (internal quotation marks and citation omitted). 

Hoey’s chief complaint is that the district court did not give appropriate 

weight to mitigating factors, such as Hoey’s post-incarceration rehabilitation 

efforts. But the district court was not required to weigh these factors in precisely 

the way Hoey would have liked and, in reviewing the sentence imposed by the 

district court, “we do not consider what weight we would ourselves have given a 

particular factor.” Id. at 191. Rather we “consider whether a factor relied on by a 

sentencing court can bear the weight assigned to it” under the totality of the 

circumstances in a case. Id.

Here the record of sentencing proceedings shows that the district court was 

careful to consider the factors cited by Hoey as mitigation in the context of the case 

as a whole. For example, the district court explained that Hoey’s “steps toward 

rehabilitation are commendable but they are not extraordinary.” App. at 552. On 

this record, we cannot say that the district court improperly weighed the factors 
10

presented to it for consideration. Nor do we think a 141-month term of 

imprisonment for distributing drugs to a woman who died after consuming them 

and then attempting to impede an investigation into that conduct is so high that it 

“cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 

189. We therefore hold that the district court did not abuse its discretion in 

imposing the sentence it did.

* * *

We have considered Hoey’s remaining arguments and find them to be 

without merit. We hereby AFFIRM the judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court