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United States v. Gibson

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 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 1

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2

Square, in the City of New York, on the 14 th day of May, two thousand fourteen. 3

4

PRESENT: AMALYA L. KEARSE, 5

RAYMOND J. LOHIER, JR., 6

SUSAN L. CARNEY, 7

Circuit Judges. 8

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10

UNITED STATES OF AMERICA, 11

12

Appellee

, 13

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v. No. 13

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KENNETH GIBSON, AKA KG, 17

18

Defendant

‐ Appellant. * 19

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* The Clerk of the Court is directed to amend the caption of this case as set forth

above.2 FOR APPELLANT: Jonathan I. Edelstein, Edelstein & Grossman, 1

New York, NY. 2

3

FOR APPELLEE: John M. Katko, Brenda K. Sannes, Assistant 4

United States Attorneys, for Richard S. Hartunian, 5

United States Attorney for the Northern District 6

of New York, Syracuse, NY. 7

8

Appeal from a judgment of the United States District Court for the 9

Northern District of New York (David N. Hurd, Judge ). 10

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 11

AND DECREED that the judgment of the District Court is AFFIRMED. 12

Kenneth Gibson appeals from a judgment entered in the District Court 13

following his guilty plea, convicting him of possession of marijuana in violation 14

of the terms of his supervised release and sentencing him to the statutory 15

maximum of three years’ imprisonment under 18 U.S.C. § 3583(e)(3). Gibson 16

argues that his sentence is substantively unreasonable. We assume the parties’ 17

familiarity with the facts and record of the prior proceedings, to which we refer 18

only as necessary to explain our decision to affirm. 19

We review the reasonableness of a sentence for violation of the terms of 20

supervised release under a deferential abuse

‐ of

‐ discretion standard. See United 21

States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). We will set aside a 22

district court’s sentence as substantively unreasonable “only in exceptional cases 23

where [its] decision cannot be located within the range of permissible decisions.” 24

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quotation 25

marks omitted). In imposing a sentence for the violation of supervised release, a 26

district court must “‘consider’ most of the factors listed in [18 U.S.C. §] 3553(a),” 27

but is not required to include any particular recitation or “specific articulation” 283 in explaining its decision. United States v. Fleming, 397 F.3d 95, 97, 99 (2d Cir. 1

2005). 2

Applying this standard, we conclude that Gibson’s three

‐ year sentence 3

was not substantively unreasonable. The District Court stated that it considered 4

the § 3553(a) factors, as well as the parties’ submissions detailing Gibson’s 5

history of substance abuse and repeated violations of the terms of his 6

supervision. In addition, although the U.S. Sentencing Guidelines range for the 7

violation of supervised release to which Gibson pleaded guilty was eight to 8

fourteen months, see U.S.S.G. §§ 7B1.1(a)(3), 7B1.4, Gibson’s original sentence for 9

conspiracy to possess and distribute cocaine and cocaine base resulted from a 10

downward departure—a consideration that supports an upward departure here, 11

see id. § 7B1.4, cmt. n.4. The District Court acted within its discretion in 12

determining that the statutory maximum three

‐ year sentence was necessary 13

given Gibson’s repeated breaches of the court’s trust and the failure of past 14

sanctions to deter further violations of the terms of supervision. The sentence 15

was not “shockingly high, shockingly low, or otherwise unsupportable as a 16

matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 17

We have considered Gibson’s remaining arguments and conclude that 18

they are without merit. For the foregoing reasons, the judgment of the District 19

Court is AFFIRMED. 20

FOR THE COURT: 21

Catherine O = Hagan Wolfe, Clerk of Court 22

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