20

- 3382 United States v. Waldstein

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 O RDER”). 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 Circuit, held 1 at the Thurgood Marshall United States Courthouse, 40 Foley Squ are, in the City of New 2 Y ork, on the 2 8 th day of September , two thousand twenty

- one

. 3 4 PRESENT : 5 

### RICHARD J. SULLIVAN, 6 

### JOSEPH F. BIANCO, 7 

### Circuit Judges , 8 

### PAMELA K. CHEN , ∗ 9 

### District Judge

. 10

_____________________________________ 11 12 U NITED S TATES OF A MERICA 13 14 A p pellee , 15 16

v. No. 20

- 3382 17 18 N OAH W ALDSTEIN , 19 20 Defendant

- Appellant

. 21

∗ Pamela K. Chen , District Judge for the Eastern District of New York, sitting by designation.

### 2 _____________________________________ 1 For Appell ee: T. Josiah Pertz , Olga I. Zverovich, Assistant United States Attorney s , for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY.

For Appellant : Yuanchung Lee, Federal Defenders of New York, Inc. , Appeals Bureau , New York, NY

. 2
Appeal from the United States District Court for the Southern District of New York 3
( Seibel , J

. )

. 4
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 5

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

. 6
Noah Waldstein appeals from a judgment of the United States District Court for 7
the Southern District of New York (S eibel, J .) revoking his term of supervised release and 8
sentencing him to a new term of 366 days’ imprisonment, followed by an additional term 9

of supervised release of one year and 364 days

. Waldstein argues that his sentence was 10
substantively unreasonable because the sentencing judge did not properly consider his 11
troubled upbringing, his drug addiction, and the fact that he received conflicting 12
guidance from his probation officer concerning whether the terms of his supervised 13

release required him to enter inpatient substance abuse treatment. We assume the 14
parties’ familiarity with the underlying facts, procedural history, and issues on appeal. 15
“Sentences for violations of supervised release are reviewed under the same 16

### 3 standard as for senten cing generally: whether the sentence imposed is reasonable.” 1

United States v. Brooks , 889 F.3d 95, 100 (2d Cir. 2018) (internal quotation marks and 2
citations omitted). We review challenges to the substantive reasonableness of a sentence 3

under a “deferent ial abuse

- of

- discretion standard.” United States v. Cavera , 550 F.3d 180, 4
189 (2d Cir. 2008) ( en banc ) (quoting Gall v. United States , 552 U.S. 38, 41 (2007)). W e show 5
great deference to how the district court weighed the sentencing factors, considering only 6
“whether [a sentencing ] factor, as explained by the district court, can bear the weight 7
assigned it under the totality of circumstances in the case.” Id. at 191. It is only when a 8

sentence is “shockingly high, shockingly low, or otherwise unsupportable as a matter of 9

law” that we will vacate the district court’s considered judgment at sentencing. United 10
States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009). 11

Here, w e find no substantive error in the sentence imposed by the district court. 12
Although Waldstein argues that the sentencing judge should have focused foremost on 13

the breach of trust associated with his violation s of supervised release , and not on 14

retribution, the record demonstrates that the district court did precisely that. See App’x 15

183 (“I’m sentencing for the breach of trust, not the original offense conduct.”). S ince 16
the original sentence required that Waldstein participat e in mental health treatment an d 17
outpatient substance abuse treatment programs as conditions of his supervised release, 18

Waldstein’s blatant defiance of those conditions constituted a serious breach of that trust. 19

### 4 Indeed, the district judge observed that Waldstein’s “contempt for the la w and his 1
obligations” gave her great concern. I d. at 18 6

. We cannot say that such concern was 2

unfounded. 3

Wal dstein next contends that hi s sentence was substantively unreasonable 4
because the district court overlooked or gave insufficient weight to his difficult 5
childhood, his marijuana addiction, and his reliance on his p robation o fficer’s initial 6

assurance

– later countermanded by the judg e

– that h e did not need to enter into an 7
inpatient care facility. But w hile Waldstein argues that these potential mitigating factors 8

should have resulted in a lesser sentence, the record reflects that the d istrict c ourt 9

considered each of these factors b efore imposing the sentence. The district court 10
nevertheless concluded that Waldstein’s ten failed drug tests, his failure to appear at 11
sixty

- eight substance abuse treatment sessions , his history of violence, and his 12
aggressive behavior that resulted in h is discharge from his inpatient care facility 13
outweighed these other considerations

. Although Waldstein may disagree with the 14

district court ’s balancing of these factors and the weight it accorded to each, we see no 15

reason to second guess the court’s judgment . Ultimately, we cannot say that the 16
sentence imposed by the district court was shockingly high or otherwise unsupportable 17

as a matter o f law

. 18

19

### 5 We have considered the remainder of Waldstein ’s arguments and find them to be 1

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED. 2

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court 5 6