1The Clerk is directed to change the official caption. 10-2210-cr United States of America v. Martini (Cassesse)
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2 August Term 2011 3 Argued: April 3, 2012 Decided: July 11, 2012 4 Docket No. 10-2210-cr 5

- - - - - - - - - - - - - - - - - - - - - - - - 6 UNITED STATES OF AMERICA, 7 Appellee, 8 9 V. 10 11 MICHAEL CASSESSE, 12 Defendant-Appellant. 1 13

- - - - - - - - - - - - - - - - - - - - - - - - 14 Before: NEWMAN, KATZMANN, and PARKER, Circuit Judges

. 15 Appeal from the June 19, 2009, judgment of the United States 16 District Court for the Eastern District of New York (Sandra L. Townes, 17 District Judge), sentencing the Defendant for a racketeering 18 conviction and for violation of supervised release. The Defendant 19 contends that twelve months of imprisonment imposed for the supervised 20 release violation should have been subtracted from the lifetime term 21 of supervised release. 22 Affirmed. 23 Bradley W. Moore, New Haven, Conn. 24 (James I. Glasser, Wiggin and 25 Dana LLP, New Haven, Conn., on 26 the brief), for Defendant27 Appellant. 28 29 30-2- Amy Busa, Asst. U.S. Atty., New York, 1 N.Y. (Loretta E. Lynch, U.S. 2 Atty. for the Eastern District of 3 New York, Peter A. Norling, Asst. 4 U.S. Atty., New York, N.Y., on 5 the brief), for Appellee. 6 7 JON O. NEWMAN, Circuit Judge

. 8 This appeal presents primarily the almost metaphysical issue of 9 how, if at all, a lifetime term of supervised release, imposed for a 10 supervised release violation, should be reduced by the number of 11 months of a prison term imposed for that violation, a subtraction we 12 are willing to assume is required by the literal terms of the 13 provisions governing supervised release. Defendant-Appellant Michael 14 Cassesse appeals from the June 19, 2009, judgment of the District 15 Court for the Eastern District of New York (Sandra L. Townes, District 16 Judge) revoking his lifetime term of supervised release and sentencing 17 him to a term of twelve months in prison followed by a renewed 18 lifetime term of supervised release. We affirm. 19 Background 20 In 1987, Cassesse was convicted of conspiracy to distribute 21 heroin and sentenced to five years’ probation. In 1991, he was 22 convicted of possession with intent to distribute more than 500 grams 23 of heroin and sentenced to 87 months of imprisonment, a consecutive 24 term of 87 months for violating his probation, and a lifetime term of 25 supervised release, the maximum possible term of supervised release 26 under the statute. See21 U.S.C. § 841(b)(1)(B) (1991). One of the 27 conditions of supervised release was that Cassesse refrain from new 28 criminal conduct. 29-3- In 2007, while Cassesse was out of prison but continuing to serve 1 his term of supervised release, he was indicted on several new 2 charges, including racketeering in violation of 18 U.S.C. § 1962. 3 Cassesse was subsequently charged with violating a condition of 4 supervised release by committing a new crime. Following his guilty 5 plea to the racketeering charge, the District Court sentenced Cassesse 6 for both the racketeering conviction and the supervised-release 7 violation. 8 Speaking with respect to the racketeering offense, Judge Townes 9 noted that she had considered all of the submitted documents, all of 10 the statements made by the defense, the United States Sentencing 11 Guidelines (“the Guidelines”), and the factors enumerated by 18 U.S.C. 12 § 3553(a), including the Defendant’s history and characteristics, the 13 nature of the crime committed, and the need for specific and general 14 deterrence. Judge Townes noted that Cassesse’s racketeering offense 15 was a violation of his term of supervised release: 16 He committed the crime to which he pled guilty [ i.e. , 17 racketeering] while serving . . . a term of supervised 18 release. Mr. Cassesse’s difficulties in life do not relieve 19 him of his responsibilities for [the consequences of] 20 continuing to commit crimes. [Yet] he does not seem 21 inclined to stop. . . . I truly don’t think Mr. Cassesse 22 has fully accepted responsibility for his criminal conduct. 23 I believe he’s just been caught. 24 25 The District Court imposed a sentence of 90 months of 26 imprisonment and three years of supervised release for the 27 racketeering crime. 28 Judge Townes next turned to the violation of supervised release. 29 At this point the parties presented to the Court a plea agreement, in 30-4- which Cassesse apparently agreed to plead guilty to the supervised 1 release violation in exchange for the Government’s recommendation that 2 any additional prison term for that violation be served concurrently 3 with the 90-month racketeering sentence. The parties agreed that the 4 relevant advisory range for the supervised release violation was six 5 to twelve months of imprisonment. 6 The District Court accepted Cassesse’s guilty plea but rejected 7 the parties’ recommendation of a concurrent term, imposing instead a 8 sentence of twelve months of imprisonment for the supervised release 9 violation to run consecutively to the 90 month term for the 10 racketeering conviction. Having revoked the previously imposed term 11 of lifetime supervised release for the narcotics violation, the 12 District Court then imposed a new lifetime term of supervised release. 13 Although Judge Townes provided no detailed explanation for the 14 sentence for the supervised release violation, she stated, “I have 15 reviewed everything.” At the conclusion of the hearing, defense 16 counsel objected to the lifetime term of supervised release but did 17 not object either to the Court’s failure to subtract the twelve month 18 term of imprisonment from it or to the brevity of the Court’s 19 explanation of that term. 20 Discussion 21 A. Standard of Review 22 On appeal, sentences may be challenged for substantive and 23 procedural reasonableness. SeeUnited States v. Verkhoglyad, 516 F.3d 24 122, 127 (2d Cir. 2008). Cassesse argues on appeal that the lifetime 252Although we have questioned the appropriateness of plain error review where a sentencing error allegedly increased a sentence, see United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002), we see no reason to weaken the plain error standard where a court has allegedly inadequately fulfilled a long-standing and uncomplicated procedural requirement of sentencing. SeeVillafuerte , 502 F.3d at 208, 211. 5 term of supervised release should somehow have been reduced by twelve 1 months, which is a substantive objection to the length of the 2 sentence. Although Cassesse did not specifically object in the 3 District Court to the lack of a twelve month reduction, we will assume 4 that his general objection to the length of the new lifetime term 5 comprehended this point. Because this claim presents a question of 6 statutory interpretation, we review the District Court’s decision de 7

novo . SeeUnited States v. Aleynikov, 676 F.3d 71, 76 (2d Cir. 2012). 8 Cassesse also complains that the District Court inadequately 9 explained its reasons for the lifetime term, which is a procedural 10 objection, and in the absence of any objection in the District Court, 11 plain error review applies. SeeUnited States v. Villafuerte , 502 F.3d 12 204, 208, 211 (2d Cir. 2007) (holding that “rigorous” plain error 13 analysis applies to unpreserved claims of procedural sentencing error 14 under 18 U.S.C. § 3553(a) and (c)). 2 15 B. Whether and How to Reduce the Lifetime Term of Supervised Release 16 Cassesse contends that the District Court erred when, after 17 revoking his previously imposed term of lifetime supervised release 186 for his narcotics violation, it imposed both twelve months of 1 imprisonment and a new lifetime term of supervised release for the 2 supervised release violation. More specifically, he contends that the 3 District Court was required by statute to deduct the former from the 4 latter, limiting the supervised release term to something at least 5 twelve months less than the “lifetime” maximum authorized for the 6 narcotics violation for which his original term of supervised release 7 was imposed. 8 Sentencing for a violation of supervised release is governed by 9 18 U.S.C. § 3583. The parties agree that the relevant form of section 10 3583 is the one that was in force in 1991, at the time that Cassesse 11 was sentenced to his original lifetime term of supervised release. See 12 United States v. Smith, 354 F.3d 171, 172 (2d Cir. 2003). The version 13 of section 3583 in effect in 1991 provides in relevant part: 14 The court may . . . revoke a term of supervised release, and 15 require the person to serve in prison all or part of the 16 term of supervised release without credit for time 17 previously served on postrelease supervision, if it finds by 18 a preponderance of the evidence that the person violated a 19 condition of supervised release . . . . 20 21 18 U.S.C. § 3583(e)(3) (1991). The 1991 version is silent on the 22 question of whether a renewed term of supervised release may be 23 imposed in addition to a prison term as punishment for a supervised 24 release violation. Interpreting this version of the statute, the 25 Supreme Court in Johnson v. United States , 529 U.S. 694 (2000), 26 concluded that a court may “revoke the release term and require 27 service of a prison term equal to the maximum authorized length of a 28 term of supervised release.” id. at 705. Moreover, the Court added, 297 because a term of supervised release “continues . . . after revocation 1 even when part of it is served in prison, . . . the balance of it [] 2 remain[s] effective as a term of supervised release when the 3 incarceration is over[.]” Id. at 706. As we have noted, section 4 841(b)(1)(B) provided for the original term of supervised release and 5 authorized a maximum term of lifetime supervised release. In 1994, 6 before Johnsonwas decided, but after Cassesse was sentenced, Congress 7 amended the supervised release provisions to provide explicitly that 8 a renewed term of supervised release may be imposed for a supervised 9 release violation. SeeViolent Crime Control and Law Enforcement Act 10 of 1994, Pub. L. No. 103-322, § 110505, 108 Stat. 1796, 2017, codified 11

at18 U.S.C. § 3583(h). The amending language not only authorized a 12 renewed term of supervised release not to exceed the maximum allowable 13 for the underlying violation, but also introduced the concept, 14 relevant to this appeal, of a reduction of the maximum allowable term 15 of supervised release by the length of time spent in prison for the 16 supervised release violation. The amendment added section 3583(h), 17 which provides: 18 When a term of supervised release is revoked and the 19 defendant is required to serve a term of imprisonment, the 20 court may include a requirement that the defendant be placed 21 on a term of supervised release after imprisonment. The 22 length of such a term shall not exceed the term of 23 supervised release authorized by statute for the offense 24 that resulted in the original term of supervised release, 25 less any term of imprisonment that was imposed upon 26 revocation of supervised release

. 27 28 18 U.S.C. § 3583(h) (2012) (emphasis added). 29 308 Both parties agree, in effect, that once the Supreme Court ruled 1 in Johnsonthat a renewed term of supervised release may be imposed 2 for violations that occurred under the 1991 version of section 3 3583(e)(3), the imprisonment reduction concept of the later enacted 4 section 3583(h) should apply to such a renewed term. The Appellant 5 reasons as follows: 6 Under current law, “[t]he length of such a term of 7 supervised release shall not exceed the term of supervised 8 release authorized by statute for the offense that resulted 9 in the original term of supervised release, less any term of 10 imprisonment that was imposed upon revocation of supervised 11 release.” 18 U.S.C. § 3583(h); see alsoUSSG § 7B1.3(g)(2). 12 The law in effect when Mr. Cassesse committed his narcotics 13 offense is to the same effect, even though the underlying 14 statutory basis is different. As the Supreme Court stated, 15 under Section 3583(e): 16 [I]t is not a “term of imprisonment” that is to 17 be served, but all or part of “the term of 18 supervised release.” But if “the term of 19 supervised release” is being served, in whole or 20 part, in prison, then something about the term of 21 supervised release survives the preceding order 22 of revocation. 23 24 Johnson, 529 U.S. at 705. Thus, if some “part” of the term 25 of supervised release is served in prison after a violation, 26 then the “part” of the term that remains after that prison 27 sentence is served is less than the whole, original release 28 term. 29 30

. . . 31 32 Thus, the pre-1994 Section 3583(e) and the current Section 33 3583(h) are in accord on this point. That is, any reimposed 34 supervised-release term must be reduced by the length of the 35 prison term the defendant serves for the violation. 36 37 Brief of Appellant at 14-16 (footnote omitted). 38 39 The Government reaches the same result by contending that 40 although “the pre-1994 version of § 3583(e) did not require 41 subtraction of the incarceratory sentence,” it did require that “the 429 combined term of supervised release and incarceration did not exceed 1 the original term of supervised release.” Brief for Appellee at 26. 2 Thus, for example, if the prior term of supervised release was ten 3 years and the period of incarceration for the violation was one year, 4 the only way the “combined term” could not exceed the original term is 5 if the one year term of imprisonment is subtracted from the prior ten 6 years of supervised release, yielding a maximum allowable renewed term 7 of nine years. 8 The intriguing question is whether and how the prison term 9 reduction concept applies to a renewed lifetime term of supervised 10 release. The Government elides this question by converting the 11 subtraction concept into an addition concept. It observes that 12 although Cassesse’s one year term in prison plus the renewed lifetime 13 term of supervised release “may equal the original lifetime term of 14 supervised release, they do not exceed it.” Id

. 15 Cassesse advances the subtraction concept and insists that his 16 one year of imprisonment must somehow be subtracted from his lifetime 17 term of supervised release. He suggests three techniques. First, he 18 contends that the lifetime term should be abandoned in favor of a 19 fixed term of years from which the one year term of imprisonment would 20 be subtracted. SeeBrief for Appellant at 21. Second, he suggests 21 that the lifetime term of supervised release should be converted to 22 the corresponding offense level 43 in the Sentencing Table of the 23 Sentencing Guidelines from which some appropriate reduction should be 24 made, after which the reduced offense level would presumably be 25 converted back into a term of years. Cf. United States v. Nelson, 491 263A variant of Cassesse’s third suggestion was offered by the Seventh Circuit, in the context of a reduction for substantial assistance from a mandatory life sentence. That Court suggested making the substantial assistance reduction from 470 months, the average life expectancy of federal defendants at the time of sentencing, as determined by the United States Census Bureau. See Nelson, 491 F.3d at 349-50. 10 F.3d 344, 349 (7th Cir. 2007) (affirming conversion of mandatory life 1 sentence to offense level 43 and then reducing that level by 40 2 percent to reflect substantial assistance). Third, he suggests that 3 one year could be subtracted from his life expectancy at the time of 4 sentencing. 3 5 Intriguing as are the question and some possible answers to it, 6 we conclude that the more appropriate course is simply to recognize 7 that this is one of those rare situations where Congress did not 8 expect the literal terms of its handiwork to be applied to a lifetime 9 term of supervised release, even if we assume that the subtraction 10 concept of section 3583(h) should be applied to a fixed term of 11 supervised release imposed under the pre-1994 version of section 12 3583(e)(3). Cf. Holy Trinity Church v. United States , 143 U.S. 457, 13 472 (1892) (statute prohibiting prepayment of transportation of alien 14 into United States to perform service of any kind held inapplicable to 15 church’s contract to bring resident of England to render service as 16 rector and pastor, even though contract was “within the letter” of 17 statute). 184We note that in a recent summary order, United States v. McNaught , 396 F. App’x 772 (2d Cir. 2010), our Court appeared to endorse Cassesse’s argument. Seeid.at 774 (stating that section 3583(h) “required the district court to subtract Appellant’s term of 30 months’ imprisonment from the maximum lifetime term of supervised release”). That statement, made without considering whether or how
11 First, it is highly unlikely that Congress expected the 1 subtraction concept to be applied to a lifetime of supervised release. 2 Second, even if a sentencing judge were to feel obliged to make a 3 subtraction in some fashion, the judge could easily circumvent such a 4 requirement by selecting a supervised release term of many years, 99 5 for example, and then imposing a term of “only” 98 years. Third, use 6 of the defendant’s life expectancy would introduce a variable bearing 7 little, if any, relation to penological purposes for defendants who 8 outlive their life expectancy and would introduce reverse age 9 discrimination. We conclude that the unadjusted lifetime term of 10 supervised release was not unlawful. SeeUnited States v. Rausch, 638 11 F.3d 1296, 1303 (10th Cir. 2011) (“Because it is impossible to predict 12 the precise length of any individual’s life, a [supervised release] 13 sentence of ‘life less two years [imprisonment]’ has only 14 conceptual–not practical–meaning.”). But seeUnited States v. Shorty, 15 159 F.3d 312, 316 (7th Cir. 1998) (“[T]he maximum amount of supervised 16 release possible would have been life minus the amount of imprisonment 17 imposed during the sentencing for revocation”; no method of 18 subtraction suggested). 4 19such a subtraction should be made, was dictum; the holding was that a five-year term of supervised release was lawful. Moreover, the summary order in McNaughtwas non-precedential. See2d Cir. I.O.P. 32.1.1.

5Section 3583(e) cross-references several subsections of section 3553(a). These are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed--

. . . (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective
12 C. Explanation of Sentence 1 Cassesse contends that the District Court committed procedural 2 error during the sentencing for his supervised release violation by 3 failing to consider the statutory factors required by 18 U.S.C. 4 § 3583(e) and by failing to explain the reasons for the sentence as 5 required by 18 U.S.C. § 3553(c). The statutory requirements are set 6 out in the margin. 5 7manner;

. . . (4) the kinds of sentence and the sentencing range established for--

. . . (B) in the case of a violation of . . . supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28 . . . ; (5) any pertinent policy statement . . . issued by the Sentencing Commission . . . that . . . is in effect on the date the defendant is sentenced[;] (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a).

Section 3553(c) provides:

The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular

sentence. 13 114 The District Court’s failure to explicitly consider the section 1 3553(a) factors does not rise to the level of plain error. “As long 2 as the judge is aware of both the statutory requirements and the 3 sentencing range or ranges that are arguably applicable, and nothing 4 in the record indicates misunderstanding about such materials or 5 misperception about their relevance, we will accept that the requisite 6 consideration [required by 18 U.S.C. § 3583(e)] has occurred.” United 7 States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005). Here, there is 8 every reason to believe that Judge Townes knew she had to consider, 9 and did consider, the relevant statutory factors. She thoroughly 10 considered nearly identical factors during her discussion of the 11 racketeering conviction that resulted from the same criminal acts. 12 During that discussion, moreover, she commented on Cassesse’s 13 supervised release violation and how that violation affected her 14 overall assessment of the Defendant as an unremorseful repeat 15 offender. Then, after turning specifically to the supervised release 16 violation itself, in lieu of a detailed explanation she stated 17 generally, “I have reviewed everything.” Finally, the record shows 18 that Judge Townes was aware of the appropriate policy statements and 19 the relevant advisory terms of imprisonment. 20 The explanation requirement of section 3553(c) is also 21 sufficiently satisfied to preclude a finding of plain error. Section 22 3553(c) requires no specific formulas or incantations; rather, the 23 length and detail required of a district court’s explanation varies 24 according to the circumstances. SeeVillafuerte , 502 F.3d at 210. 25 Where, as here, the sentence concerns a violation of supervised 2615 release and the ultimate sentence is within the recommended range , 1 compliance with the statutory requirements can be minimal. See 2 Verkhoglyad, 516 F.3d at 132-33 (“[A] court’s statement of its reasons 3 for going beyond non-binding policy statementsin imposing a sentence 4 . . . need not be as specific as has been required when courts 5 departed from guidelines. . . .” (emphases original)); Villafuerte , 6 502 F.3d at 210 (“When the district court imposes a Guidelines 7 sentence, it may not need to offer a lengthy explanation . . . .”). 8 Furthermore, section 3553(c) has likely been satisfied when a court’s 9 statements meet the goals “of (1) informing the defendant of the 10 reasons for his sentence, (2) permitting meaningful appellate review, 11 (3) enabling the public to learn why the defendant received a 12 particular sentence, and (4) guiding probation officers and prison 13 officials in developing a program to meet the defendant’s needs.” Id. 14 The District Court adequately fulfilled its duties under the 15 statute, and the error, if any, was not plain. First, Judge Townes 16 briefly described some reasons for her supervised release violation 17 sentence, stating that she would not reduce the sentence for 18 Cassesse’s cooperation because she had already given him credit for 19 that in her racketeering sentence and noting that Cassesse differed 20 from his co-defendants because he was the only one with a violation of 21 supervised release. Second, and more importantly, Judge Townes’s 22 intertwined analysis of the supervised release violation and the 23 racketeering crime clearly provided a sufficient explanation of the 24 sentence she ultimately imposed for the violation. 25 2616 United States v. Lewis , 424 F.3d 239 (2d Cir. 2005), upon which 1 Cassesse principally relies, involved quite different circumstances. 2 First, in Lewisthe District Court imposed a sentence above that 3 recommended by the relevant Sentencing Commission policy statements, 4 triggering a higher descriptive obligation on the part of the District 5 Court. Id. at 245; see18 U.S.C. § 3553(c)(2) (requiring district 6 court to provide “the specific reason for the imposition of a sentence 7 different from that described” in the relevant policy statements or 8 Guidelines). Second, unlike inLewis , Judge Townes provided a lengthy 9 explanation, albeit one that technically occurred during the 10 discussion of a different (but closely related) crime. 11 Conclusion 12 For the foregoing reasons, the judgment of the District Court is 13 affirmed. 14 15 16