*

 The Honorable Mark R. Kravitz, of the United States District Court for the District of Connecticut, sitting by

designation.

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10-2268-cr

United States v. Walsh

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to summary orders 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 United States Courthouse, 500 Pearl Street, in the City of New York, on

the 8th day of April, two thousand and eleven.

PRESENT:

RALPH K. WINTER,

JOSÉ A. CABRANES,

Circuit Judges,

MARK R. KRAVITZ,

Judge.*

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UNITED STATES OF AMERICA, 

Appellee,

 -v.- No. 10-2268-cr

 

BRENDAN WALSH,

Defendant-Appellant.

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FOR DEFENDANT-APPELLANT: Melissa A. Tuohey, Assistant Federal Public Defender 

(Lisa A. Peebles, Federal Public Defender, James P.

Egan, on the brief), Office of the Federal Public

Defender of the Northern District of New York,

Syracuse, NY. 

FOR APPELLEE: Brenda K. Sannes, Assistant United States Attorney

(Richard S. Hartunian, United States Attorney,

Miroslav Lovric, Assistant United States Attorney, on

the brief), United States Attorney’s Office for the

Northern District of New York, Syracuse, NY.

Appeal from a May 18, 2010 judgment of the United States District Court for the Northern

District of New York (Thomas J. McAvoy, Judge). 

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

DECREED that the judgment of the District Court be AFFIRMED. The cause is

REMANDED to the District Court solely to permit the amendment of the judgment.

Brendan Walsh challenges the reasonableness of a 24-month term of incarceration imposed

for nine violations of his conditions of supervised release, which carried an applicable sentencing

range under U.S.S.G § 7B1.4 of 3 to 9 months. Walsh contends that his sentence is unreasonable

because the district court failed to justify the imposition of a sentence higher than that recommended

by the United States Sentencing Guidelines pursuant to 18 U.S.C. § 3553(c) and because the

sentence’s length is not commensurate with a consideration of the sentencing factors enumerated in

18 U.S.C. § 3553(a). We assume the parties’ familiarity with the facts and the procedural history on

appeal.

 We review sentences for violations of supervised release—as we do all sentences—for

reasonableness, which amounts to review for “abuse of discretion.” United States v. Cavera, 550 F.3d

180, 187, 189 (2d Cir. 2008) (in banc). A district court has abused its discretion if it has (1) “based its

ruling on an erroneous view of the law,” (2) made a “clearly erroneous assessment of the evidence,”

or (3) “rendered a decision that cannot be located within the range of permissible decisions.” Sims v.

Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citations and internal quotation marks omitted). Because

Walsh failed to object to his sentence below, our review is for plain error. See Fed. R. Crim. P. 52(b). 

We find plain error where (1) there is error; (2) that is plain; (3) that affects substantial rights; and (4)

that affects the fairness, integrity, or public reputation of judicial proceedings. See, e.g., United States v.

Dorvee, 616 F.3d 174, 180 (2d Cir. 2010).

I. Procedural Reasonableness
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Pursuant to § 3553(c), a district court, at the time of sentencing, must “state in open court

the reasons for its imposition of the particular sentence.” If, however, the sentence imposed is

outside the applicable range prescribed by the Guidelines, the sentencing court must also state “the

specific reason for the imposition of a sentence different” from that prescribed by the Commission

and memorialize that reason “in the written order of judgment and commitment.” 18 § 3553(c)(2);

see United States v. Hall, 499 F.3d 152, 153 n.1 (2d Cir. 2007). It is well settled that in considering a

district court’s compliance with § 3553(c)(2), “a court’s statement of its reasons for going beyond

non-binding policy statements in imposing a sentence after revoking a defendant’s [probationary] term

need not be as specific as has been required when courts departed from guidelines that were . . .

considered to be mandatory.” United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005) (emphasis in

original). As a result, we have held that where the term of incarceration was explicitly justified in

relation to well-recognized sentencing objectives, an “oral explanation . . . [is] more than sufficient to

inform the defendant and public of the reasons for the particular sentence and to permit our review

for reasonableness.” United States v. Verkhoglyad, 516 F.3d 122, 133 (2d Cir. 2008) (quotation marks

omitted); cf. United States v. Buissereth, — F.3d —, 2011 WL 873143 (2d Cir. Mar. 15, 2011) (discussing

failure to sufficiently articulate § 3553(a) in circumstances where defendant has signed a valid appeal

wavier). 

Here, as in Verkhoglyad, the District Court reviewed Walsh’s violations of supervised release

and discussed, at considerable length, the appropriateness of a penalty necessary to “deter [Walsh

from] committing future violations and to . . . get [him] some help in rehabilitation in a controlled

setting.” Moreover, while Walsh attempted to excuse his violations, which included “failure to

report,” “failure to follow instructions,” “failure to participate in mental health counseling” and

“failure to perform community service as directed,” as a consequence of being “incredibly busy”

with plans for a new business venture, the District Court explained that “you don’t get to choose

what you have to do when.” Accordingly, inasmuch as the District Court’s clearly articulated a

concern for the seriousness of Walsh’s violations and the necessity of incarceration, we cannot say

that the District Court failed to adequately justify in open court the reasons for the sentence

imposed. 

II. Substantive Reasonableness

We also reject Walsh’s claim that the District Court’s imposition of a sentence at the

statutory maximum was substantively unreasonable. “The Supreme Court has expressly rejected the

use of mathematical formulas to gauge substantive unreasonableness.” Verkhoglyad, 516 F.3d at 143

(citing Gall v. United States, 552 U.S. 38, 47 (2007). Indeed, in United States v, Fleming, this Court held

that the imposition of a 24-month sentence on revocation of supervised release where the

underlying applicable guidelines contemplated a 5 to 11 month range was not substantively

unreasonable where the District Court concluded, in light of the statutory factors enumerated under
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§ 3553(a), that the primary purpose of the sentence was punishment and deterrence in response to

multiple serious violations of the defendants terms of supervised release. 397 F.3d 93, 100-01 (2d

Cir. 2005). That is exactly the situation we confront here. As such, we have no trouble concluding

that a 24-month sentence was not one of the “exceptional cases where the trial court’s decision

cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189. 

III. Remand under § 3553(c)(2)

Nevertheless, it appears—and both parties acknowledge—that the written judgment of the

District Court fails to state the reasons for its departure from the Guidelines sentence as required by

18 U.S.C. § 3553(c)(2). In the past, our Court has suggested it to be the “better course” to remand

such matters to the district court for a supplementation of the written record. See, e.g., Verkhoglyad,

516 F.3d at 134; United States v. Goffi, 446 F.3d 319, 322 n. 2 (2d Cir. 2006); Jones, 460 F.3d. at 97. We

emphasize that we identify no substantive or procedural error warranting resentencing. Remand is

appropriate here solely to permit the district court to amend its written judgment to satisfy the

“ministerial duty to memorialize its stated reasons for sentencing as required by § 3553(c)(2).” 

Verkhoglyad, at 134.

CONCLUSION

We have considered all of Walsh’s arguments on appeal and find them to be without merit.

For the reasons stated above, we AFFIRM the judgment of the District Court, but the case is

REMANDED for the limited purpose of allowing the district judge to amend the written judgment

to satisfy the ministerial duty to memorialize the stated reasons for sentence, as required pursuant to

18 U.S.C. § 3553(c)(2).

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Court