18-3766 United States v. FNU LNU

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 PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY 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 Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 19 th day of February, two thousand twenty.

PRESENT: J OHN M. W ALKER , J R ., B ARRINGTON D. P ARKER , S USAN L. C ARNEY , Circuit Judges

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_____________ _______________ _____________
U NITED S TATES OF A MERICA , Appellee
,
v. No. 18-3766

FNU LNU,
Defendant-Appellant,

K

AY O YEWUMI , T UNDE O GUNRINKA , AKA Baba Tolani, T AIWO A DEKANBI , AKA Taiye, A DEMILOLA O GUNMOKUN , AKA Jimmy, AKA Aburo, AKA Olasupo Ogunmokun,
Defendants

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* The Clerk of Court is directed to amend the caption as above.2 ___________________ ____________________ FOR DEFENDANT-APPELLANT: S TEVEN G. B RILL , Sullivan & Brill, LLP, New York, NY.

FOR APPELLEE: C ECILIA E. V OGEL (Karl N. Metzner, on the brief ), Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
Appeal from a judgment of the United States District Court for th e Southern District of New York (Sullivan, J. ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entere d on December 14, 2018, is
AFFIRMED

. FNU LNU (“Appellant”) appeals from a judg ment of the United States District Court for the Southern District of New York (Sullivan, J. ) imposing a 36-month sentence of incarceration—the statutory maximum—to be fo llowed by a life term of supervised release, for his violations of the terms of his supervised release. 1 On September 24, 2010, Appellant was senten ced to 110 months of incarceration, to be followed by four years of supervised release , after a jury found him guilty of conspiracy to distribute and possess with intent to distribute one or more k ilograms of heroin, in violation of 21 U.S.C. § 846; provision of false statemen ts (specifically, a false name, social security number, and date and place of birth) to federa l agents, in violation of 18 U.S.C. § 1001; and aggravated identity theft, in vi olation of 18 U.S.C. § 1028A. We affirmed those convictions, as well as Appellant’s sentence, in United States v. Adekanbi , 675 F.3d 178, 18 1 (2d Cir. 2012). 2 On July 5, 2017, Appellant was released from custody and began his four-year term

1 FNU LNU is used by the Court to signify “First Name Unknown, Last Name Unknown.”

2 Unless otherwise noted, when quoting from published judicial decisions, all internal quotation marks, brackets, and citations have been omitted.3 of supervised release. Approximately one year into that term, on July 25, 2018, the U.S. Probation Office (“Probation”) reported to the Di strict Court that Appellant had violated the terms of supervised release in several re spects. Several months later, on October 24, 2018, Appellant pleaded guilty to two such violations—state law charges of criminal impersonation and identity theft—and a third vi olation, for leaving th e jurisdiction of his supervised release without Probation’s permi ssion. As particularly relevant here, the
misconduct that formed the basis of the st ate law specifications w as that Appellant was “persisting in using the same name, same date of birth, [and] same Social security number that formed the basis for his prior convic tion.” App’x 42-43. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to ex plain our decision to affirm.
We apply “a particularly deferential form of abuse-of-discretion review,” United States
v. Cavera , 550 F.3d 180, 188 & n.5 (2d Cir. 2008), and, as a general rule, we review sentences for violations of supervised release under th e same standard as we review sentences for a crime of conviction, see, e.g. , United States v. McNeil , 415 F.3d 273, 277 (2d Cir. 2005).

1. Procedural Reasonableness.
First, Appellant argues that his sentence was procedurally unreasonable. A district court commits procedural error when it: (1) “f ails to calculate the Guidelines range”; (2) makes a mistake in its Guidelines calculation, or treats the guidelines as mandatory”; (3) “does not consider the [18 U.S.C.] § 3553(a) factors”; (4) “rests its sentence on a clearly erroneous finding of fact”; (5) “fails adequa tely to explain its chosen sentence”; or (6) deviates from the Guidelines range without explanation. Cavera , 550 F.3d at 190. We further require a sentencing court to “state in ope n court the reasons for its imposition of a particular sentence,” providing at least “enou gh detail to allow a reviewing court, the defendant, his or her counsel, and members of the public to understand . . . why the considerations used as justifications for the sent ence are sufficiently compelling or present to the degree necessary to support the sentence imposed.” United States v. Aldeen , 792 F.3d 247, 251-52 (2d Cir. 2015). Even so, we require “less rigorous speci ficity where, as here, a court
sentences a defendant for violat ion of supervised release.” Id. at 253.4 We identify no procedural error on the part of the District Court. To the extent that Appellant contends that the court ignored the positive contributions he made while on supervised release, the record reflects otherwise. In fact, the sentencing court explicitly took note of those contributions, and accorded them little weight as mitigating factors based on
its conclusion that the contributions were made possible only by Appellant’s ongoing
criminal conduct. See App’x 128 (“I can’t say [Appellant] was lawfully employed since he used a false identity to get that employment . . . . [H]e was going to school, which is a productive thing, and he appears to have take n that seriously. Again, he was using a false name to be able to do that.”). The Distri ct Court did not abuse its discretion in so concluding. Cf. United States v. Verkhoglyad , 516 F.3d 122, 131 (2d Ci r. 2008) (explaining that “weight to be afforded any § 3553(a) factor is a matter firmly committed to the discretion of the sentencing judge” (internal quotation marks omitted)).
Contrary to Appellant’s cont ention that the District Court mistakenly emphasized punishment as opposed to deterrence, the cour t’s comments reflected an almost singular focus on protecting the public generally, by deterring others from committing similar offenses, see App’x 130 (observing that, if court gav e Appellant a light sentence, “it would only be logical to expect that other people will do the same”); and specifically, by deterring Appellant from committing the same offense, see id. at 125 (explaining that sentence was intended to encourage Appellant “to be honest about his identity”); and instead ensuring he re-entered lawfully into society, id

. at 145 (explaining that supervised release would allow court to ensure Appellant did not “persist in us ing . . . any false name or false identity”). Nor
can it be said that the District Court abused it s discretion in concluding that Appellant was more likely than the average defe ndant to reoffend given that, af ter being sentenced to nearly ten years of imprisonment for misconduct that included identity theft, he continued to use that same stolen identity in pr ison and after his release, refuse d to cease doing so until just before sentencing, when he assumed yet another false identity and lied to the government and the District Court about doing so.
Ultimately, the District Court discusse d in detail and at numerous hearings Appellant’s background and characteristics, the na ture of his violations of supervised release,5 and the court’s concern about preventing futu re misconduct by Appellant and by others.
These discussions were more th an sufficient to justify the Di strict Court’s conclusion that Appellant’s case was “unique” and that his cond uct was different from “virtually everybody
who is confronted with an arrest in the criminal justice system,” id. at 140, thus warranting the sentence imposed, see Aldeen , 792 F.3d at 253.

2. Substantive Reasonableness. Appellant also asserts that his sentence is substantively unreasonable. We vacate a sentence for substantive unreasonableness “only in exceptional cases where the trial court’s
decision cannot be located within th e range of permissible decisions.” Cavera , 550 F.3d at
189. We do not use substantive reasonableness review as “an opportunity for tinkering with sentences [we] disagree with,” because “we pl ace great trust in sentencing courts.” United
States v. Dorvee , 616 F.3d 174, 183 (2d Cir. 2010).
The thrust of Appellant’s argument is that , in fashioning his sentence, the District Court could take into account only Appellant’ s repeated use of a false identity—conduct, Appellant urges us, that, by itself, cannot just ify his sentence. We are not persuaded. In
United States v. Sindima , we explained that, in crafting a sentence for a violat ion of probation, “the court should sanction primarily the defend ant’s breach of trust, while taking into

account, to a limited degree , the seriousness of the underlying violation and the criminal history
of the violator” because those elements are already accounted for by the Guidelines. 488 F.3d 81, 86 (2d Cir. 2007) (emph asis in original). But we also recognized that the Guidelines may not sufficiently account for the severity of every crime, or the extent of every defendant’s criminal history—th e Guidelines are, after all, just that: guidelines. Thus, sentencing courts may impose an above-Gui delines sentence based on factors already reflected in some way in the Guidelines calcul ation if they “articulate specifically the reasons that this particular defendant’s situation is di fferent from the ordinary situation covered by
the Guidelines calculation.” Id. at 87. Here, as the District Court explained and as set forth above, Appellant was given numerous opportunities to stop using a stolen iden tity and to identify himself to the court.6 Instead, he brazenly continued, for years follo wing his release from prison, to use the very same identity he had been convicted of stealing and, to this day—as far as we are aware—he still has not been forthright with the District Court or with this Court about his name, background, nationality, or criminal history. Thus, not only was Appellant’s conduct as described by the District Court “different from the ordinary situation covered by the Guidelines calculation,” id. at 87, it provided a more-than- sufficient basis for the sentence imposed. As the District Court observed, to permit this persistent obfuscation without penalty is to invite others to rely on it as a ta ctic for avoiding their cr iminal past. Viewed in the context of the record on appeal, Appellant’ s sentence does not “stir[] the conscience,” let
alone “shock” it. Aldeen , 792 F.3d at 255 (emphases omitted) . We easily conclude that the District Court acted within the permissible boun ds of its discretion in imposing the statutory maximum term of incarceration, to be foll owed by a life term of supervised release.

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For the reasons set forth above, the District Court’s judgment is AFFIRMED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court