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16-4209-cr 

United States v. Bailey 

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 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 9th day of November, two thousand seventeen. 

PRESENT: AMALYA L. KEARSE, 

JOSÉ A. CABRANES, 

RICHARD C. WESLEY, 

Circuit Judges. 

 

UNITED STATES OF AMERICA, 

Appellee, 16-4209-cr 

v. 

LOUIS BAILEY, AKA LEWIS BAILEY, AKA POLO 

BROWN, AKA WILLIAM BAILEY, AKA FOLIO 

BAILEY, 

Defendant-Appellant.

 

FOR APPELLEE: Susan Corkery and Moira Kim Penza, 

Assistant United States Attorneys, for 

Bridget M. Rohde, Acting United States 

Attorney, Eastern District of New York,

Brooklyn, NY. 

FOR DEFENDANT-APPELLANT: Darrell Fields, Federal Defenders of New 

York, Inc., New York, NY. 
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Appeal from a judgment of the United States District Court for the Eastern District of New 

York (Edward R. Korman, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the December 12, 2016 judgment of the District Court be 

and hereby is AFFIRMED. 

Defendant-Appellant Louis Bailey (“Bailey”) appeals from a December 12, 2016 judgment 

following his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. 

§ 922(g). The District Court sentenced him to 84 months’ imprisonment, three years’ supervised 

release, and a $100 special assessment. On appeal, Bailey argues that the sentence of 84 months’ 

imprisonment was both procedurally and substantively unreasonable. We conclude it was neither 

and affirm. 

BACKGROUND1

Bailey’s appeal stems from the District Court’s significant upward departure from the 

Guidelines’ recommended range. In their plea agreement, the parties calculated an adjusted offense 

level of 19 and a Criminal History Category of III, resulting in a recommended range of 

imprisonment of 37 to 46 months under the Guidelines. At the plea hearing, Bailey stated that he 

understood the Court had “the authority to impose a sentence that is more severe . . . than the 

sentence called for by the [G]uidelines.” Ultimately, that is what the District Court did. While the 

Court adopted the same Guidelines range, it imposed a non-Guidelines sentence of 84 months—

almost twice the maximum advised. In so doing, the Court cited Bailey’s long history of violence and 

the dangerous nature of the instant offense. 

The District Court particularly focused on Bailey’s violent record while incarcerated. It noted 

that “while in custody, the defendant was re-arrested and convicted of assault. Specifically, records 

revealed that, while in custody, the defendant was involved in a physical assault as part of a gang ‘hit’ 

on another inmate.” The District Court thus found that the Guidelines’ recommended range 

significantly under-represented the seriousness of Bailey’s criminal history, and so departed upward 

in the sentence. 

DISCUSSION 

We review a sentence for procedural and substantive reasonableness under a “deferential 

abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) 

 

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 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal. We refer to the background of the case only as necessary to explain our 

decision to affirm. 
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(internal quotation marks omitted). “The procedural inquiry focuses primarily on the sentencing 

court’s compliance with its statutory obligation to consider the factors detailed in 18 U.S.C. 

§ 3553(a), while the substantive inquiry assesses the length of the sentence imposed in light of the 

§ 3553(a) factors.” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (internal alterations, 

citations, and quotation marks omitted). Where the purported procedural error involves a finding of 

fact, we will only reverse if the finding was “clearly erroneous.” Cavera, 550 F.3d at 190. 

Because sentencing is not a “precise science,” we have observed that “in the great majority 

of cases, a range of sentences—frequently extending well beyond the narrow ranges prescribed by 

the Guidelines—must be considered reasonable.” United States v. Jones, 531 F.3d 163, 174 (2d Cir. 

2008). 

I. 

Bailey’s arguments that this case is exceptional are without merit. First, Bailey argues that the 

District Court “mistakenly concluded that Bailey was ‘convicted’” of participating in the gang-related 

incident and “used this purported ‘conviction’ . . . as one of the bases for the upward departure.” 

Appellant Br. at 22. Not so. Read literally, the Statement of Reasons made two factual findings about 

Bailey’s behavior while in custody: (1) that he “was re-arrested and convicted of assault”; and (2) that 

he “was involved in a physical assault as part of a gang ‘hit’ on another inmate.” Both statements are 

supported by the Amended Presentence Investigation Report (“Amended PSR”), which notes that 

Bailey was convicted of an assault on a prison guard and also arrested for a separate, gang-related 

assault on an inmate. We therefore conclude that the District Court did not “rest[] its sentence on a 

clearly erroneous finding of fact.” Cavera, 550 F.3d at 190. 

Second, Bailey contends that the District Court improperly relied on his arrest for the gangrelated incident because “[a]n arrest itself, without more, is an unreliable indicator of guilt.” 

Appellant Br. at 25. While the Guidelines state that “[a] prior arrest record itself shall not be 

considered” for purposes of an upward departure, U.S.S.G. § 4A1.3(a)(3) (emphasis added), this 

language “does not, of course, mean that the conduct underlying such arrests may not be 

considered,” United States v. Miller, 263 F.3d 1, 4 n.3 (2d Cir. 2001) (discussing identical language in 

the applicable version of the Guidelines). Here, the Amended PSR gave a detailed description of the 

New York State Police Investigation Report on the gang-hit assault for which Bailey was arrested; it 

showed that that charge was disposed of by Bailey’s agreement to plead guilty on a later assault 

charge; and Bailey made no objections to the description of the conduct underlying his gang-hitassault arrest. Accordingly, the District Court did not commit a procedural error when it upwardly 

departed from the Guidelines, in part on account of the gang-related incident. 
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II. 

Third, Bailey contends that the District Court provided an inadequate explanation for its 

upward departure from the Guidelines. We disagree. In the oral pronouncement and the written 

Statement of Reasons, the District Court examined Bailey’s decades-long and near continuous 

record of violent behavior, much of which involved the use of weapons such as firearms. Based on 

that record, it concluded that the Guidelines’ formula significantly under-represented the seriousness 

of his criminal history and his risk to the public. We conclude that this explanation provides 

“enough 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 sentence are 

sufficiently compelling or present to the degree necessary to support the sentence imposed.” United 

States v. Sindima, 488 F.3d 81, 86 (2d Cir. 2007) (internal alteration and quotation marks omitted). 

III. 

Finally, Bailey challenges the substantive reasonableness of the sentence. “Our review for 

substantive unreasonableness is particularly deferential,” United States v. Thavaraja, 740 F.3d 253, 259 

(2d Cir. 2014) (internal quotation marks omitted), and upon such review we find no error. For the 

reasons articulated above, “the sentence imposed falls within the broad range that can be considered 

reasonable under the totality of the circumstances.” Jones, 531 F.3d at 174.

In sum, we conclude that the District Court’s sentence was neither procedurally nor 

substantively unreasonable. 

CONCLUSION 

We have reviewed all of the arguments raised by Bailey on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the December 12, 2016 judgment of the 

District Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk