1 16-214-cr United States v. Burke UNITED STATES COURT OF APPEALS 1 FOR THE SECO ND CIRCUIT 2 3 SUMMARY ORDER 4 5 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 6 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 7 BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 8 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 9 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE 10 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A 11 COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 12 13 At a stated term of the United States Cour t of Appeals for the Second Circuit, held 14 at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 15 York, on the 20 th day of January, two thousand seventeen. 16 17 PRESENT: REENA RAGGI, 18 DENNY CHIN, 19 RAYMOND J. LOHIER, JR., 20 Circuit Judges

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---------------------------- ---------------------------- -------------- 22 UNITED STATES OF AMERICA, 23 Appellee , 24 25 v. No. 16-214-cr 26 27 KELLY BURKE, 28 Defendant-Appellant

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-------------------------------------- -------------------------------- 30 31 FOR APPELLANT: Molly K. Corb ett, James Egan, Research & 32 Writing Attorneys, Office of the Federal Public 33 Defender, Albany, New York, for Lisa A. 34 Peebles, Federal Public Defender, Office of the 35 Federal Public Defender, Syracuse, New York. 36 37 FOR APPELLEE: Rajit S. Dosanjh, Richard D. Belliss, Assistant 38 United States Attorneys, for Richard S. 39 Hartunian, United States Attorney for the 40 Northern District of New York, Syracuse, 41 New York. 422 1 Appeal from a judgment of the United St ates District Court for the Northern 2

District of New York (David N. Hurd, Judge ). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, 4 AND DECREED that the judgment entere d on January 14, 2016, is AFFIRMED. 5 Defendant Kelly Burke was convicted in 2010 following his guilty plea to one 6 count of receipt of child pornography, see 18 U.S.C. §§ 2252A( a)(2), 2256(8)(A), and 7 sentenced to 66 months’ imprisonment, a su bstantial variance from his 151-to-188-month 8 Guidelines range. He now a ppeals from the statutory maximum sentence of 24 months’ 9 imprisonment imposed in 2016 following re vocation of supervision. Burke, who 10 admitted violating supervision by usin g alcohol and committing a new state 11 crime—specifically, second degree menacing with a knife—contends that the 24-month 12 sentence is substantively unreasonable. We review the substantive reasonableness of a 13 sentence under a “particularly deferen tial” abuse-of-discretion standard, United States v. 14 Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012); see United States v. Verkhoglyad , 516 F.3d 15 122, 127 (2d Cir. 2008), 1 which we will identify “only in exceptional cases where the 16 [district] court’s decision cannot be located within the range of permissible decisions,” 17

United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) ( en banc ) (internal quotation 18 marks omitted), that is, where “the sentence imposed was shockingly high , shockingly 19

1 Although Burke did not raise his substantive reasonableness challenge to the district court, we have not yet decide d whether plain error review ap plies to such an unpreserved challenge. See United States v. Thavaraja , 740 F.3d 253, 258 n. 4 (2d Cir. 2014). We need not here decide that question because, re gardless of the standard of review, Burke’s challenge fails on the merits.3 low, or otherwise unsupportab le as a matter of law,” United States v. Rigas , 583 F.3d 1 108, 123 (2d Cir. 2009). We assume the partie s’ familiarity with the facts and record of 2 prior proceedings, which we reference only as necessary to explain our decision to 3

affirm. 4 As the district court here explained, th e revocation for which Burke was sentenced 5 to 24 months’ imprisonment fo llowed shortly after his admission to four supervised 6 release violations over the pr evious year, which involved, inter alia , possession of 7 pornography, unauthorized contact with young children, and proscribed alcohol 8 consumption. On October 2, 2015, Burk e was sentenced to tim e served for those 9 violations, but cautioned that further violatio ns would result in a prison sentence “maybe 10 for the maximum time” the court could impose. G.A. 14. Only eleven days later, 11

Burke committed the knife assau lt on his mother’s boyfriend that resulted in his state 12 conviction and the supervision charges here at issue. Un der these circumstances, and 13 upon review of the record, we reject Burke’s contention th at the district court exceeded 14 its discretion in weighing the serious nature of the violation conduct, the significant 15 betrayal of court trust, and the recen cy of the prior violation findings. See U.S.S.G. ch. 16 7, pt. A., introductory cmt. 3(b) (“[A ]t revocation the court should sanction primarily the 17 defendant’s breach of trust, while taking into account, to a limited degree, the seriousness 18 of the underlying violation an d the criminal history of the violator.” (emphasis added)); 19

accord United States v. Edwards , 834 F.3d 180, 195 (2d Cir. 2016). Indeed, all these 20 factors were strongly interrelated and suppor ted the court’s conclusion that Burke had 21 violated the “promise and pl edge” he had given the court on October 2 and demonstrated 224 himself to be a “continu[ing] risk” to his mother, her boyfriend, and the community at 1 large. App’x 101. 2 Burke argues that the district court failed to consider those 18 U.S.C. § 3553(a) 3 factors more favorable to him, such as his “history and characteristics,” id. § 3553(a)(1), 4 and need for “medical care” for alcoholism, id. § 3553(a)(2)(D). Th e record, however, 5 belies the failure-of-consideration argument. To the extent the district court did not 6 assign these factors the mitigat ing weight urged by Burke, we identify no abuse of 7

discretion. See United States v. Perez-Frias , 636 F.3d 39, 42 (2d Ci r. 2011) (stating that 8 appeals court will not “second guess the weight (or lack thereof) th at the [sentencing] 9 judge accorded to a given f actor” if the “ultimate senten ce is reasonable” (internal 10 quotation marks omitted)). 11

Burke also notes that his 24-month senten ce for Grade C violations exceeds the 12 recommended range for more serious Grade A violations. This argument merits little 13 discussion because where, as here, a court re asonably concludes that the breach of trust 14 evident in supervision violations is so serious as to warrant an upward variance, it is not 15 unreasonable to impose the maximum sent ence specified in the statute. Cf. United 16 States v. Verkhoglyad , 516 F.3d at 132 (affirming 57 m onths’ imprisonment, compared to 17 5- to 11-month recommended range, where betr ayal of trust was “flagrant”). Indeed, 18 that conclusion is reinforced here, where th e challenged sentence fo llows a considerable 19 variance from the Guidelines range applicable to Burke’s orig inal sentence and a variance 20 from the Guidelines range ap plicable to his initial four admitted violations. See 21 U.S.S.G. § 7B1.4 cmt. n.4. In sum, the di strict court had every reason to think Burke 225 had seriously and repeatedly violated any trust shown in him. The imposition of a 1

24-month sentence in these circumstance s was not substantively unreasonable. 2 Accordingly, the judgment of the district court is AFFIRMED. 3

FOR THE COURT: 4 CATHERINE O’HAGAN WOLF E, Clerk of Court 5 6 7