The Honorable Brian M. Cogan of the United States District Court for the Eastern District *

of New York, sitting by designation.

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09-1959-cr

United States v. Adams

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 LocalRule 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 24 day of May, two thousand ten. th

Present:

JOSÉ A. CABRANES,

RICHARD C. WESLEY,

Circuit Judges,

BRIAN M. COGAN,

District Judge.

*

_______________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 09-1959-cr

RAHSAAN A. ADAMS, also known as Scrams,

Defendant-Appellant.

________________________________________

FOR APPELLEE: Richard T. Lunger, Assistant United States Attorney (Jo

Ann M. Navickas, Assistant United States Attorney, of

counsel) for Benton J. Campbell, United States Attorney

for the Eastern District of New York, Brooklyn, NY.

FOR APPELLANT: David A. Lewis, Federal Defenders of New York, Inc.,

New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New York

(Denis R. Hurley, Judge).
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UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the District Court is AFFIRMED.

Defendant Rahsaan Adams appeals from a April 6, 2009 judgment of the District Court finding

that defendant violated the terms of his supervised release and sentencing him principally to fifteen

months’ imprisonment. For the first time, on appeal defendant argues that the District Court erred by

(1) failing to consider adequately certain factors that it must consider under 18 U.S.C. § 3553(a); (2)

failing to explain adequately the reasons for the District Court’s upward departure from the sentence

suggested by the United States Sentencing Guidelines (“the Guidelines”); and (3) imposing a

substantively unreasonable sentence on defendant. We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

Following United States v. Booker, 543 U.S. 220 (2005), a district court has broad latitude to

“impose either a Guidelines sentence or a non-Guidelines sentence.” United States v. Sanchez, 517 F.3d

651, 660 (2d Cir. 2008); see also United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). 

Accordingly, the role of the Court of Appeals is limited to examining a sentence for reasonableness,

which is akin to review under an “abuse-of-discretion” standard. See Cavera, 550 F.3d at 190; see also

Gall v. United States, 552 U.S. 38, 41 (2007) (“[C]ourts of appeals must review all sentences—whether

inside, just outside, or significantly outside the Guidelines range—under a deferential

abuse-of-discretion standard.”); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (“A district court has

abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence, or rendered a decision that cannot be located within the range of

permissible decisions.” (alteration, citations, and quotation marks omitted)). This standard applies

“both to the [substantive reasonableness of the] sentence itself and to the procedures employed in

arriving at the sentence.” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). Finally, because

defendant failed to raise his procedural objections before the District Court, we review those claims

under a “plain error” standard. See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007).

First, defendant argues that his sentence was procedurally unreasonable because the District

Court failed to consider adequately certain factors that it must consider under 18 U.S.C. § 3553(a). 

There is a “strong presumption that the District Court faithfully performed its statutory obligation to

consider the § 3553(a) factors.” United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006). Adams has

presented no evidence to rebut this presumption. Moreover, upon of a review of the record, we

conclude that the District Court did, in fact, consider the statutory factors. Indeed, the District Court

discussed several of the factors at length at the sentencing proceeding. Accordingly, we conclude that

the District Court did not err, much less commit plain error, by failing to consider the factors set forth

in 18 U.S.C. § 3553(a).

Next, Adams argues that his sentence was procedurally unreasonable because the District Court
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failed to consider the sentencing range calculated under the Guidelines, and it failed to explain why the

District Court decided to depart upward from the Guidelines sentence. Each of these arguments fails.

First, the District Court did consider the sentencing range, both when it referenced the Guidelines

range during sentencing proceedings and when it explicitly adopted the violation of supervised release

report containing the Guidelines Range. See Verkhoglyad, 516 F.3d at 129 (“[T]he fact that [defendant’s]

probation violation report specifically informed the district court of the sentencing range . . . supports

the presumption that the able district judge considered this range as required by § 3553(a)(4)(B).”). The

District Court also explained at length why it imposed a term of incarceration above the suggested

sentencing range. Because Adams has not identified any procedural error below, he necessarily fails to

satisfy his weighty burden under the “plain error” standard. Accordingly, we conclude that defendant’s

sentence was not procedurally unreasonable.

Finally, Adams argues that the sentence imposed was substantively unreasonable. Substantive

reasonableness is “a concept of flexible meaning, generally lacking precise boundaries.” Verkhoglyad,

516 F.3d at 134 (quotation marks and citations omitted). Here, the District Court explained at length

its reasons for imposing the sentence, all of which are reasonable. Moreover, it was not unreasonable

for the District Court to impose a sentence longer than that recommended by the probation officers or

the government, because the recommendations of the probation officers or the prosecution do not

bind the District Court’s discretion in sentencing defendants. See United States v. Avello-Alvarez, 430 F.3d

543, 545-46 (2d Cir. 2005). We therefore conclude that the sentence imposed by the District Court was

not substantively unreasonable.

CONCLUSION

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

Accordingly, for the reasons stated above, the judgment of the District Court is AFFIRMED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk