22-1517-cr (L)

United States v. Thornton

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 28th day of September, two thousand twenty-three. 

PRESENT: JOHN M. WALKER, JR., 

 DENNY CHIN, 

 ALISON J. NATHAN, 

 Circuit Judges. 

_____________________________________

UNITED STATES OF AMERICA, 

 Appellee, 

v. 22-1517-cr (L), 

22-1518-cr (CON)

 

BRIANA GARLAND,

 Defendant,

REGINALD THORNTON, 

 Defendant-Appellant. 

_____________________________________
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FOR DEFENDANT-APPELLANT: MOLLY K. CORBETT, Assistant Federal 

Public Defender, for Lisa A. Peebles, 

Federal Public Defender for the 

Northern District of New York, 

Albany, NY.

FOR APPELLEE: CARINA H. SCHOENBERGER (Joshua R. 

Rosenthal, on the brief), Assistant 

United States Attorneys, for Carla B. 

Freedman, United States Attorney for 

the Northern District of New York, 

Syracuse, NY.

Appeal from a judgment of the United States District Court for the Northern

District of New York (Suddaby, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

While serving a state prison sentence, Reginald Thornton conspired with 

two others to defraud the State of New York of $31,276 in unemployment and 

pandemic relief funds. Thornton pled guilty to two counts of mail fraud and one 

count of aggravated identity theft and was sentenced to 51 months’ federal 

imprisonment consecutive to any state sentence (Suddaby, J.). On appeal, 

Thornton asserts that the district court’s sentence was procedurally and 
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substantively unreasonable. We assume the parties’ familiarity with the 

underlying facts and the record of prior proceedings, to which we refer only as 

necessary to explain our decision.

I. Background

Thornton is currently serving a nine-year prison sentence in the New York 

State correctional system for drug-related offenses. In 2020, while serving that 

sentence at Bare Hill Correctional Facility, Thornton participated in two mail fraud 

conspiracies that involved falsely claiming eligibility for state and federal

pandemic-related unemployment funds. Pursuant to a plea agreement, he pled 

guilty to two counts of conspiracy to commit mail fraud and one count of 

aggravated identity theft.

At sentencing, the district court adopted the presentence report’s Guidelines 

calculations, to which neither party objected. The Guidelines range for each of 

the two conspiracy counts was 21 to 27 months. The Guidelines sentence for the 

identity theft count was the statutory minimum of 24 months consecutive to any 

other sentence. See 18 U.S.C. § 1028A(a)(1), (b)(2). After considering the plea 

agreement, the parties’ submissions, the Guidelines, and the 18 U.S.C. § 3553(a) 

sentencing factors, the district court sentenced Thornton to 27 months’ 
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imprisonment for each of the two mail fraud counts, to be served concurrently, 

and the mandatory minimum of 24 months’ imprisonment for the aggravated 

identity theft count, to be served consecutively. The total prison term thus came 

to 51 months, which the district court concluded should be served consecutively 

to Thornton’s state sentence. The district court reasoned that the sentence was 

necessary upon its review of the record and consideration of the § 3553(a) factors, 

especially because the instant offenses “represent[ed] the defendant’s eighth and 

ninth and tenth felony conviction[s]” and because of “[t]he audacity, the 

outrageousness, quite frankly, of serving a sentence in a state facility and still 

committing crimes. . . .” App’x 108–09.

Thornton timely appealed, challenging the procedural and substantive 

reasonableness of his sentence.

II. Discussion

“We review the procedural and substantive reasonableness of a sentence 

under a deferential abuse-of-discretion standard,” which “incorporates de 

novo review of questions of law, including our interpretation of the Guidelines, 

and clear error review of questions of fact.” United States v. Yilmaz, 910 F.3d 686, 

688 (2d Cir. 2018).
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However, we review procedural sentencing challenges not raised in the 

district court for plain error. United States v. Verkhoglyad, 516 F.3d 122, 128 (2d 

Cir. 2008). To demonstrate plain error, an appellant must show that “(1) there is 

an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; 

(3) the error affected the appellant’s substantial rights . . . ; and (4) the error 

seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (cleaned up).

a. Procedural Reasonableness

A sentence is procedurally unreasonable if the district court “fails to 

calculate (or improperly calculates) the Sentencing Guidelines range, treats the 

Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects 

a sentence based on clearly erroneous facts, or fails adequately to explain the 

chosen sentence.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (citation

omitted). Thornton argues that his sentence is procedurally unreasonable 

because the district court both failed to consider Thornton’s history and 

characteristics as required by § 3553(a)(1), and also treated the Guidelines as 

mandatory in its decision to run Thornton’s federal and state sentences 

consecutively. Because Thornton did not raise these arguments in the district 
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court, plain error review applies. We conclude that neither of Thornton’s 

arguments demonstrates plain error.

First, we are unpersuaded by Thornton’s claim that the district court failed 

to properly consider the § 3553(a) factors. At sentencing, the district court stated

that it had considered the factors, and it demonstrated a deep knowledge of 

Thornton’s history and characteristics.

Second, the district court’s decision to impose a sentence consecutive to

Thornton’s state sentence did not involve plain error. By statute, “if a term of 

imprisonment is imposed on a defendant who is already subject to an 

undischarged term of imprisonment, the terms may run concurrently or 

consecutively. . . .” 18 U.S.C. § 3584(a). However, the Guidelines recommend 

that an offense committed while imprisoned should be sentenced consecutively to 

the undischarged term of imprisonment. U.S.S.G. § 5G1.3(a). Thornton argues

that because the district court did not mention 18 U.S.C. § 3584(a) during 

sentencing, it must not have recognized that it had discretion to depart from the 

Guidelines’ recommendation of a consecutive sentence and treated that 

recommendation as mandatory. Appellant’s Br. at 26-27. This argument lacks 

merit. In determining whether to impose a consecutive or concurrent sentence, 
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trial judges can and should consider the Sentencing Guidelines, among other 

factors. 18 U.SC. §§ 3584(b); 3553(a)(4). It was proper for the district court to 

consult the Guidelines, and there is no record evidence that the district court 

believed them to be mandatory. Rather, the district court agreed with the 

reasoning of the Guidelines, explaining that the sentence would be consecutive 

because Thornton committed his offense while already imprisoned. App’x 109-

10. We therefore have no reason to depart from our ordinary 

“presum[ption] . . . that [the] sentencing judge has faithfully discharged her duty 

to consider the statutory factors.” United States v. Fernandez, 443 F.3d 19, 30 (2d 

Cir. 2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007).

b. Substantive Reasonableness

Sentences are substantively unreasonable only if they are “so shockingly 

high, shockingly low, or otherwise unsupportable as a matter of law that allowing 

them to stand would damage the administration of justice.” United States v. 

Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (cleaned up). Thornton argues that the 

district court relied too heavily on his criminal history and the fact that he 

committed the offense while incarcerated, and that it should have put more weight 

on his youth and lack of support systems. This argument is unavailing. 
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In reviewing a sentence for substantive reasonableness, “we do not consider 

what weight we would ourselves have given a particular factor,” but rather 

“consider whether the factor, as explained by the district court, can bear the weight 

assigned it under the totality of circumstances in the case.” United States v. Cavera, 

550 F.3d 180, 191 (2d Cir. 2008) (en banc). Notwithstanding Thornton’s 

arguments, we see no reason why the factors the district court considered cannot 

“bear the weight” assigned to them here. It was reasonable for the district court 

to balance the aggravating and mitigating factors as it did. Further, Thornton’s 

sentence falls within the Guidelines range. Although a Guidelines sentence is not 

presumptively reasonable, see id. at 190, it is reasonable in the “overwhelming 

majority of cases,” United States v. Watkins, 667 F.3d 254, 261 (2d Cir. 2012) (citation 

omitted). This case is no exception.

* * *

We have considered Thornton’s remaining arguments and find them to be 

without merit. For the foregoing reasons, we affirm the judgment of the district 

court.

 FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court