18

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United States v. Lloyd

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 30th day of April, two thousand nineteen.

PRESENT: RICHARD C. WESLEY,

DENNY CHIN,

Circuit Judges

, LEWIS A. KAPLAN,

District Judge

. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

UNITED STATES OF AMERICA,

Appellee

,

v. 18

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‐ cr

ANNIS RECARDO LLOYD,

Defendant

‐ Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR APPELLEE: KEVIN TROWEL, Assistant United States

Attorney (Lauren Howard Elbert, Assistant

United States Attorney, on the brief ), for Richard

P. Donoghue, United States Attorney for the

* Judge Lewis A. Kaplan of the Southern District of New York, sitting by designation.‐ 2

‐ Eastern District of New York, Brooklyn, New

York.

FOR DEFENDANT

‐ APPELLANT: LAWRENCE D. GERZOG, Law Offices of

Lawrence D. Gerzog, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Dearie, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

.

Defendant

‐ appellant Annis Recardo Lloyd appeals from a January 29,

2018 judgment of the United States District Court for the Eastern District of New York

(Dearie, J. ), finding him, after a hearing, in violation of the conditions of his supervised

release and sentencing him to a term of 24 months ʹ imprisonment. On appeal, Lloyd

argues that the court abused its discretion in admitting hearsay evidence during the

revocation hearing and that his sentence was procedurally unreasonable. We assume

the parties ʹ familiarity with the underlying facts, procedural history, and issues on

appeal.

On December 30, 2016, Lloyd was arrested after an incident with his

domestic partner, Vanessa Canty, at the Starbright Family Residence ( ʺ Starbright ʺ ). The

charges in state court were subsequently dismissed. On February 2, 2017, based on that

incident as well as other conduct, the United States Probation Department for the

Eastern District of New York ( ʺ Probation ʺ ) filed a Violation of Supervised Release‐ 3

‐ Report (the ʺ Report ʺ ) with the district court charging Lloyd with violating the

conditions of his supervised release. On appeal, Lloyd challenges the admission of

evidence as to specifications one through four and six, which charged him with

violating the condition prohibiting him from committing a federal, state, or local crime.

At the revocation hearing on December 7, 2017, and January 5, 2018, the

Government presented four witnesses: Hillel Greene, Lloyd ʹ s probation officer; Darlene

Browne, the Director of Social Services at Starbright; Department of Homeless Services

( ʺ DHS ʺ ) Police Officer Javier Agosto; and DHS Police Officer Clover Mullings. Canty

was not called to testify because she had declined to cooperate with the state

prosecution. The witnesses testified in substance that Lloyd hit Canty on December 30,

2016, and that he had a history of abusing her. For example, Greene and Browne

testified to Canty ʹ s statements after the December 30, 2016 incident that Lloyd hit her, to

other incidents in which Lloyd may have hit Canty, and to complaints by neighbors

who heard Lloyd assaulting Canty.

In addition, Agosto and Mullings

‐‐ who were at Starbright on December

30th after responding to a report of a dispute in Lloyd ʹ s room ‐‐ testified to their

observations of Canty and Lloyd and to statements made by Canty that night. Mullings

testified that when he found Canty in the recreation room after the incident she was

scared, ʺ crying a little bit, ʺ ʺ upset, ʺ and ʺ angry, ʺ and ʺ [t]here w[ere] visible bruises on

her neck ʺ and ʺ swelling. ʺ App ʹ x at 65

‐ 66. Mullings testified that Canty said that ʺ her‐ 4

‐ husband beat her, ʺ and ʺ punched her, [and] he tried to choke her. ʺ App ʹ x at 65

‐ 66.

Mullings testified that when Lloyd entered the recreation room, Lloyd was ʺ kind of

threatening towards his wife, ʺ App ʹ x at 66, and Agosto testified that as Lloyd entered

Canty started shouting ʺ he hit me, he hit me. ʺ App ʹ x at 59. In addition, Agosto testified

that ʺ [Canty ʹ s] shirt was kind of all over the place, ʺ and he ʺ noticed redness around the

neck[, and] what appeared to be swelling near her eyes. ʺ App ʹ x at 59. Mullings

testified that, at the precinct after Lloyd was arrested, Canty told him that Lloyd ʺ hit her

with his cane in the face ʺ and that he had grabbed and held her by her neck. App ʹ x at

60. Browne testified that Canty had bruises on her face three days later.

At the December 7, 2017 hearing, Lloyd ʹ s counsel objected to all of the

Government ʹ s exhibits based on Federal Rule of Criminal Procedure 32 and Federal

Rule of Evidence 803, but he did not object to any of the testimony. On January 5, 2018,

the district court found that Lloyd violated the terms of his supervised release because

it had ʺ little doubt ʺ that ʺ Lloyd acted inappropriately in assaulting his wife ʺ based on

the witnesses ʹ ʺ credible testimony. ʺ App ʹ x at 69

‐ 70. At the January 26, 2018 sentencing

hearing, the court sentenced Lloyd to 24 months ʹ imprisonment with no supervision to

follow. There were no objections to this sentence. Judgment was entered on January 29,

2018, and Lloyd filed a timely notice of appeal on January 31, 2018.‐ 5

‐ DISCUSSION

Two issues are presented on appeal: (1) whether the district court

admitted hearsay evidence in violation of Lloyd ʹ s due process rights or

Rule 32.1(b)(2)(C); and (2) whether Lloyd ʹ s sentence was procedurally reasonable. We

address each issue in turn.

I. Evidence at the Revocation Hearing

Lloyd argues that the district court erred by admitting testimony from law

enforcement officials, particularly the testimony that pertained to Canty ʹ s out

‐ of

‐ court

statements, as well as the Government ʹ s exhibits. We disagree.

A. Applicable Law

Defendants in revocation proceedings ʺ are not entitled to the full panoply

of rights that criminal defendants generally enjoy, ʺ and the Government need only

prove that a condition of supervised release was violated by a preponderance of

evidence. United States v. Carthen

, 681 F.3d 94, 99 (2d Cir. 2012) (internal quotation

marks omitted). While ʺ the Confrontation Clause of the Sixth Amendment does not

apply to supervised

‐ release hearings, ʺ United States v. Williams

, 443 F.3d 35, 45 (2d Cir.

2006), the Federal Rules of Criminal Procedure provide that a defendant is entitled to

ʺ question any adverse witness unless the court determines that the interest of justice

does not require the witness to appear, ʺ Fed. R. Crim. P. 32.1(b)(2)(C); see Williams

, 443

F.3d at 45. In determining whether good cause exists, the court must balance ʺ the‐ 6

‐ defendant ʹ s interest in confronting the declarant ʺ against ʺ the government ʹ s reasons for

not producing the witness and the reliability of the proffered hearsay. ʺ Williams

, 443

F.3d at 45

. An out

‐ of

‐ court statement that falls within an exception to the hearsay rule,

however, is admissible, Carthen

, 681 F.3d at 100, and no good cause analysis is required,

Williams

, 443 F.3d at 45.

We review a court ʹ s Rule 32.1(b)(2)(C) determination and its evidentiary

rulings for abuse of discretion. Carthen

, 681 F.3d at 100; United States v. Persico

, 645 F.3d

85, 99 (2d Cir. 2011). In addition, we review arguments raised for the first time on

appeal for plain error. See United States v. Parisi

, 821 F.3d 343, 349 (2d Cir. 2016) (per

curiam). To demonstrate plain error, a party must show ʺ (1) error, (2) that is plain, and

(3) that affects substantial rights. ʺ United States v. Irving

, 554 F.3d 64, 78 (2d Cir. 2009)

(internal quotation marks and alterations omitted). If these requirements are met, we

ʺ may then exercise [our] discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings. ʺ Id.

(internal quotation marks and alterations omitted).

B. Application

During the revocation hearing, Lloyd only objected to the admission of the

Government ʹ s exhibits. On appeal, Lloyd appears to challenge all of the statements of

the law enforcement witnesses, specifically their testimony as to Canty ʹ s out

‐ of

‐ court

statements. Because Lloyd challenges these statements for the first time on appeal, we‐ 7

‐ review their admission for plain error, and we review the admission of the

Government ʹ s exhibits for abuse of discretion.

Most of the out

‐ of

‐ court statements offered at the revocation hearing were

not hearsay or fit within an exception to the hearsay rule. For example, the testimony

from Greene, Browne, Agosto, and Mullings about their personal observations of Canty

‐‐ including her emotional state, her crying, the bruises on her neck, the swelling near

her eyes ‐‐ was not hearsay. In addition, Mullings ʹ s and Agosto ʹ s testimony about

Canty ʹ s statements immediately after the incident and at the precinct fit within the

excited utterance exception to the hearsay rule because the statements described a

startling event while Canty was still under the stress of the incident. See Fed. R. Evid.

803(2); United States v. Scarpa

, 913 F.2d 993, 1017 (2d Cir. 1990) (holding that excited

utterance need not be contemporaneous with startling event and finding statement

made five or six hours after event admissible).

To the extent the district court admitted hearsay evidence

‐‐ such as

Canty ʹ s statements to Greene on January 5, 2017, Canty ʹ s statements to Browne three

days after the incident, and the incident reports

‐‐ the court at least implicitly conducted

a Rule 32.1(b)(2)(C) analysis. The Government advised the court that it did not call

Canty because she had been unwilling to cooperate. Additionally, the court found the

other evidence to be credible

‐‐ particularly the officers ʹ personal observations of

Canty ʹ s injuries

‐‐ and concluded Lloyd contributed to Canty ʹ s unwillingness to‐ 8

‐ cooperate because such unwillingness is ʺ sort of part and parcel of th[e] unfortunate

phenomenon of spousal abuse. ʺ App ʹ x at 69

‐ 70. Furthermore, the court acknowledged

Lloyd ʹ s interest in confronting Canty by asking the Government several times whether

she would testify and inquiring ʺ about the appropriateness of relying on hearsay

statements of the non

‐ testifying victim. ʺ App ʹ x at 69. As we have previously

recognized, however, given that Canty ʹ s ʺ unwilling[ness] to cooperate ʺ was attributable

to Lloyd, App ʹ x at 69, his interest in confronting her is ʺ entitled to little weight, ʺ

Carthen

, 681 F.3d at 100. Ultimately, the court found this balance weighed in the

Government ʹ s favor.

We conclude, therefore, that the court did not plainly err in admitting the

challenged testimony or abuse its discretion in admitting the Government ʹ s exhibits.

II. Procedural Reasonableness of Sentence

Lloyd argues that his sentence was procedurally unreasonable because the

district court failed to (1) calculate his guideline range; (2) weigh the 18 U.S.C. § 3553(a)

factors; and (3) state its reasons for imposing his sentence.

A. Applicable Law

A criminal sentence must be procedurally reasonable. United States v. Chu

,

714 F.3d 742, 746 (2d Cir. 2013). ʺ A sentence is procedurally unreasonable if the district

court fails to calculate

. . . the Sentencing Guidelines range,

. . . fails to consider the

§ 3553(a) factors,

. . . or fails adequately to explain the chosen sentence. ʺ United States v.‐ 9

‐ Aldeen

, 792 F.3d 247, 251 (2d Cir. 2015) (internal quotation marks omitted). Because

Lloyd did not object at sentencing to the court ʹ s alleged procedural errors, we review

his challenge for plain error. See Parisi

, 821 F.3d at 349.

B. Application

First, Lloyd argues that his sentence is procedurally unreasonable because

the district court failed to calculate his sentencing range under the U.S. Sentencing

Guidelines Manual ( ʺ Guidelines ʺ ). ʺ We

. . . ordinarily require a sentencing judge to put

her Guidelines calculations on the record. ʺ United States v. Fernandez

, 443 F.3d 19, 29 (2d

Cir. 2006), abrogated on other grounds by Rita v. United States

, 551 U.S. 338 (2007). The

district court did not state the Guidelines calculation on the record; we conclude,

however, that this was not plain error because the failure did not affect Lloyd ʹ s

substantial rights. See Irving

, 554 F.3d at 78 (holding a plain error must affect

substantial rights to warrant reversal). Probation calculated Lloyd ʹ s Guidelines range

and included it in the Report, which also discussed and considered factors relevant to

Lloyd ʹ s sentence. Moreover, the parties made the court aware that the Guidelines range

was above the statutory maximum, and the court imposed a sentence at the statutory

maximum. Therefore, the district court ʹ s failure to put its Guidelines range calculation

on the record was not plain error.

Second, Lloyd argues that the district court erred by failing to explicitly

consider the § 3553(a) factors. We presume, however, that a sentencing judge has‐ 10

‐ considered these factors in the absence of record evidence suggesting otherwise. See

Fernandez

, 443 F.3d at 30. Here, there is no error because the record shows that the court

considered Lloyd ʹ s history and characteristics, and Lloyd has not pointed to any

evidence suggesting the court did not consider these factors.

Lastly, Lloyd argues that the court failed to ʺ state its reasons for imposing

the particular sentence of supervised release. ʺ Appellant ʹ s Br. at 23 (internal quotation

marks and alteration omitted). The district court did not, however, impose a term of

supervised release. To the extent Lloyd is arguing that the court failed to explain its

reasons for the term of imprisonment, his argument also fails. As stated above, the

court explained its reasons for imposing a term of 24 months ʹ imprisonment.

Accordingly, the district court did not commit plain error in sentencing

Lloyd to 24 months ʹ imprisonment.

* * *

We have considered Lloyd ʹ s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM

.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk