1 16-3184-cr United States v. Tukes UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held 1 at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 2 York, on the 13 th day of November, two thousand seventeen. 3 4 PRESENT: GERARD E. LYNCH, 5 SUSAN L. CARNEY, 6 Circuit Judges , 7 ERIC N. VITALIANO, 8 District Judge.  9

---------------------------- ---------------------------- --------------- 10 UNITED STATES OF AMERICA, 11 Appellee , 12 13 v. No. 16-3184-cr 14 15 ROMELL TUKES, 16 Defendant-Appellant

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---------------------------- ---------------------------- --------------- 18 FOR APPELLANT: Bruce R. Brya n, Bryan Law Firm, Syracuse, 19 NY. 20 21 FOR APPELLEE: Anden Chow, Mich ael Ferrara, Assistant United 22 States Attorneys, for Joon H. Kim, Acting 23 United States Attorney fo r the Southern District 24 of New York, New York, NY. 25

 Judge Eric N. Vitaliano, of the United States District Court for the Ea stern District of New York, sitting by designation.2 Appeal from a judgment of the United Stat es District Court for the Southern 1 District of New York (P. Kevin Castel, Judge ). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the judgment entere d on March 31, 2016, is AFFIRMED. 4 On November 9, 2015, in the United States District Court for the Southern District 5 of New York, defendant-appellant Romell Tuke s pleaded guilty to one count of being a 6 felon in possession of a firearm in violatio n of 18 U.S.C. § 922(g)(1). Early in the 7 morning of January 29, 2015, Tu kes shot two individuals (one in the shoulde r, one in the 8 hand) during an attempted drug purchase in Peekskill, Ne w York. Following his guilty 9 plea to the firearm possession charge, he was se ntenced to 96 months in prison, below the 10 applicable U.S. Sentencing Guidelines range of 110-12 0 months. On appeal, Tukes 11 argues that this sentence is substantively unre asonable. He urges that the District Court 12 failed to adequately consider his personal hi story, mental capacity, and acceptance of 13 responsibility. Tukes further argues that his cr iminal history category of VI, although 14 correctly calculated, “overstates the seriousness of his past criminal record.” Appellant’s 15 Br. 16. We assume the parties’ familiarity with the facts and the record of the prior 16 proceedings, to which we refer here only as necessary to e xplain our decisi on to affirm. 17 We review sentencing decisions for abuse of discretion. United States v. Cavera , 18 550 F.3d 180, 188 (2d Cir. 2008) (en banc). We have previously commented that 19 substantive unreasonableness challenges face “a particularly deferential form of abuse-of20

discretion review.” Id . at 188 n.5. Because sentences imposed within the Guidelines 21 range are typically reasonable, it is “difficult to find that a below-Guidelines sentence is 223 unreasonable.” United States v. Perez-Frias , 636 F.3d 39, 43 (2d Cir. 2011). This Court 1 will set aside the sentence imposed by a dist rict court on substantive unreasonableness 2 grounds only “in exceptional cases where the trial court's decision ‘cannot be located 3 within the range of permissible decisions.’” Cavera , 550 F.3d at 189 (quoting United 4 States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)). “The particular weight to be afforded 5 aggravating and mitigating factors is a matte r firmly committed to the discretion of the 6 sentencing judge with appellate courts seeking to ensure only that a factor can bear the 7 weight assigned it under the totality of circumstances in the case.” United States v. 8 Broxmeyer , 699 F.3d 265, 289 (2d Ci r. 2012) (internal quota tion marks and citations 9 omitted). 10 Tukes does not argue that the District Court failed to consider his arguments 11 regarding his personal history or any other factor. Rather, he contends the District Court 12

afforded them insufficient wei ght. Thus, in seeking to persua de us that the sentence is 13 substantively unreasonable, Tukes f aces a particularly heavy burden. See Broxmeyer , 699 14 F.3d at 289. He fails to carry it here. 15 First, Tukes claims that the District Cour t “did not adequately consider his tragic 16 personal history,” including hi s “diminished mental capacity.” Appellant’s Br. 16. 17 Nowhere does the record (or Tukes’s couns el) suggest that Tukes is intellectually 18 disabled, although the cases T ukes cites in support of his argument regarding “diminished 19 mental capacity” largely have to do with intellectual disability or other inability to 20 understand wrongfulness. See, e.g. , Tennard v. Dretke , 542 U.S. 274, 287 (2004) 21 (discussing mitigation for “mentally re tarded offenders” with low IQ); United States v. 224 Silleg , 311 F.3d 557, 562 n.4 (2d Cir. 2002) ( noting diminished capacity adjustment 1 appropriate when defendant cannot “(A) un derstand the wrongfulness of the behavior 2 comprising the offense or [] ex ercise the power of reason; or (B) control behavior that the 3 defendant knows is wrongful”). Tukes appears to argue primarily that his capacity was 4 meaningfully diminished because he was “und er the influence of alcohol and/or drugs” 5 when he shot the two individuals during the attempted drug transaction. Appellant’s Br. 6

24. The Guidelines provision a llowing departures for diminished mental capacity, 7 however, states that a reduction is inapprop riate if “the significantly reduced mental 8 capacity was caused by the voluntary use of drugs or other intoxicants.” U.S.S.G. 9 § 5K2.13. Thus, the District Court was co rrect to not reduce Tukes’s sentence on the 10 ground that he was intoxi cated during the offense. 11 Tukes next argues that the poor quality of his childhood, in which he suffered 12 abuse, together with his mental health i ssues justify a downward deviation from the 13 Guidelines beyond the already be low-Guidelines sentence. We conclude that the District 14 Court considered and reasonably weighed the factors that Tukes cites. The District Court 15 observed at sentencing that Tukes “had a horrible upbringing, lived in a household 16 characterized by neglect initially and also, at a later point in time, his mother’s partner 17 abused drugs and alcohol, was physically and verbally abusive and sexually molested the 18 defendant’s sisters.” App’x 58. The District Court also discu ssed Tukes’s history of drug 19 abuse, his suicide attempt, and his mental il lnesses. We may not su bstitute our judgment 20

for that of the District Court as to the weight to afford these factors. See Broxmeyer, 699 215 F.3d at 289 (holding weight afforded to aggravating and mitig ating factors “firmly 1

committed” to discretion of the sentenci ng judge). We will not do so here. 2

Tukes next contends that his criminal hi story category of VI, although accurately 3 calculated, overstates the seriousness of his ac tual criminal history. Whether to grant a 4 departure based on an overly high criminal hi story category or otherwise impose a below5

Guidelines sentence is a matte r, like the assessment of the factors just considered, that 6 ordinarily “lies within the disc retion of the sentencing judge.” United States v. Sanchez , 7 517 F.3d 651, 661 (2d Cir. 2008). Tukes does not claim that the District Court 8 misunderstood its authority to depart from th e Guidelines; he argues simply that it failed 9 adequately to depart from the correctly calculated criminal history category and 10 Guidelines range. Upon review of the record, we conclude that the District Court 11 adequately considered Tukes’s criminal hist ory and did not exceed the permissible scope 12

of its discretion in its asse ssment of that history. 13 The root of Tukes’s appellate challenges lies, we think, in the fact that when he 14 conducted his plea negotiatio n with the government, both defense counsel and the 15 prosecution were unaware of Tukes’s convicti on as a youthful offender for selling drugs 16 when he was 18 years old. Thus, the stipul ated Guidelines range of 70-87 months 17 erroneously rested on a criminal history cate gory of V and was lo wer than the correct 18 Guidelines range, as later calculated by the District Court. The District Court properly 19 informed Tukes during his plea hearing, howe ver, that the stipulated Guidelines range 20 was not binding on the court; that it might turn out to be wrongly calculated; and that the 21 government could not guarantee the court would impose a sentence within that range. 226 App’x 26-27. The written plea agreement, wh ich Tukes signed, also acknowledged that 1 the stipulated range was not binding on the Pr obation Office or the District Court and that 2

the Guidelines did not definitiv ely determine Tukes’s sentence. 3 This Court has previously affirmed the us e of youthful offender adjudications in 4 calculating criminal history scores. See United States v. Matthews , 205 F.3d 544, 548-49 5 (2d Cir. 2000). Furthermore, during the senten cing hearing the District Court thoughtfully 6 considered Tukes’s criminal history, offens e by offense (including his youthful offender 7 adjudication). App’x 59-60. It then repeated ly stressed the extensive nature of Tukes’s 8 criminal history (this included seven separate convictions incurred be tween the ages of 17 9 and 22), implicitly rejecting the argument made by Tukes’s counsel at sentencing that the 10 assigned criminal history category of VI overstated the seriousness of Tukes’s record. See 11

United States v. Hilts , 696 F. App'x 1, 3 (2d Cir. 2017) (summary order) (holding that 12 extensive consideration of criminal history at sentencing implicitly rejects argument that 13 criminal history score overstated severity of that history). In fact, the District Court 14 suggested that prior sentencing courts had treated Tukes’s early criminal history too 15 lightly, commenting, “[M]aybe we wouldn’t be here today if [Tukes] had spent more 16 time on prior offenses.” App’x 59. Thus, the District Court considered whether Tukes’s 17 criminal history was overstated and determin ed that it was not. This determination lay 18 within the range of the District Court’s permissible discretion. 19 Finally, Tukes urges us to conclude that the District Court failed adequately to 20 consider his expressions of remorse and atte mpts to rehabilitate himself when the court 21 applied only a three-level reduction to T ukes’s offense level for acceptance of 227 responsibility. Tukes argues that, in addition to the three-level reduction, the District 1 Court should have further departed because (T ukes asserts) he had a viable defense at 2 trial but chose to plead guilty. The record reflects, however, that the District Court 3 considered Tukes’s expressions of remo rse and acceptance of responsibility and 4 reasonably decided on that basis to make a th ree-level reduction. As to Tukes’s attempts 5 at rehabilitation, Tukes points only to a brief period of rehabilitation in 2014 before he 6 engaged in the conduct leading to this conviction. By the time of the sh ooting at issue in 7 this case, Tukes had quit college, begun ab using drugs heavily again, and stopped 8 working—apparently abandoning his efforts at rehabilitation. Cf. United States v. 9 Carpenter , 320 F.3d 334, 343 (2d Cir. 2003) (suggesting extraordinary rehabilitation 10

after conduct at issue and before arrest can justify sentencing reduc tion). We perceive no 11

error in the District Court’s treatment of Tukes’s expressions of remorse and attempted 12 rehabilitation in fashioning the sentence imposed. 13

We have considered all of Tukes’s rema ining arguments and conclude that they 14 are without merit. Accordingly, the judgm ent of the district court is AFFIRMED. 15

FOR THE COURT: 16 CATHERINE O’HAGAN WOLF E, Clerk of Court 17 18