10-4963-cr United States v. Howard **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** **’ 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**  **“ 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 19 thday of January, two thousand twelve. 4 5 PRESENT: DENNIS JACOBS, 6 Chief Judge , 7 RICHARD C. WESLEY, 8 SUSAN L. CARNEY, 9 Circuit Judges

. 10 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 17 v. 10-4963-cr 18 19 TYRONE HOWARD, 20 21 Defendant-Appellant. 22 23 24 FOR APPELLANT: MOLLY K. CORBETT, Research and Writing 25 Specialist, for Lisa Peebles, Acting 26 Federal Defender, Federal Public Defender 27 Office, Albany, N.Y. 28 29 FOR APPELLEE: BRENDA K. SANNES, Assistant United States 30 Attorney (Daniel Hanlon, Assistant United 31 States Attorney, on the brief ), for 32 Richard S. Hartunian, United States 33 Attorney for the Northern District of New 34 York, Syracuse, N.Y. 352 1 Appeal from the United States District Court for the 2 Northern District of New York (Scullin, J. ). 3 4 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 5

**AND DECREED**that the judgment of the United States District 6 Court for the Northern District of New York be **AFFIRMED**

. 7 Appellant appeals from a judgment of the United States 8 District Court for the Northern District of New York 9 (Scullin, J. ), which imposed an incarceratory sentence of 90 10 months and a condition of supervised release that Appellant 11 not associate with members of the Bloods Criminal Street 12 Gang (“Bloods”). We assume the parties’ familiarity with 13 the underlying facts, the procedural history, and the issues 14 presented for review. 15

**BACKGROUND** 16 Defendant-Appellant Tyrone Howard pleaded guilty to a 17 one-count indictment charging him with violating 18 U.S.C. § 18 922(g)(1), which prohibits felons from possessing firearms. 19 Because Howard possessed a semi-automatic firearm and had 20 two prior qualifying offenses, Howard’s base offense level 21 under the United States Sentencing Guidelines (“Guidelines”) 22 was 26. U.S.S.G. § 2K2.1(a)(1). Howard also had a 23 significant criminal history, which placed him in criminal 243history category V. The district court gave Howard a three1 level reduction for his acceptance of responsibility, 2 bringing his offense level to 23. 3 The Guidelines called for 84 to 105 months of 4 imprisonment. The district court sentenced Howard to 90 5 months’ incarceration. It also imposed a supervised release 6 condition prohibiting Howard from associating with any 7 member of the Bloods. Howard now appeals from the district 8 court’s imposition of the sentence and condition of 9 supervised release. 10

**DISCUSSION** 11 We review the sentence imposed by the district court to 12 determine whether it is reasonable. Gall v. United States, 13 552 U.S. 38, 46 (2007); United States v. Cavera , 550 F.3d 14 180, 187-88 (2d Cir. 2008) ( en banc ). Reasonableness 15 review, which has both procedural and substantive 16 components, is “akin to review for abuse of discretion.” 17 United States v. Fernandez , 443 F.3d 19, 27 (2d Cir. 2006). 18 Howard contends that this Court should vacate his 19 sentence for three reasons: (1) the district court committed 20 procedural error by (a) failing to adequately explain its 21 sentence, and by (b) failing to explicitly address Howard’s 224argument that the enhancement for possession of a semi1 automatic firearm in U.S.S.G. § 2K2.1(a)(1) lacked an 2 empirical basis; (2) an incarceratory sentence of 90 months’ 3 imprisonment is substantively unreasonable, primarily 4 because U.S.S.G. § 2K2.1(a)(1) lacks an empirical basis; and 5 (3) the district court committed procedural error by failing 6 to comply with Federal Rule of Criminal Procedure 7 32(i)(3)(B)’s requirement that the district court either 8 rule on Howard’s dispute with the pre-sentence report’s 9 references to his membership in the Bloods or, 10 alternatively, explicitly state that the matter would not 11 affect sentencing; he further argues that the condition of 12 supervised release prohibiting him from associating with 13 members of the Bloods must be stricken. Each of these 14 arguments is taken in turn. 15 16 First, we reject Howard’s claim that the district court 17 committed procedural error by failing to adequately explain 18 its sentence and by failing to explicitly address his 19 argument that the applicable Guideline lacked an empirical 20 basis. A district court commits procedural error when it 21 fails to adequately explain its sentence, as 18 U.S.C. 22 3553(c) requires. Cavera , 550 F.3d 180, 192-93 (2d Cir. 235 2008). Although “[s]tating no reasons at all plainly falls 1 short” of satisfying § 3553(c), see United States v. Lewis , 2 424 F.3d 239, 245 (2d Cir. 2005) (internal quotation marks 3 omitted), the district court’s explanation of its sentence 4 need not be extensive, especially where a Guidelines 5 sentence is imposed, see Rita v. United States , 551 U.S. 6 338, 356-59 (2007). “[A]dopting the findings of the PSR is 7 ordinarily sufficient to satisfy § 3553(c).” United States 8 v. Buissereth , 638 F.3d 114, 117 (2d Cir. 2011). If the 9 defendant fails to object to the limited nature of the 10 district court’s explanation, plain error review applies. 11 United States v. Villafuerte , 502 F.3d 204, 211 (2d Cir. 12 2007). 13 Here, the district court adopted the findings of the 14 pre-sentence report in open court, and it imposed a 15 Guidelines sentence, which does not require lengthy 16 explanation. As such, Howard, who did not object below to 17 what he now perceives as the district court’s lack of an 18 adequate explanation of its sentence, has failed to 19 demonstrate plain error. Similarly, we reject Howard’s 20 claim that the district court erred by failing to explicitly 21 address his argument that the applicable Guideline lacked an 226 empirical foundation. This Court has never required that 1 the district court address every argument, frivolous or not, 2 made by the defendant. See United States v. Bonilla , 618 3 F.3d 102, 111 (2d Cir. 2010). 4 We turn next to Howard’s claim that his sentence was 5 substantively unreasonable because the Guideline applicable 6 to felons possessing semi-automatic weapons, U.S.S.G. § 7 2K2.1, lacks an empirical basis and thus is of “questionable 8 integrity.” Howard Br. 22. In support of this contention, 9 Howard cites the Supreme Court’s decision in Kimbrough v. 10 United States , 552 U.S. 85 (2007), and this Court’s decision 11 in United States v. Dorvee , 616 F.3d 174 (2d Cir. 2010). 12 This argument is without merit. That the Sentencing 13 Commission did not cite empirical data in support of its 14 amendment to the Guideline does not render the Guideline 15 flawed. See United States v. Perez-Frias , 636 F.3d 39, 43 16 (2d Cir. 2011). 17 Finally, we turn to Howard’s argument that the district 18 court erred because it failed to resolve his dispute with 19 the pre-sentence report’s references to his purported 20 membership in the Bloods and then based a supervised release 21 condition on that disputed membership. Federal Rule of 227 Criminal Procedure 32(i)(3)(B) requires that for any 1 disputed portion of the pre-sentence report, the district 2 court either “rule on the dispute or determine that a ruling 3 is unnecessary . . . because the matter will not affect 4 sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Here, although 5 the district court did not rule on whether Howard was a 6 member of the Bloods or explicitly state that it would not 7 consider the matter in sentencing Howard, the district 8 court’s remarks at Howard’s sentencing hearing, when read in 9 context, made clear that it would not consider Howard’s 10 purported membership in the Bloods when crafting its 11 sentence. Any technical failure on the part of the district 12 court to explicitly state as much is harmless. Cf. United 13 States v. Gilmore , 599 F.3d 160, 168 (2d Cir. 2010). 14 That the district court imposed a supervised release 15 condition prohibiting Howard from associating with members 16 of the Bloods does not suggest otherwise. Howard, through 17 counsel, admitted that he associated with members of the 18 Bloods in the past. The imposition of the condition, which 19 prevents Howard from associating with members of a violent 20 criminal enterprise during the period of his supervised 21 release, does not constitute plain error. See U.S.S.G. § 228 5D1.3(c)(9); United States v. Albanese , 554 F.2d 543, 546 1 (2d Cir. 1977). 2 We have considered Howard’s remaining arguments and, 3 after a thorough review of the record, find them to be 4 without merit. 5 For the foregoing reasons, the judgment of the district 6 court is hereby **AFFIRMED**

. 7
8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12