19

- 1860

- cr United States v. Morrison

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 TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 8 t h day of F e b r u a r y , two thousand tw enty

- one

. 3 4 PRESENT: B ARRINGTON D. PARKER , 5 RAYMOND J. LOHIER, JR., 6 STEVEN J. MENASHI, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 UNITED STATES OF AMERICA, 10 11 Appellee , 12 13

v. N o. 19

- 1 860

- cr 14 15 WILLIAM MORRISON , 16 17 Defendant

- Appellant

. 18

------------------------------------------------------------------ 192 FOR DEFENDANT

- APPELLANT : David Rynkowski , Esq., 1 Rensselaer, NY 2 3 FOR APPELLEE: Rajit S. Dosanjh, Assistant 4 United States Attorney , for 5 Antoinette T. Bacon , Acting 6 United States Attorney for the 7 Northern District of New York, 8 Syracuse , NY 9 Appeal from a judgment of the United States District Court for the 10

Northern District of New York ( Glenn T. Suddaby , Chief Judge ). 11
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 12

AND DECREED that the judgment of the District Court is AFFIRMED. 13

William Morrison appeals from a judgment of the District Court (Suddaby, 14
C.J. ) imposing a sentence of 36 months’ imprisonment follo wing his guilty plea 15
to violating the terms of his supervised release. On appeal, Morrison challenges 16

his sentence a s procedurally and substantively unreasonable and contends that 17

the eighteen

- month delay before his final revocation hearing violate d his rights 18

under the Due Process Clause and Federal Rule of Criminal Procedure 32.1

. We 19
assume the parties’ familiarity with the underlying facts and prior record of 203 proceedings, to which we refer only as necessary to explain our decision to 1

affirm. 2

1. Reasonableness of t he Sentence 3
We review a district court’s sentencing decision for procedural and 4

substantive reasonableness “under a deferential abuse

- of

- discretion standard.” 5

United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quot ation 6
marks omitted)

. 7

Morrison ar gues that his sentence is procedurally unreasonable because 8
the District Court failed to adequately justify its imposition of a sentence outside 9
the advisory Guidelines range . We disagree. A sentencing court makes a 10
procedural error if it bases a sentenc e on a “mistake in its Guidelines 11
calculation,” “does not consider the [18 U.S.C.] § 3553(a) factors,” “rests its 12
sentence on a clearly erroneous finding of fact,” or “fails adequately to explain its 13
chosen sentence,” including “any deviation from the Guid elines range.” Id. 14
(quotation marks omitted). “Where, as here, a defendant does not object at 15
sentencing to a district court’s failure to explain its reasoning, we review the 16
procedural challenge for plain error.” United States v. Smith , 949 F.3d 60, 66 (2d 174 Cir. 2020). Here, t he District Court adequately articulated its reasons for 1
imposing the above

- Guidelines sentence, focusing on Morrison’s “deceitful, 2
dangerous, and alarming behavior , ” which included lying to his probation 3

officer , participating in a cocaine trafficking conspiracy, and possessing a loaded 4
firearm that put the public at risk. App’x 56

– 57. The District Court did not 5

commit procedural error, let alone plain error, warranting resentencing. 6

Morrison next contends that his above

- Guidelines sentence is 7
substantively unreasonable because the Guidelines adequately accounted for his 8
conduct and criminal history. We are not persuaded

. 9
A sentence is substantively unreasonable if it “cannot be located within the 10

range of permissible decisions.” Cavera , 550 F.3d at 189 (quotation marks 11
omitted). We consider the “totality of the circumstances, giving due deference to 12
the sentencing judge’s exercise of discretion, and bearing in mind the 13
institutional advantages of distr ict courts.” Id. at 190. At the revocation hearing, 14

Morrison admitted to four violations of his conditions of supervised release, 15
including participation in a conspiracy to distribute cocaine in violation of 16

federal law , criminal possession of a loaded f irearm in violation of state law , 175 leaving the judicial district without permission, and consuming alcohol. App’x 1

48

– 50. The District Court expressed particular concern about Morrison’s 2
deception and “high

- risk activities” that “put[] many lives at risk.” App’x 56

– 57. 3

And after the District Court responded to Morrison’s earlier supervised release 4

infractions with sanctions short of imprisonment , Morrison’s behavior had “just 5
got[ten] worse.” App’x 55. Under these circumstances, we cannot conclude that 6
the sentence imposed was “so shockingly high

. . . or otherwise unsupportable as 7
a matter of law” as to be substantively unreasonable. United States v. 8
Broxmeyer , 699 F.3d 26 5, 289 (2 d Cir. 2012) (quotation marks omitted). 9

2. Eighteen

- Month Delay 10
Morrison also contends that the eighteen

- month delay between the filing 11
of the Government’s original revocation petition and his revocation hearing 12
violated his rights to due process and to a reasonably prompt revocation hearing. 13
Due process requires tha t a person accused of violating the conditions of 14
supervised release receive a revocation hearing “within a reasonable time after 15
[the person] is taken into custody.” Morrissey v. Brewer , 408 U.S. 471, 488 (1972) ; 16

see United States v. Sanchez , 225 F.3d 17 2, 175 (2d Cir. 2000)

. Federal Rule of 176 Criminal Procedure 32.1(b)(2) similarly provides that “[u]nless waived by the 1
[releasee], the court must hold the revocation hearing within a reasonable time.” 2
In addition to showing that the delay was unreasonable, Morrison must establish 3
prejudice

— that is, that the delay “substantially limit[ed]” his “ability to defend 4
against” the charged violations. United States v. Ramos , 401 F.3d 111, 11 6 5
(2d Cir. 2005)

. 6
We need not address the reasonableness of the delay

— which was caused 7
primarily by Morrison’s repeated requests for adjournments

— because Morrison 8

has not established that he suffered any prejudice from the delay

. Upon review 9

of the record, we do not see how an earlier hearing would have helped Morrison 10
reduce his time in custody. To the contrary , Morrison appears to have benefitted 11
from the repeated delays, which allowed him to obtain new counsel and resolve 12

other pending charges before admitting to the underlying conduct at his 13
revocation hearing. We therefore reject Morrison’s argument that the delay 14

violated his constitutional or statutory rights. 157 We have considered Morrison’s remaining arguments and conclude that 1
they are without merit. For the foregoing reasons, the judgment of the District 2

Court is AFFIRMED. 3

FOR THE COURT: 4 Catherine O = Hagan Wolfe, Clerk of Court 5