21

- 1496 United States v. Forde



## 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 CIT ING 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 City of 2 New York, on the 7 t h da y of J u n e , two thousand twenty

- two

. 3 4 PRESENT: 5 ROSEMARY S. POOLER , 6 ROBERT D. SACK , 7 MICHAEL H. PARK , 8 Circuit Judges. 9 10

_____________________________________ 11 12 UNITED STATES OF AMERICA , 13 14 Appellee , 15 16

v. 2 1

- 1496 17 18 RIC AR DO FORDE , 19 20 Defendant

- Appell ant

. 21

_____________________________________ 22 23 FOR DEFENDANT

- APPELLANT: A LLEGRA G LASHAUSSER , Assistant 24 Federal Defender, Appeals Bureau, 25 Federal Defenders of New York, Inc., 26 New York, N

. Y. 27 28 FOR APPELLEE : A NDREW D. W ANG (Saritha Komatireddy, 29

on the brief ), Assistant United States 30 Attorney, for Breon Peace , United States 31 Attorney for the Eastern District of New 32 York, Brooklyn, N

. Y. 332 Appeal from a judgment of the United States District Court for the East ern District of New 1

York ( Amon
, J .). 2

UPON DU E CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4
On January 3, 2019, Defendant Ricardo Forde pled guilty to one count of being a felon in 5
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to fourteen 6
months’ imprisonment and three years of supervised release

. Forde’s conditions of supervised 7
release required him to maintain full

- time employment, to refrain from committing another crime, 8

and to avoid as sociating with a member or associate of any criminal street gang. In the months 9
following his release
, the U.S. Probation Office filed eight charges against Forde alleging 10
violations of supervised release. These included using controlled substances, resi sting arrest, 11
obstructing governmental administration, failing to secure full

- time employment, and associating 12
with gang member s

. 13

On March 15, 2021, Ford e pleaded guilty to three of these charges. Specifically, he 14

a llocuted to committing the crimes of r esisting arrest and obstructing governmental administration 15

under state law , as well as failing to secure full

- time employment after release. On June 1 4, 2021, 16

the district court sentenced Forde to six months of incarceration and an additional two

- year te rm 17
of supervised release

— a sentence within the Guidelines range of five to eleven months’ 18
imprisonment

. Forde filed a timely notice of appeal, and now argues that his sentence was 19
procedurally and substantively unreasonable. We assume the parties’ famili arity with the 20
underlying facts, procedural history of the case, and issues on appeal. 21

I. Procedural Reasonableness 22

When reviewing a sentence for procedural reasonableness, we “check the sentence to 233 ensure . . . that the district court followed the right steps in imposing it.” United States v. Ramos
, 1
979 F.3d 994, 998 (2d Cir. 2020). “ A district court commits procedural e rror when it fails to 2
calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing 3
Guidelines as mandatory, fails to consider the [18 U.S.C. ] § 3553(a) factors, selects a sentence 4
based on clearly erroneous facts, or fails ad equately to explain the chosen sentence.” United 5

States v. Tr a ficante , 966 F.3d 99, 102 (2d Cir. 2020) ( internal quotation marks omitted ) (alteration 6
in original)

. We “ apply a lenient abuse

- of

- discretion standard,” which “requires us to take into 7

account the totality of the circumstances, giving due deference to the sentencing judge’s exercise 8
of discretion, and bearing in mind the institutional advantage of the district courts.” Ramos , 979 9

F.3d at 998 ( internal quotation marks omitted ). “Where, as here , a defendant does not object at 10
sentencing to a district court’s failure to explain its reasoning, we review the procedural challenge 11
for plain error.” United States v. Smith , 949 F.3d 60, 66 (2d Cir. 2020)

. 1 12
In sentencing a defendant for a violation of supervised release, a district court must weigh 13

several factors including “the nature and circumstances of the offense,” “the history and 14

characteristics of the defendant,” “the need for the sentence imposed . . . to protect the public,” 15

and “the need to avoid unwarranted sentence disparities

. ” 18 U.S.C. § 3553(a); see id. § 3583(e). 16

“ [T] he degree of specificity required for [the court’s] reasons behind [such a ] sentence is less than 17

that for plenary sentencing

. . . . ” Smith , 949 F.3d at 66. F urther, “a sentence for a violation of 18
supervised release should primarily sanction the defendant’s ‘breach of trust,’ not the conduct 19
constituting the violation itself.” Ramos , 979 F.3d at 1002 (citation omitted) ; see also United 20

1 Under plain

- error review, the “ defendant must establish f our elements: (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 s eriously affects the fairness, integrity or public reputation of judicial proceedings.” Ramos , 979 F.3d at 998 ( internal quotation marks omitted ).4 States v. Edwards , 834 F .3d 180, 19 4 (2d Cir. 2016) (“ [T] he critical ‘subject under consideration’ 1
at a revocation proceeding is more than a charged violation ; it is the breach of trust manifested by 2

the violation , a matter often dependent on attending circumstances. ” (citing U.S .S.G. c h. 7, pt. A
., 3
introductory cmt. 3(b) ). 4
Forde argues that his sentence was procedurally unreasonable because “the court focused 5
heavily on unproven allegations” that he was associating with gang members

. Appellant’s Br. at 6

21. Forde emphasizes th at he did not plead guilty to th is charge and contends that the district 7
court should not have relied on these allegations without first holding a factual hearing. We 8
disagre e that his sentence was procedurally unreasonable

. 9

First, even if we were to assume that the district court erred by relying on the U.S. Probation 10
Office’s allegations concerning Forde’s association with gang members, Forde could not show 11
plain error because the court’s sentence was supported by more than those allega tions. At 12
sentencing, the district court referenced the undisputed facts that Forde tested positive for 13
marijuana, “a whole series” of curfew violations, the “obstruction of justice” and “resisting arrest” 14

violations, and his failure to “maintain full

- tim e verifiable employment” after “fail[ing] to comply 15
with [Probation’s job readiness] program.” App’x at 60, 63. The court then concluded that all 16

this conduct demonstrated “a substantial breach of trust.” Id . at 64. The district court also 17
weighed miti gating circumstances, stating that it was “willing to give in the sentence some 18
consideration to the fact that” Forde was “making efforts” at rehabilitation. Id . at 65. But the 19
court noted that it could not “ignore [Forde’s] earlier serious breaches of t rust in terms of the nature 20
of the violations he pled guilty to.” Id . The district court’s sentence was thus amply supported 21
by numerous uncontested violations and Forde has failed to show that any error affected his 22
substantial rights. 235 Second, we are unpersuaded by Forde’s reliance on United States v. Aldeen , 792 F.3d 247 1
(2d Cir. 2015)

. In Aldeen , we vacated a sentence for violation of supervised release after 2
concluding that the district court relied on certain unproven facts without making s pecific findings 3
or holding a factual hearing and significantly deviated upwards from the Guidelines range

. Id. at 4

254. T he district court was thus “obliged to provide a more substantial justification for its 5

sentence.” Id. Here, Forde’s sentence of si x months ’ imprisonment and two years of supervised 6
release straddled the lower end of the applicable five

- to

- eleven months Guidelines range. The 7
district court was not required to meet a heightened burden to justify Forde’s sentence , and, as 8

noted above, the sentence imposed was justified by Forde’s undisputed conduct. 9

II. Substantive Reasonableness 10

To establish substantive unreasonableness, a defendant must show that a sentence “cannot 11
be located within the range of permissible decisions available to a sentencing court.” United 12

States v. Messina , 806 F.3d 55, 66 (2d Cir. 201 5 ) ( internal quotation marks omitted ). “[W]e will 13
set aside only thos e sentences that are so shockingly high, shockingly low, or otherwise 14
unsupportable as a matter of law that allowing them to stand would damage the administration of 15
justice.” United States v. Muzio , 966 F.3d 61, 64 (2d Cir. 2020) ( internal quotation mark s 16

omitted ). 17

The district court’s sentence here was substantively reasonable. Forde pleaded guilty to 18

several supervised release violation charges

. His charges for resisting arrest and obstructing 19
governmental administration stem med from his encounter wi th the New York Police Department 20
(“NYPD”) on April 7, 2020, when NYPD officers found him drinking alcohol from an open 21

container outside his home. The police officers called out to him, and Forde fled inside his 22

apartment . When the officers pursued him, he resisted arrest. Forde also failed to cooperate with 236 efforts by the U.S. Probation Office to assist him in securing employment

. 2 Lastly, Forde 1
conceded at sentencing to failing to abide by his curfew and testing positive for marijuana

. Forde 2
had repeatedly shown a disregard for his supervised release conditions. The district court’s 3

sentence of six months’ imprisonment and two years of supervised release

— the lower end of the 4

five

- to

- eleven months Guidelines range

— was not outside the ran ge of permissible decisions. 5

* * * 6

We have considered all of Forde’s remaining arguments and find them to be without merit. 7
Accordingly, we AFFIRM the judgment of the district court

. 8

FOR THE COURT: 9 Catherine O ’ Hagan Wolfe, Clerk of Court 10

2 Forde first missed an appointment with a job readiness program scheduled by the U.S. Probation Office

. Then, a fter he finally reached out for vocational training, Forde failed to appear for his scheduled training appointment.