1 16-301-cr United States v. Emmanuel 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 at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 7 th day of April, two thousand seventeen. PRESENT: BARRINGTON D. PARKER, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges

.

---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 16-301-cr VIRDIE EMMANUEL, Defendant-Appellant

.

-------------------------------------- -------------------------------- FOR APPELLANT: Darrell B. Fiel ds, Federal Defenders of New York, Inc., New York, New York. FOR APPELLEE: Lisa P. Korologos and Brian R. Blais, Assistant United States Attorneys, for Preet Bharara, United States Attorney fo r the Southern District of New York, New York, New York. Appeal from a judgment of the United St ates District Court for the Southern District of New York (P. Kevin Castel, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on January 28, 2016 is AFFIRMED in part, VACATED in part , and REMANDED. Defendant Virdie Emmanuel was convicted in October 2010, following a guilty plea, of wire fraud and interstate transportation of stolen property, see 18 U.S.C. §§ 1343, 2314, in connection with her embezzlement of more than $1.3 million from her employer over approximately eight years. Believing Emmanuel to have provided substantial assistance in an unrelated cas e, the government moved pursu ant to U.S.S.G. § 5K1.1 for her to receive a departure from her 51-to -63-month Guidelines prison range. The district court granted the motion, sentencing Emmanuel to time served (which equated to a few hours), but ordering restitution and consec utive terms of three years’ supervision on both counts of conviction. Unbeknownst to the government or the dist rict court, at the time of sentencing, Emmanuel was embezzling from another employ er, having already stolen approximately $6,000, and taking another $140,000 over th e next eight months. In 2014, New York State arrested Emmanuel for this conduct, and she was ultim ately convicted of second degree grand larceny. That same year, Emmanuel was charged with violating her federal supervised release, not only by enga ging in new criminal conduct but also by failing truthfully to report her employment to federal probation au thorities and to make good faith efforts to pay restitution. Fo llowing Emmanuel’s guilty plea, the district court aptly characterized her conduct as “br azen, willful, and deceitful,” App’x 79, and sentenced her to the maximum av ailable jail sentence of two y ears, to be followed by one3 year of supervision, which wo uld then be followed by the consecutive three-year term of supervision that Emmanuel ha d not yet begun to serve. On this appeal, Emmanuel challenges the substantive reas onableness of a 24-month prison term and the district court’s reiteration of consecutive supervision te rms. We assume the parties’ familiarity with the facts and record of prior proceeding s, which we reference only as necessary to explain our decision to affirm in part, vacate in part, and remand. 1. Substantive Reasonableness Emmanuel’s substantive reasonableness ch allenge is plainly meritless. We accord the district court “considerab le deference” on such challenges, United States v. Mazza-Alaluf , 621 F.3d 205, 214 (2d Cir. 2010), and will identify error “only in exceptional cases where the trial court’s decisi on cannot be located within the range of permissible decisions,” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) ( en banc ) (internal quotation marks omitted); see United States v. Lifshitz , 714 F.3d 146, 150 (2d Cir. 2013) (applying standard in context of violation of s upervised release). This is not such an exceptional case. Where a defendant violates supervised rel ease after receiving 5K1.1 consideration, both the Guidelines and preced ent recognize that a heightened sentence may be reasonable. See U.S.S.G § 7B1.4 cmt. n.4 (“Where th e original sentence was the result of a downward departure (e.g., as a reward for substantial assistance), . . . an upward departure may be warranted.”); see also United States v. Verkhoglyad , 516 F.3d 122, 129–30 (2d Cir. 2008) (citing, on violation of probation, § 7B1.4 application note, and observing that higher incarceratory sent ence may be warranted where defendant’s4 violation followed “significant sentencing c onsideration for . . . cooperation”). That conclusion is particularly warranted here, where Judge Duffy specifically told Emmanuel at her original sentencing that he was erring on the side of leniency in imposing only time served, but would impose the maximum author ized prison term if Emmanuel committed “another federal, state, or local crime.” App’x 32–33. As Emmanuel knew, however, she was then doing just that , embezzling thousands of do llars from a new employer, a crime that she would continue to commit for eight more months. This evidences such a complete betrayal of the court’s trust as to support a two-year sentence. See United States v. Verkhoglyad , 516 F.3d at 130 (concluding that incarceratory sentence above Guidelines policy statement warranted based on defendant’s willingness “repeatedly [to] betray[] the trust reflected” in court’s prior “lenient sentences”). That conclusion is only reinforced by the fact that E mmanuel was also lying to proba tion officials in representing that she was unemployed, a lie that, in add ition to betraying the court’s trust, allowed Emmanuel to conceal the criminal activity accompanying her empl oyment and to avoid good faith efforts at restitution. In these circumstances, ev en though Emmanuel presente d evidence of declining health, which the district court acknowledge d, we cannot conclude that a two-year sentence was outside the range of choices available so as to be substantively unreasonable. See United States v. Jones , 531 F.3d 163, 174 (2d Cir. 2008) (describing “broad range” of substantively reasonable sentences).5 2. Consecutive Imprisonment Term Emmanuel argues that the district cour t effectively reimposed unauthorized, consecutive supervision terms, and that the maximum total supervised release sentence available was one year. The government con cedes error insofar as the district court originally imposed consecutive three-year supervision terms given the statutory requirement for such term s to run concurrently. See 18 U.S.C. § 3624(e). The government nonetheless argues that Emma nuel may not here challenge her second three-year supervision term, which (1) she did not appeal, (2) she has not yet begun serving, and (3) the 2016 judgment did not alter. We agree that Emmanuel may not collate rally attack her second three-year supervision term in this supervised-release pr oceeding, which found her to have violated only her first term. 1 See United States v. Warren , 335 F.3d 76, 78 (2d Cir. 2003) (holding that “validity of an underlying c onviction or sentence ma y not be collaterally attacked in a supervised re lease revocation proceeding”). Nevertheless, to the extent that the district court imposed a one-year se ntence of supervised release on the violation of conviction while a consecutive three-year te rm remained in effect, we identify error. Title 18 U.S.C. § 3624(e) required the district court to run that one-year sentence concurrently with the other outstanding supe rvised-release sentence. The government’s argument that the district court imposed the further one-year supervision term only for violation of the initial three-year term ma kes no difference. Whether it was the initial

1 Judge Castel initially described the second consecutive term of supervised release as “reimpose[d],” App’x 81, but he subsequently clarif ied that he had “le[ft] undisturbed” the second term, App’x 85.6 term that ran consecutively to th e second or vice versa, the district court’s January 2016 judgment required consecutive service of term s of supervised release in violation of § 3624(e), and a total supervisio n term of four years, in violation of the three-year maximum supervisory term for Cla ss C felonies in § 3583(b)(2). Accordingly, we vacate the district court’ s judgment to the ex tent it required that the newly imposed one-year supervision term fo r the violations of supervision would run consecutively to the outstanding second three- year term, and we remand for entry of a modified judgment providing for su ch terms to run concurrently. 2

3. Conclusion We have considered the parties’ remaini ng arguments and conclude that they are without merit. Accordingly, the district court’s judgment is AFFIRMED in all respects except insofar as the one-year supervision term imposed on th e violations of convictions runs consecutively to an outstanding earlier th ree-year supervision term. The judgment is VACATED to that limited extent, with di rections that the district court run the one-year term concurrently, and without prejudi ce to further proceedings not inconsistent with this order. Emmanuel’s pro se motion for bail pending appeal is DENIED as moot.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court

2 On remand, the district court may well terminate or otherwise modify Emmanuel’s second (three-year) term of supe rvision by other means—such as in response to a habeas petition or an application pursuan t to 18 U.S.C. § 3583(e)—to ensure that she serves no more than the additional on e-year term contemplated by § 3583(h). Indeed, the government has indicated its likely consent to such action.