17-3295-cr United States v. Joshua Michael Furbeck 

### 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 AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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, held at the Thurgood Marshall United States Courthous e, 40 Foley Square, in the City of New York, on the 30 th day of January, two thousand nineteen. PRESENT: PETER W. HALL, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges

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_____________________________________ United States of America, Appellee , v. No. 17-3295 Joshua Michael Furbeck, Defendant-Appellant

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_____________________________________ For Appellant: Melissa A. Tuohey, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, New York
For Appellee: Miroslav Lovric, Rajit S. Dosanjh, Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, New York

### 2 Appeal from a judgment of the United States District Court for the Northern District of New York (Sannes, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendant-Appellant Joshua Michael Furbeck was convicted by guilty plea of one count of threatening to murder a federal law enforcement o fficer with intent to retaliate against the officer in the performance of his official duties, in vi olation of 18 U.S.C. § 115(a)(1)(B), and one count of threatening to murder an immediate family me mber of a federal law enforcement officer with intent to retaliate against the officer in the perf ormance of his official duties, in violation of 18 U.S.C. § 115(a)(1)(A) . Furbeck challenges his within-Gui delines 42-month sentence as procedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. First, Furbeck contends that the district court committed procedural error by refusing to grant a downward departure based on Furbeck’s (1) unusual mental and emotional conditions and (2) “significantly reduced mental capacity” whic h “contributed substantia lly to the commission of the offense,” pursuant to U.S.S.G. §§ 5H1.3 and 5K2.13, respectively. “Claims that the district court erred in refusing to depart are not cogni zable on appeal in the absence of substantial indication that the distri ct judge believed she lacked authority to depart or an indication that a violation of the law occurred.” United States v. Jackson , 658 F.3d 145, 153–54 (2d Cir. 2011). At sentencing, the district j udge acknowledged Furbeck’s reques t for a departure but stated, “I’ve carefully reviewed the PSR and the report prepared by the Federal Medical Center Devens and I do not find that there are mental and emotional conditions warranting a downward departure

### 3 under 5H1.3, and I don’t find that diminished capac ity departure is warranted under 5K2.13.” J. App. 92. The district court furthe r clarified, “I do not find there’s a significantly reduced mental capacity within [Section 5K2.13] or that the provi sion should be applied here because of the defendant’s substance abuse and his threats of violence. I therefor e adopt the Guideline calculation in the presentence report.” J. App. 93. Because the sentencing transcript confirms that the district court understood its departure au thority and instead chose not to exercise it, the “district court’s decision not to depart fr om the Guidelines is . . . unreviewable.” United States v. Robinson , 799 F.3d 196, 201 (2d Cir. 2015); see also United States v. Stinson , 465 F.3d 113, 114 (2d Cir. 2006) ( per curiam ) (declining to review decision not to downwardly depart where
“t he District Court considered each of the defendant’s requests and, upon finding that defendant did not qualify for either departure, denied th e requests with full knowledge of its authority.”). Second, Furbeck argues that his 42-month sent ence is substantively unreasonable because it failed to properly account for his need for mental health treatment. We must “set aside a district
court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) ( en banc ) (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)). Our “substantive reasonableness review is intended to ‘provide a backstop’ against sentences that are ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law.’ . . . [It] is not an opportunity for ‘tinkering’ with sentences we disagree with, and . . . we place ‘great trust’ in sentencing courts.” United States v. Dorvee , 616 F.3d 174, 183 (2d Cir. 2010) (quoting United States v. Rigas , 583 F.3d 108, 123 (2d. Cir. 2009)).

### 4 Furbeck was sentenced to 42 months of impr isonment, at the middle of his Guidelines range of 37 to 46 months. At sentencing the di strict court acknowledged Furbeck’s substance abuse and mental health issues and noted that Furb eck’s apparent lack of interest in addressing his substance abuse problems must be considered ag ainst the mitigating factors he had presented. The district court recommended that Furbeck pa rticipate in both drug a buse and mental health treatment while serving his sentence; in declini ng the government’s request for a higher Guidelines sentence, it also credited Furbeck’s participa tion in a mental health examination he underwent while awaiting sentencing. Because the chosen sent ence is one that “can[] be located within the range of permissible decisions,” Cavera , 550 F.3d at 189, and is not “shockingly high, . . . or otherwise unsupportable as a matter of law,” Rigas , 583 F.3d at 123, we fi nd no substantive error in the sentence imposed. We have considered Appellant’s remaining ar guments and find them to be without merit. We hereby AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court