12

- 4222

- cr

United States v. Lynch

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 (wit h 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 for the Second Circuit, held at the 1

Thurgood Marshall United States Courthouse, 40 Foley Square , in the City of New York, on the 2

13 th day of August , two thousand thirteen. 3

4

PRESENT: 5

6

R O SEMARY S. P OOLER

, 7

R ICHARD C. W ESLEY

, 8

C HRISTOPHER F. D RONEY

, 9

Circuit Judges

, 10

11

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 12

13

U NITED S TATES OF A MERICA

, 14

15

Appellee

, 16

17

v. No. 12

- 4222

- cr 18

19

G REGORY L YNCH

, 20

21

Defendant

- Appellant

. 22

23

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 24

25

FOR APPELLANT : S TEPHANIE M. C ARVLIN

, New York, New York. 26

27

FOR APPELLEE : R AHUL K ALE ( Sandra S. Glover, on the brief ), 28

Assistant United States Attorney s , for David B. 29

Fein, United States Attorney for the District of 30

Connecticut, New Haven, Connecticut. 312

Appeal from the United States District Court for the District of Connecticut ( Chatigny

, 1

J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

D ECREED that the judgment of the d istrict c ourt be AFFIRMED

. 4

Defendant

- appellant Gregory Lynch appeals from a twelve

- month sentence of 5

incarceration that the United States District Court for the District of Connecticut (Chatigny, J. ) 6

imposed after Lynch pled guilty to one count of e scape, in violation of 18 U.S.C. § 751

. 1 He 7

challenges only the procedural reasonableness of that sentence , for which we apply “a 8

particularly deferential form of abuse

- of

- discretion review.” United States v. Broxmeyer , 699 9

F.3d 265, 278 (2d Cir. 2012) (internal quotation marks omitted)

. 2 In conducting that review here, 10

w e assume the parties’ familiarity with the underlying facts, history, and issues presented. 11

Pursuant to sections 2P1.1(a)(1) and (b)(3) of the United States Sentencing Guidelines 12

(the “Guidelines”), the district court found that Lynch’s base offense level was thirteen, which 13

was reduced by four levels because Lynch left non

- secure custody. The district court further 14

reduced Lynch’s offense l evel by two levels for acceptance of responsibility, pursuant to section 15

3E1.1(a) of the Guidelines, which yielded a total offense level of seven. Based on Lynch’s prior 16

convictions, the district court found that Lynch had eight criminal history points, an d then added 17

two incremental points for having committed the instant offense while serving another sentence, 18

pursuant to section 4A1.1(d) of the Guidelines . This yielded a total of ten criminal history points, 19

1 In a separate opinion issued today, we address Lynch’s appeal of the district court’s denial of his motion to dismiss

the indictment for a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161

- 3174

. 2 “A district court commits procedural error . . . by failing to calculate the Guidelines range or by making a mistake

in its Guidelines calculation; by treating the Guidelines as mandatory; by fa iling to consider the section 3553(a)

factors; or by resting its sentence on a clearly erroneous finding of fact.” United States v. Preacely , 628 F.3d 72, 79

(2d Cir. 2010).3

which placed Lynch in Criminal History Categor y V. The Guidelines provide that a defendant in 1

Criminal History Category V with an offense level of seven is subject to an advisory 2

incarceration range of twelve to eighteen months. The district court imposed a sentence of twelve 3

months, at the bott om of Lynch’s Guidelines range. 4

Lynch contends that the district court engaged in impermissible “double counting” by 5

applying section 4A1.1(d) because the base offense level provided by section 2P1.1 already takes 6

into consideration the fact that he committed th e instant offense

– escape

– while serving another 7

criminal justice sentence. Section 4A1.1(d) of the Guidelines provides that a court is to “[a]dd 2 8

points if the defendant committed the instant offense while under any criminal justice sentence, 9

including probation, parole, supervised release, imprisonment, work release, or escape status.” 10

(emphasis omitted). The application note for section 4A1.1(d ) further provides that “[f]ailure to 11

report for service of a sentence of imprisonment is to be treated as an escape from such 12

sentence .” Id. § 4A1.1 cmt. 4; see also id. § 4A1.2(n). Lynch’s argument is thus foreclosed by 13

both the Guidelines themselves and our holding in United States v. Aska , in which we considered 14

and rejected nearly the same claim

. 314 F.3d 75, 77

- 78 (2d Cir. 2002). 15

Lynch also asserts that the district court erred by treating the Guidelines as presumptively 16

reasonable. However, during th e sentencing, the district court discussed the advisory nature of 17

the Guidelines at several junctures

, conducted an independent review of the factors provided by 18

18 U.S.C. § 3553(a)

, and concluded that there were no “aspects to [Lynch’s] history and 19

charac teristics that warrant a sentence above or below the [Guidelines] range.” The district court 20

also credited Lynch’s argument that h is escape was not well

- planned before imposing a sentence 21

at the very bottom of Lynch’s Guidelines range , even as the Governme nt advocated for an 224

above

- Guidelines sentence. On this record, we can discern no procedural error on the part of the 1

district court. 2

We have considered all of Lynch’s remaining arguments and found eac h of them to be 3

without merit. Accordingly, the judgment of the d istrict c ourt is AFFIRMED. 4

5

FOR THE COURT: 6

Catherine O’Hagan Wolfe, Clerk of Court 7

8