1 21

- 2094 United States v. Rascoll

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 NO TATION “ 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 1 8 t h d a y of J u l y , two thousand twenty

- three

. 3 4 P resent : 5 E UNICE C. L EE , 6 A LISON J. N ATHAN , 7 Circuit Judges
, 8 J ED S. R AKOFF , * 9 District Judge

. 10 11

_____________________________________ 12 13 U NITED S TATES OF A MERICA , 14 15 Plaintiff

- Appell ee , 16 17

v. No. 21

- 2 0 94 18 19 C HRISTOPHER R ASCOLL , 20 21 Defendant

- Appell ant

. 22

_____________________________________ 23 24 25 26

* Judge Jed S. Rakoff, United States District Court for the Southern District of New York, sitting by designation.2 For Defendant

- Appellant: A NDREW G IERING ( Tracy Hayes , on the brief ), Assistant 1 Federal Defenders
, for Terence S. Ward
, Federal 2 Defender , New Haven, CT. 3 4 For Plaintiff

- Appell ee : R OBERT S. R UFF (Amanda S. Oakes and Marc H. 5 Silverman, on the brief ), Assistant United States 6 Attorneys, for Leonard C. Boyle, United States 7 Attorney for the District of Connecticut, New Haven, 8 CT. 9 10 Appeal from an ord er of the United States District Court for the District of Connecticut 11
( Dooley
, J

. )

. 12

UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND 13

DECREED that the judgment of the district court is AFFIRMED

. 14

Defendant

- Appellant Christopher Rascoll appeals from a sentence entered by the district 15
court after Rascoll ple a d ed guilty to one count of interference with the right to fair housing in 16

violation of 42 U.S.C. § 3631(a) and one count of sending threatening communications in vi olation 17

of 18 U.S.C. § 875(c). Rascoll was sentenced principally to an above

- Guidelines sentence of 36 18

months ’ imprisonment

. On appeal, Rascoll argues that the district court committed procedural 19
error by imposing a sentence without properly calculating the G uidelines range , specifically 20
without determining whether he was entitled to a two

- point reduction for acceptance of 21
responsibility . Rascoll also argues that the district court’s imposition of the above

- G uidelines 22
sentence was substantively unreasona ble. We assume the parties’ familiarity with the underlying 23

facts, the procedural history of the case, and the issues on appeal , which we reference here only as 24
necessary to explain our decision

. 25
From approximately November 2019 to June 2020, Rascoll rep eatedly sent a Jewish 26

woman antisemitic text messages and voicemails in which he threatened her with violence and 27

death. After Rascoll was arrested and charged
, psychiatric professionals diagnosed him with 283 several mental illnesses, including schizophrenia, borderline personality disorder, and paranoid 1
personality disorder. Probation calculated Rascoll’s Guidelines range as between 15 and 21 2
months’ imprisonment based on a criminal history category of I and an offense level of 14

. As 3
part of his later plea agreement, Rascoll accepted responsibility for the underlying offense conduct 4

and, i n exchange, the government , like probation, recommended a sentence within the Guidelines 5

range of 15 to 21 months ’ imprisonment

— which reflected the two

- point offense level reduction 6
for acceptance of responsibility. Without that reduction, the G uidelines range for Rascoll’s 7

conduct was 24 to 30 months ’ imprisonment

. 8
On August 14, 2021, shortly before his scheduled sentencing, Rascoll sent a letter to the 9

Rock land County District Attorney’s office
, which was prosecuting Rascoll for charges related to 10

similar offense conduct

. In that letter , Rascoll stated in relevant part : “ You will NEVER succeed 11
on any conviction nor will you succeed at putting me in [mental health treatment]

. . . Neither will 12

little [ v ictim’s first name], the Aryan, Drug Running Jew who is an active opiate user but claims 13

to be a sober alcoholic. NUTS.” Joint App’x at 56

. The letter also threatened the state 14
prosecutor with a v iol ent sexual assault , described in graphic detail

. 15

On August 25, 2021, the district court proceeded with sentencing. During the sentencing 16
hearing, the court expressed skepticism regarding whether Rascoll had truly accepted 17
responsibility for his crime s in light of the August 14 letter

. See Joint App’x at 105

– 06 (“ It is not 18
entirely clear to me that an adjustment for acceptance of responsibility is appropriate on this 19

record ,” because of “ the letter he sent to the Assistant District Attorney last week in wh ich more 20
of the same conduct occurred, which would suggest that he has not forsaken his criminal 21
activity

. . . . ”). Regarding the length of sentence, the district court stated that giving Rascoll 22
“credit for acceptance of responsibility .

. . is not going to impact the sentence in this case” because 23
“[w]hether the range is 15 to 21 months or 24 to 30 months .

. . the Guideline range does not 244 adequately capture the seriousness of the offens e.” Joint App’x at 140. The court continued 1

that “ the Guidelines

— again, whether it ’ s 24 to 30 months or 15 to 21

— woefully under[value] the 2

need .

. . for this sentence to meet the goals of sentencing: [s] pecific deterrence, incapacitation, 3

and rehabilita tion.” Joint App’x at 14 1

. O n August 26, 2021, the district court sentenced 4

Rascoll to a n above

- Guidelines term of 36 months ’ imprisonment. 5
“We review a district court’s interpretation and application of the Guidelines de novo , and 6
its factual findings for clear error.” United States v. Solis , 18 F.4th 395, 401 (2d Cir. 2021) 7
(citation s omitted). However, “ we review sentences only for reasonableness, a deferential 8
standard limited to identifying abuse of discretion regardless of whether a challenged sentence is 9
inside, just outside, or significantly outside the Guidelines range. ” United States v. Jones , 531 10
F.3d 163, 170 (2d Cir. 2008) ( internal quotation marks and citations omitted). 11
On appeal, Rascoll argues that the district court did not properly calculate the Guidelines 12
range and thus committed procedural error by imposing a sentence “where there was no 13
complicated question of law or fact that prevented [it] from deciding whether” the offense level 14

reduction for acc eptance of responsibility applied. Appellant’s Br. at 11. It i s clearly 15

established that “[f] ailure to calculate the correct Guidelines range constitutes procedural error .” 16
Peugh v. United States , 569 U.S. 530, 537 (2013)

. However, “[i] f we identify pr ocedural error 17
in a sentence, but the record indicates clearly that the district court would have imposed the same 18
sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence 19

and to remand the case for resentencing.” Solis , 18 F.4 th at 401 (citation omitted) ; see also 20

United States v. Jass , 569 F.3d 47, 68 (2d Cir. 2009) . Here, even assuming arguendo that the 21

district cour t committed procedural error, that error would have been harmless. During 22
sentencing, the district court repeatedly stated that neither G uidelines range

— 15 to 21 months with 23
the acceptance of responsibility reduction, or 24 to 30 months without the reduction

— reflected the 245 gravity of Rascoll’s underlying conduct . Thus, the district court clearly indicated that it would 1
have “imposed the same sentence in any event,” Solis , 18 F.4 th at 401, rendering any potential 2

error harmless. 3
Rascoll additionally claims that his sentence is substantively unreasonable. W e give 4
particular deference to district courts when considering questions of substantive unreasonableness 5

and “[w] e will identify as substantively unreasonable only those sentences that are so shockingly 6
high, shockingly low, or otherwise u nsupportable as a matter of law that allowing them to stand 7
would damage the administration of justice.” Solis , 18 F.4 th at 401

– 02 (citation omitted) ; see 8

also United States v. Richardson , 958 F.3d 151, 153

– 54 (2d Cir. 2020). Rascoll’s sentence to six 9

mo nths above the upper G uidelines range of 30 months is not “shockingly high

. ” Solis , 18 F.4th 10

at 401. This is especially true in light of the district court’s explanation for why it believed that 11
a longer sentence was necessary

— the seriousness of the offense and the need for deterrence, 12
incapacitation, and rehabilitation

. It was not unreasonable for the district court to conclude that, 13

in this instance, n either potential Guidelines range met those stated goals for sentencing. 14
Accordingly , under the circumstances of this case, the district court did not impose a substantively 15

unreasonable sentence

. 16

We have considered Rascoll ’s remaining arguments and find them to be without merit. 17

A ccordingly, we AFFIRM the judgment of the district court

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FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20