13-2821

United States v. Hightower

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 CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 24th 4 day of December, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 DEBRA ANN LIVINGSTON,

8 RAYMOND J. LOHIER, Jr.,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 13-2821-cr

16

17 SEAN HIGHTOWER, 

Defendant-Appellant.1 18

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20

21 FOR APPELLANT: Steven Yurowitz, Newman &

22 Greenberg, New York, New York.

23

1The Clerk of Court is directed to amend the case

caption as above.

1
1 FOR APPELLEE: Emily Berger, Lara Treinis Gatz,

2 for Loretta E. Lynch, United

3 States Attorney for the Eastern

4 District of New York, Brooklyn,

5 New York.

6

7 Appeal from a judgment of the United States District

8 Court for the Eastern District of New York (Seybert, J.).

9

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11 AND DECREED that the judgment of the district court be

12 AFFIRMED. 

13

14 Sean Hightower appeals from the judgment of the United

15 States District Court for the Eastern District of New York

16 (Seybert, J.), sentencing him to 48 months imprisonment for

17 violating conditions of his supervised release. We assume

18 the parties’ familiarity with the underlying facts, the

19 procedural history, and the issues presented for review. 

20

21 Hightower pled guilty in June 2006 to one count of

22 conspiring to commit Hobbs Act robbery and one count of

23 using a firearm in furtherance of that offense. The

24 advisory range for Hightower’s sentence pursuant to the U.S.

25 Sentencing Guidelines (“USSG”) was 84 to 90 months

26 imprisonment. The district court departed downward from the

27 Guidelines range, imposing a sentence of 72 months

28 imprisonment (and three years supervised release). By May

29 19, 2012, as he neared the conclusion of his term of

30 supervised release, Hightower was at the scene of a shooting

31 in Brooklyn. He was charged with attempted murder, assault

32 with intent to commit serious injury, criminal possession of

33 a weapon, menacing, and hindering prosecution. Hightower

34 pled guilty in New York state court to one count of

35 hindering prosecution.

36

37 In the district court, Hightower admitted that the

38 crime constituted a violation of his supervised release. 

39 The Guidelines range for this violation was three to nine

40 months imprisonment. Both the Probation Department and the

41 government recommended that the district court sentence

42 Hightower to the maximum term of five years imprisonment,

43 arguing that an earlier guilty plea and another violation of

44 supervised release justified the upward departure. The

45 district court imposed a sentence of 48 months imprisonment.

46

2
1 On appeal, Hightower challenges his sentence as

2 procedurally and substantively unreasonable. He also

3 contends that the district court could not sentence him to

4 imprisonment at all because the district court had not

5 advised him at his 2006 plea proceeding of the possibility

6 of imprisonment for violating his supervised release.

7

8 We review sentences for reasonableness, United States

9 v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),

10 which “amounts to review for abuse of discretion,” United

11 States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en

12 banc). This concept applies both to “the sentence itself

13 and to the procedures employed in arriving at the sentence.”

14 United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.

15 2008) (internal quotation marks omitted).

16

17 Hightower argues that his sentence was procedurally

18 unreasonable because the court did not explicitly discuss

19 factors that it was required to consider under 18 U.S.C.

20 §§ 3553(a) and 3583(e)(3). “[T]he law in this circuit is

21 well established that, in the absence of record evidence

22 suggesting otherwise, we presume that a sentencing judge has

23 faithfully discharged [the] duty to consider the statutory

24 factors.” Verkhoglyad, 516 F.3d at 129 (internal quotation

25 marks omitted). No record evidence suggests that the

26 district court either omitted to consider any required

27 factors or considered any improper factors. To the

28 contrary, the district court connected the sentence to

29 several of the § 3553(a) factors, such as by discussing

30 Hightower’s history and characteristics and by explaining

31 the need to protect the public from Hightower.

32

33 Hightower argues that the 48-month prison sentence was

34 substantively unreasonable. The requirement of substantive

35 reasonableness “provide[s] a backstop for those few cases

36 that, although procedurally correct, would nonetheless

37 damage the administration of justice because the sentence

38 imposed was shockingly high, shockingly low, or otherwise

39 unsupportable as a matter of law.” United States v. Rigas,

40 583 F.3d 108, 123 (2d Cir. 2009). An above-Guidelines

41 sentence for a violation of supervised release is less

42 likely to be unreasonable if the district court had imposed

43 a below-Guidelines sentence on the underlying conviction. 

44 Verkhoglyad, 516 F.3d at 129-30; USSG § 7B1.4, Application

45 Note 4 (“[w]here the original sentence was the result of a

46 downward departure . . . an upward departure may be

47 warranted” upon a future violation of supervised release). 

3
1 A below-Guidelines sentence was imposed for Hightower’s

2 original Hobbs Act conspiracy and accompanying firearms

3 charge. His criminal conduct while on supervised release

4 and his violations represent a breach of trust. The

5 district court’s 48-month sentence was neither “shockingly

6 high, shockingly low, [n]or otherwise unsupportable as a

7 matter of law.” Rigas, 583 F.3d at 123.

8

9 Finally, Hightower argues that a sentence of

10 incarceration was impermissible because the district court

11 failed to advise him prior to his guilty plea that a

12 violation of supervised release could result in

13 imprisonment. At the time of Hightower’s plea hearing, the

14 district court was required to “inform the defendant of, and

15 determine that the defendant understands, . . . any maximum

16 possible penalty, including imprisonment, fine, and term of

17 supervised release.” Fed. R. Crim. P. 11(b)(1)(H). 

18 However, any “variance from the requirements of [Rule 11] is

19 harmless error if it does not affect substantial rights.” 

20 Fed. R. Crim. P. 11(h). Hightower’s plea agreement stated

21 that a violation of supervised release could result in jail

22 time. Before pleading guilty, he confirmed that he

23 understood the plea agreement, and the district court

24 advised him that the maximum possible sentence was life

25 imprisonment and that he may be subject to supervised

26 release. Even assuming, without deciding, that the district

27 court should have explained the implications of violating

28 supervised release, on these facts the error was harmless. 

29 Cf. United States v. Andrades, 169 F.3d 131, 134 (2d Cir.

30 1999).

31

32 For the foregoing reasons, and finding no merit in

33 Hightower’s other arguments, we hereby AFFIRM the judgment

34 of the district court.

35

36 FOR THE COURT:

37 CATHERINE O’HAGAN WOLFE, CLERK

38

4