13-2821 United States v. Hightower



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 24 th** **day of December, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DEBRA ANN LIVINGSTON,** 7 **RAYMOND J. LOHIER, Jr.,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 13-2821-cr** 15 16 **SEAN HIGHTOWER,** 17 **Defendant-Appellant**

**.** 1 18
- - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** Steven Yurowitz, Newman & 21 Greenberg, New York, New York. 22 23

1The Clerk of Court is directed to amend the case caption as above.

1**FOR APPELLEE:** Emily Berger, Lara Treinis Gatz, 1 forLoretta E. Lynch, United 2 States Attorney for the Eastern 3 District of New York, Brooklyn, 4 New York. 5 6 Appeal from a judgment of the United States District 7 Court for the Eastern District of New York (Seybert, J. ). 8 9 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 10 **AND DECREED**that the judgment of the district court be 11
**AFFIRMED**

. 12 13 Sean Hightower appeals from the judgment of the United 14 States District Court for the Eastern District of New York 15 (Seybert, J. ), sentencing him to 48 months imprisonment for 16 violating conditions of his supervised release

. We assume 17 the parties’ familiarity with the underlying facts, the 18 procedural history, and the issues presented for review. 19 20 Hightower pled guilty in June 2006 to one count of 21 conspiring to commit Hobbs Act robbery and one count of 22 using a firearm in furtherance of that offense. The 23 advisory range for Hightower’s sentence pursuant to the U.S. 24 Sentencing Guidelines (“USSG”) was 84 to 90 months 25 imprisonment. The district court departed downward from the 26 Guidelines range, imposing a sentence of 72 months 27 imprisonment (and three years supervised release). By May 28 19, 2012, as he neared the conclusion of his term of 29 supervised release, Hightower was at the scene of a shooting 30 in Brooklyn. He was charged with attempted murder, assault 31 with intent to commit serious injury, criminal possession of 32 a weapon, menacing, and hindering prosecution. Hightower 33 pled guilty in New York state court to one count of 34 hindering prosecution. 35 36 In the district court, Hightower admitted that the 37 crime constituted a violation of his supervised release. 38 The Guidelines range for this violation was three to nine 39 months imprisonment. Both the Probation Department and the 40 government recommended that the district court sentence 41 Hightower to the maximum term of five years imprisonment, 42 arguing that an earlier guilty plea and another violation of 43 supervised release justified the upward departure. The 44 district court imposed a sentence of 48 months imprisonment. 45 46

2On appeal, Hightower challenges his sentence as 1 procedurally and substantively unreasonable. He also 2 contends that the district court could not sentence him to 3 imprisonment at all because the district court had not 4 advised him at his 2006 plea proceeding of the possibility 5 of imprisonment for violating his supervised release. 6 7 We review sentences for reasonableness, United States 8 v. Cossey , 632 F.3d 82, 86 (2d Cir. 2011) (per curiam), 9 which “amounts to review for abuse of discretion,” United 10 States v. Cavera , 550 F.3d 180, 187 (2d Cir. 2008) (en 11 banc). This concept applies both to “the sentence itself 12 and to the procedures employed in arriving at the sentence.” 13 United States v. Verkhoglyad , 516 F.3d 122, 127 (2d Cir. 14 2008) (internal quotation marks omitted). 15 16 Hightower argues that his sentence was procedurally 17 unreasonable because the court did not explicitly discuss 18 factors that it was required to consider under 18 U.S.C. 19 §§ 3553(a) and 3583(e)(3). “[T]he law in this circuit is 20 well established that, in the absence of record evidence 21 suggesting otherwise, we presume that a sentencing judge has 22 faithfully discharged [the] duty to consider the statutory 23 factors.” Verkhoglyad , 516 F.3d at 129 (internal quotation 24 marks omitted). No record evidence suggests that the 25 district court either omitted to consider any required 26 factors or considered any improper factors. To the 27 contrary, the district court connected the sentence to 28 several of the § 3553(a) factors, such as by discussing 29 Hightower’s history and characteristics and by explaining 30 the need to protect the public from Hightower. 31 32 Hightower argues that the 48-month prison sentence was 33 substantively unreasonable. The requirement of substantive 34 reasonableness “provide[s] a backstop for those few cases 35 that, although procedurally correct, would nonetheless 36 damage the administration of justice because the sentence 37 imposed was shockingly high, shockingly low, or otherwise 38 unsupportable as a matter of law.” United States v. Rigas
, 39 583 F.3d 108, 123 (2d Cir. 2009). An above-Guidelines 40 sentence for a violation of supervised release is less 41 likely to be unreasonable if the district court had imposed 42 a below-Guidelines sentence on the underlying conviction. 43 Verkhoglyad , 516 F.3d at 129-30; USSG § 7B1.4, Application 44 Note 4 (“[w]here the original sentence was the result of a 45 downward departure . . . an upward departure may be 46 warranted” upon a future violation of supervised release). 47

3A below-Guidelines sentence was imposed for Hightower’s 1 original Hobbs Act conspiracy and accompanying firearms 2 charge. His criminal conduct while on supervised release 3 and his violations represent a breach of trust. The 4 district court’s 48-month sentence was neither “shockingly 5 high, shockingly low, [n]or otherwise unsupportable as a 6 matter of law.” Rigas , 583 F.3d at 123. 7 8 Finally, Hightower argues that a sentence of 9 incarceration was impermissible because the district court 10 failed to advise him prior to his guilty plea that a 11 violation of supervised release could result in 12 imprisonment. At the time of Hightower’s plea hearing, the 13 district court was required to “inform the defendant of, and 14 determine that the defendant understands, . . . any maximum 15 possible penalty, including imprisonment, fine, and term of 16 supervised release.” Fed. R. Crim. P. 11(b)(1)(H). 17 However, any “variance from the requirements of [Rule 11] is 18 harmless error if it does not affect substantial rights.” 19 Fed. R. Crim. P. 11(h). Hightower’s plea agreement stated 20 that a violation of supervised release could result in jail 21 time. Before pleading guilty, he confirmed that he 22 understood the plea agreement, and the district court 23 advised him that the maximum possible sentence was life 24 imprisonment and that he may be subject to supervised 25 release. Even assuming, without deciding, that the district 26 court should have explained the implications of violating 27 supervised release, on these facts the error was harmless. 28 Cf. United States v. Andrades , 169 F.3d 131, 134 (2d Cir. 29 1999). 30 31 For the foregoing reasons, and finding no merit in 32 Hightower’s other arguments, we hereby **AFFIRM** the judgment 33 of the district court. 34 35 FOR THE COURT: 36 CATHERINE O’HAGAN WOLFE, CLERK 37 38

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