1 15-1078-cr United States v. LaMere 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 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 DA TABASE (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 Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 4 th day of March, tw o thousand sixteen.
PRESENT: JOHN M. WALKER, JR., REENA RAGGI, PETER W. HALL, Circuit Judges

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-------------------------------------- ------------------------------- UNITED STATES OF AMERICA, Appellee , v. No. 15-1078-cr JAMIE LAMERE, Defendant-Appellant

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---------------------------- ---------------------------- ------------- FOR APPELLANT: George E. Bair d, Assistant Federal Public Defender, Molly Corbett, Research and Writing Specialist, for Lisa Peebles, Federal Public Defender, Albany, New York. FOR APPELLEE: Edward Grog an, Michael D. Gadarian, Assistant United States Attorneys, for Richard S. Hartunian, United Stat es Attorney for the Northern District of New York, Syracuse, New York. Appeal from a judgment of the United Stat es District Court for the Northern District of New York (Gary L. Sharpe, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entere d on March 24, 2015, is AFFIRMED. Defendant Jamie LaMere, who was se ntenced in 2009 to 17 months’ imprisonment and a 5 year term of supervised release for failing to update his registration as a sex offender, see 18 U.S.C. § 2250(a), now appeals from a sentence of 12 months’ imprisonment and a 10-year term of superv ised release imposed in 2015 following revocation of supervision. LaMere contends that the se ntence is procedurally and substantively unreasonable. We assume the pa rties’ familiarity with the facts and record of prior proceedings, which we reference onl y as necessary to explain our decision to affirm.
1. Procedural Error LaMere submits that the district c ourt committed procedural error in failing (1) adequately to explain its reasons for th e sentence imposed, and (2) to state on the record the Guidelines range for his term of supervised release. Because LaMere did not raise these objections in the district court, we review only for plain error. See United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007); see al so United States v. Marcus, 560 U.S. 258, 262 (2010) (stating that plain error require s showing of (1) error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) calling in to question fairness, integrity, or public reputation of judicial pr oceedings). LaMere’s challenge fails at the first step of analysis. The district court, “at the time of senten cing, shall state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). If “the sentence3 concerns a violation of supervised releas e and the ultimate sent ence is within the recommended range, compliance with the statutory requirements can be minimal.” United States v. Cassesse, 685 F.3d 186, 192 (2d Cir. 2012). Here, the district court provided a sufficient explanation for th e challenged sentence by noting during the revocation hearing the importance of supervis ion for § 2250 crimes; and LaMere’s prior supervision violation in 2012, for which he was sentenced to 6 months’ imprisonment and 54 months’ supervised rel ease. Further, while acknowle dging the medical issues that contributed to LaMere’s second violation, the court stated that “the bottom line” was that LaMere was “not doin[g] well under supervis ion, which is the entire purpose in this case.” App’x 91; see also id. at 36–37 (petition stating that LaMere failed to report to probation as directed, to comp ly with drug testing program on various occasions, and to comply with sex offender treatment on seve ral occasions). Thus, the district court explained that the sentence imposed was based on LaMere’s “failures while under supervision,” and that it “escalate[d] the term of supervised release for the reasons . . . articulated.” Id. at 91–92. This was su fficient to satisfy 18 U.S.C. § 3553(c). In urging otherwise, LaMere argues th at the district court’s imposition of an above-Guidelines sentence required a written st atement of reasons. See United States v. Aldeen, 792 F.3d 247, 252 & n.4 (2d Cir. 2015). That argument fails because the 12- month sentence and 10-year term of supervis ion are consistent with the applicable Guidelines policy statements. See U.S.S.G. § 7B1.4(a) (providing Gu idelines range of 6 to 12 months’ imprisonment); id. § 7B1.3(g)(2 ) (providing that upon revocation, court may impose new term of supervision that “shall not exceed the term of supervised release4 authorized by statute for” und erlying offense); see also 18 U.S.C. § 3583(k) (authorizing up to lifetime supervision for § 2250 conviction). LaMere c ontends that the applicable Guidelines provide for only a 5-year term of s upervised release. See U.S.S.G. § 5D1.2. But where, as here, the court imposes a ne w term of supervision after revocation of supervised release, the polic y statement in U.S. S.G. § 7B1.3(g)(2) controls, and that provision references neither § 5D1.2 nor a recommended mi nimum term of supervised release. See United States v. Hall, 579 F. App’x 29, 31– 32 (2d Cir. 2014) (explaining that, under § 7B1.3(g)(2), imposition of 25 -year term of supervised release upon revocation of supervision was not a “devia tion from the Guidelines” where underlying offense was § 2250 conviction); cf. U.S.S.G. § 7B1.3(g)(1) (pro viding that upon revocation of probation, “provi sions of §§ 5D1.1–1.3 shall apply to the imposition of a term of supervised release”). Accordingly, the district court’s oral explanation of its sentence was sufficient. See United St ates v. Cassesse, 685 F.3d at 192. 1 Nor do we identify error in the district court’s failure explicitly to reference the sentencing range for LaMere’s supervision. The violation worksheet accurately stated that, pursuant to 18 U.S.C. § 3583(k) and U. S.S.G. § 7B1.3(g)(2), LaMere faced a term

1 United States v. Aldeen, 792 F.3d 247 (2d Cir. 2015), and United States v. Sindima, 488 F.3d 81 (2d Cir. 2007), on which LaMere relie s, warrant no different conclusion because, in both cases, the district court imposed an above-Guid elines sentence of imprisonment upon revocation of supervised re lease or probation. See United States v. Aldeen, 792 F.3d at 253 (concluding that dist rict court failed adequately to explain in open court and in written statement reasons for imposing “substantia lly above-Guidelines sentence”); United States v. Sind ima, 488 F.3d at 86–88 (conc luding that di strict court failed to provide sufficiently compelling reas ons for prison sentence that was 26 months greater than 10-month high end of Guid elines range). That is not this case.5 of supervised release between five years to life, and absent contrary evidence, which is lacking here, we presume that the district co urt considered this ra nge as required by 18 U.S.C. § 3553(a)(4)(B). See United States v. Verkhoglyad, 516 F.3d 122, 129–31 (2d Cir. 2008). Thus, LaMere’s procedural challenge fails.
2. Substantive Reasonableness In arguing that his sentence is substa ntively unreasonable, LaMere bears a heavy burden because we review the substantiv e reasonableness of a sentence under a “particularly deferential” abuse-of-discreti on standard. United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). 2 Indeed, we will set aside a sentence as substantively unreasonable “only in exceptiona l cases where the [district] court’s decision cannot be located within the range of permissible decisions.” Unite d States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en ba nc) (internal quotation marks omitted); see United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (e xplaining that substantive reasonableness review “provide[s] a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupporta ble as a matter of law”). That is not this case.

2 Although LaMere did not raise his substantive challenge to th e district court, we have not yet decided whether plain error review app lies to such an unpreserved challenge. See United States v. Thavaraja, 740 F.3d 253, 258 n. 4 (2d Cir. 2014). We need not here decide that question because, regardless of th e standard of review, LaMere’s challenge fails on the merits.6 As already discussed, the challenged se ntence did not deviate from the Guidelines, which provided for a 6-to-12-month term of imprisonment and up to lifetime supervised release. See U.S.S.G. §§ 7B 1.3(g)(2), 7B1.4(a). “[A]lth ough we do not presume that a within-Guidelines sentence is substantively reasonable, in the overwhelming majority of cases, a Guidelines sentence will fall comfor tably within the broad range of sentences that would be reasonable in the particular circumstances.” United States v. WagnerDano, 679 F.3d 83, 95 (2d Ci r. 2012) (internal quotation marks and citation omitted). Nothing in the record of this case warrants a different c onclusion. After considering the mitigating circumstances raised by LaMere, th e district court nonetheless concluded that his “failures while under supervision” require d an “escalate[d]” sentence. App’x 91–92. LaMere’s repeated violations of supervised re lease and the fact that he violated various conditions of his supervisio n in 2014 supported that assessment. Under these circumstances, we cannot conclude that LaMere’s sentence was substantively unreasonable. See United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing broad range of sentences that can be considered substantively reasonable).
3. Conclusion We have considered LaMere’s remaini ng arguments and conclude that they are without merit. Accordingly, we A FFIRM the district court’s judgment.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court