1 15-3535 United States v. Winn
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential e ffect. Citation to a summary order filed on or after January 1, 2007 is permitted and is governed by Fe deral 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 “s ummary 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 Thurgood Marshall United States C ourthouse, at 40 Foley Square, in the City of New York, on the 3 rd day of November, two thousand sixteen. Present: ROBERT A. KATZMANN, Chief Judge , RALPH K. WINTER, REENA RAGGI, Circuit Judges

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________________________________________________ UNITED STATES OF AMERICA, Appellee , v. No. 15-3535 EULION ALLEN, a/k/a Le le, SAYWONE WARE, JOHN HINES, a/k/a Blue, Defendants , DEREK WINN, a/k/a Suey, Defendant-Appellant.

________________________________________________ For Appellee: D AVID C. P ITLUCK , Assistant United States Attorney (Peter A. Norling, Assistant United States Attorney, on the brief ), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY. For Defendant-Appellant: F LORIAN M IEDEL , Miedel & Mysliwiec LLP, New York, NY.
Appeal from the United States District C ourt for the Eastern District of New York (Irizarry, J. ).2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED

. Defendant Derek Winn appeals from a judgmen t of the United States District Court for the Eastern District of New York (Irizarry, J. ) sentencing him principall y to thirty-six months’ imprisonment for violating the terms and conditions of his supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Winn was originally convicted in the East ern District of New York on narcotics and firearms charges. After completing his custodial se ntence and serving several years of his term of supervised release, Winn absconded from superv ision and was eventually arrested in Georgia over two years later. He pleaded gu ilty to a fraud offense in the S outhern District of Georgia and was sentenced to twenty-four months’ incarcer ation. He subsequently pleaded guilty in the Eastern District of New York to violating the terms and conditions of his supervised release by committing a new federal offense. The district court sentenced him to thirty-six months—well above the Guidelines range of eight to fourt een months—to be served consecutively to his sentence in the Southern District of Georgia. In explaining that above-Guid elines sentence, the court first noted that “the sentence on a violation of supervised release reflects something different than punishment for the new crime that has been committed. It is a punishment of a violation of the trust of the Court.” App. 72. The court then discussed several fact ors that influenced Winn’s sent ence. The court noted that Winn had received a significant downward vari ance on his underlying se ntence based on his cooperation and the court’s belie f in his potential. Next, the court observed that it had not imposed any significant sanctions for Winn’s previous violations of supervis ed release, such as violating curfew, using marijuana, and associati ng with felons. In response to Winn’s argument that he left New York because he received threats from the gang members against whom he had3 cooperated with the government, the court stated that “the bo ttom line is that the FBI and probation did do everything within [their] power to protect you whenever you complained of threats,” but that Winn “decided to abscond.” App. 74. Finally, it discussed Winn’s conduct in Georgia, stating: [T]he fact of the matter is that you we re in a location where crimes were being committed. You were with an underage girl. I’m not buying this nonsense of, well, you know, she looked older, she said she was older. That’s garbage. You had barber skills . You had no need to engage in the crime that you ultimately got convicted for. Those are transferrable skills. You had absconded for a period of two years. App. 74. The court concluded that an above-Gui delines sentence was warranted because Winn “seriously violated the trust of the Court,” a nd “violated every opportunity that the Court and probation gave [him] to do better for [him]self, to continue to help [his] daughter and to continue to do well.” App. 75. Winn argues that the district court committed procedural error by failing to give specific reasons for imposing an above-Guidelines sentence. A sentencing court is required to “state in open court the reasons for its imposition of [a ] particular sentence.” 18 U.S.C. § 3553(c); see also United States v. Chu , 714 F.3d 742, 746 (2d Cir. 2013) (per cu riam) (stating that a district court commits procedural error when it “fails adequately to explai n the chosen sentence” (quoting United States v. Robinson , 702 F.3d 22, 38 (2d Cir. 2012))). “[W]e do not require district courts to engage in the utterance of ‘robotic incantati ons’ when imposing sentences in order to assure us that they have weighed in an appropriate manner th e various section 3553(a) factors.” United States v. Sindima , 488 F.3d 81, 85 (2d Cir. 2007) (quoting United States v. Crosby , 397 F.3d 103, 113 (2d Cir. 2005), abrogated on other grounds by United States v. Fagans , 406 F.3d 138, 142 (2d Cir. 2005)). Nonetheless, “the district c ourt’s statement of reasons must at least explain—in enough detail to allow a review ing court, the defendant, his or her counsel, and members of the public to understand—why the considerations used as4 justifications for the sentence are ‘sufficiently co mpelling []or present to the degree necessary to support the sentence imposed.’” Id. at 86 (internal cita tion omitted) (quoting United States v. Rattoballi , 452 F.3d 127, 137 (2d Cir. 2006) , abrogated in part on other grounds by Kimbrough v. United States , 552 U.S. 85 (2007)). Because Winn failed to object to the district court’s explanation of his sentence, we review only for plain error. United States v. Villafuerte , 502 F.3d 204, 207-08 (2d Cir. 2007). Under that standard, the defe ndant must demonstrate that: (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, in tegrity or public reputation of judicial proceedings. United States v. Marcus , 560 U.S. 258, 262 (2010) (internal quotation marks and alterations omitted). First, Winn argues that the district court’s explanation is insufficient because the reasons the court gave orally during the sentencing hearin g were inconsistent with its written statement of reasons. Specifically, he argue s that the court’s oral explan ation focused on his conduct in Georgia whereas the written explanation referred to the “facts and circumstances of this offense.” Reading both explanations in their entirety, how ever, there is no material inconsistency. The district court’s written explanation contained a paragraph setting forth additional reasons for its upward variance beyond its generic reference to th e “facts and circumstances of this offense,” and those reasons were substantially similar to those the court articulated in detail at the sentencing hearing. Second, Winn argues that the court imp roperly relied on uncharged and unproven conduct, specifically, the fact that he was arrested in a lo cation where crimes were being committed and that he was with an underage girl. We have held that “conduct underlying5 acquitted or dismissed charges or uncharged conduct may be taken into account in sentencing if the government establishes that conduc t by a preponderance of the evidence.” United States v. Aldeen , 792 F.3d 247, 254 (2d Cir. 2015). Here, “no h earing occurred and no specific findings were made” with respect to the circumstances of Winn’s arrest. Id

. However, not only did Winn fail to disput e these facts at sent encing, he expressly admitted that they were true. His attorney admitted that, at the time of Winn’s arrest, “he was staying in a place where there was access device equipment,” A pp. 59, and was with a sixteenyear-old girl. Winn himself admitted that he cons orted with an underage girl. Accordingly, there does not appear to be any disput e that these facts are true. Fu rthermore, the district court mentioned these facts only in passing, focusing pr imarily on Winn’s breach of the court’s trust. Under these circumstances, the district court’s fa ilure to make an express factual finding does not “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” Marcus , 560 U.S. at 262 (citation and alteration omitted). Finally, Winn argues that the di strict court’s reasons were not sufficiently compelling to justify the magnitude of its depart ure from the Guidelines. He fau lts the district court for failing to explain why a sentence shorte r than thirty-six mont hs would not have sufficed to achieve the goals of sentencing. However, we have “decline[ d] to impose a requirement for such specific articulation of the exact number of months of an imposed sentence.” United States v. Jones , 460 F.3d 191, 195 (2d Cir. 2006). Here, the district court explained in detail why it considered Winn’s breach of the court’s trust to be suffici ently serious to merit a sentence substantially above the Guidelines range. This explanation wa s sufficient to “inform[] the defendant of the reasons for his sentence,” to “permit[] meaningful appellate review,” and to “enabl[e] the public to learn why the defendant received a particular sentence.” Villafuerte , 502 F.3d at 210. Accordingly, the district court did not commit procedural error.6 Winn also challenges the substantive reasonableness of his sentence. We will vacate a sentence as substantively unreas onable “only in exceptional cases where the trial court’s decision ‘cannot be located within the ra nge of permissible decisions.’” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)). When reviewing a non-Guidelines sentence, “we may take the de gree of variance into account and consider the extent of a deviation from the Guidelines,” but we “must not employ a rigid mathematical formula that uses the perc entage of a departure as the standard for determining the strength of the justifica tions required for a specific sentence.” Id. at 190 (quoting Gall v. United States , 552 U.S. 38, 47 (2007)) (internal quotation marks omitted). 1 First, Winn argues that the district cour t’s reliance on the downward variance that he received at his initial se ntencing was erroneous under United States v. Sindima , 488 F.3d 81, 86– 87 (2d Cir. 2007). However, Sindima does not foreclose a district court from imposing an aboveGuidelines sentence based on its previous lenien cy toward the defendant. To the contrary, the Guidelines expressly contemplate that practice an d provide that “[w]here the original sentence was the result of a downward depa rture (e.g., as a reward for subs tantial assistance) . . . an upward departure may be warranted.” U.S.S.G. § 7B1.4 n.4; see also United States v. Verkhoglyad , 516 F.3d 122, 130 (2d Cir. 2008) (upholding sentence “in excess of the policy statement range” for probation violation in part because the defendant “had repeatedly betrayed the trust reflected in the[] lenient sentences” previously imposed). Sindima merely requires the court, when relying on a factor th at is already incorporated into the Guidelines range to impose an above-Guidelines sentence, to “articulate sp ecifically the reasons that this particular defendant’s situation is differe nt from the ordinary situati on covered by the [G]uidelines

1 Winn did not challenge the substantive reasonable ness of his sentence in the district court. “[T]his court has not determined whether [p lain error analysis] applies to unpreserved substantive challenges to a sentence.” United States v. Verkhoglyad , 516 F.3d 122, 134 (2d Cir. 2008). We need not decide this question here, as Winn’s claim would fail even under an abuseof-discretion standard. See United States v. Thavaraja , 740 F.3d 253, 258 n.4 (2d Cir. 2014).7 calculation.” 488 F.3d at 87 (quoting United States v. Zapete-Garcia , 447 F.3d 57, 60 (1st Cir. 2006)). The district court fulfille d this requirement here. Second, Winn argues that the district court’ s written explanation emphasized the “facts and circumstances of this offense,” and thus failed to heed the Sentencing Commission’s directive that “at revocation the court should sanc tion primarily the defendant’s breach of trust, while taking into account, to a limited degree , the seriousness of the underlying violation and the criminal history of the violator.” Sindima , 488 F.3d at 86 (quoting U.S.S.G. ch. 7, pt. A.3(b)). This argument ignores the recor d. In fact, the district court appropriately emphasized Winn’s breach of trust, explaining that the sentence wa s based on the leniency Winn had received when first sentenced, the leniency he received for his previous violations of supervised release, his decision to abscond from supervision, and his failure to make use of the skills he acquired under supervision. Under these circumstances, the se ntence imposed by the court was not “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” Rigas , 583 F.3d at 123. We have considered all of Winn’s arguments and find them to be without merit. For the reasons given, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O = Hagan Wolfe, Clerk