12‐3662‐cr United States v. Diggins

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 TO 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 for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 3 York, on the 6th day of December, two thousand thirteen. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 SUSAN L. CARNEY, 8 Circuit Judges, 9 JOHN G. KOELTL, 10 District Judge.* 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 12‐3662‐cr 18 19 MICHAEL DIGGINS, 20 21 Defendant‐Appellant. 22 _____________________________________

* The Honorable John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation. 1 For Appellee: DANIEL S. NOBLE and DIANE GUJARATI, 2 Assistant United States Attorneys, for 3 Preet Bharara, United States Attorney for 4 the Southern District of New York, New 5 York, NY (on submission). 6 7 For Defendant‐Appellant: EDWARD D. WILFORD, New York, NY (on 8 submission). 9 10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

11 DECREED that the sentence imposed by the district court is AFFIRMED.

12 Defendant‐Appellant Michael Diggins appeals from a judgment of the United

13 States District Court for the Southern District of New York (Wood, J.), revoking his

14 term of supervised release and sentencing him to two ten‐month terms of

15 incarceration, to run consecutively, after Diggins pled guilty to two violations of the

16 conditions of his supervised release. On appeal, Diggins challenges the procedural

17 and substantive reasonableness of the sentence. Specifically, Diggins argues that his

18 sentence was unreasonable because the district court failed to analyze the factors

19 listed in

(a), and that it was unduly punitive. Diggins also claims

20 that the sentence runs afoul of the Eighth Amendment’s prohibition on cruel and

21 unusual punishments. We assume the parties’ familiarity with the underlying facts,

22 procedural history of the case, and issues on appeal.

23

2 1 I. Reasonableness

2 We review sentences for violations of supervised release for reasonableness.

3 United States v. Villafuerte,

(2d Cir. 2007). “Reasonableness review

4 requires an examination of the length of the sentence (substantive reasonableness)

5 as well as the procedure employed in arriving at the sentence (procedural

6 reasonableness).” United States v. Johnson,

(2d Cir. 2009). “The

7 procedural inquiry focuses primarily on the sentencing court’s compliance with its

8 statutory obligation to consider the factors detailed in

(a), while the

9 substantive inquiry assesses the length of the sentence imposed in light of the

10 § 3553(a) factors[.]” United States v. Verkhoglyad,

(2d Cir. 2008)

11 (internal quotation marks, citations, and alteration omitted). The standard of review

12 for both inquiries is abuse of discretion.

Further, because Diggins failed to object

13 to the procedural reasonableness of the sentence below, that challenge is subject only

14 to plain error analysis. See Villafuerte,

.

15 When imposing a sentence for a violation of supervised release, a district

16 court is required to consider the factors listed in

(a)(1), (a)(2)(B),

17 (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7), including the nature and

18 circumstances of the offense, the history and characteristics of the defendant, the

3 1 applicable sentencing range, and the need for the sentence imposed. See 18 U.S.C.

2 §§ 3553(a); 3583(e)(3). In reviewing a court’s compliance with this procedural

3 requirement, we “take a deferential approach and refrain from imposing any

4 rigorous requirement of specific articulation by the sentencing judge.” United States

5 v. Fleming,

(2d Cir. 2005). Therefore, absent evidence to the contrary,

6 we will not assume that the court failed to take into account the relevant statutory

7 considerations simply because the sentencing judge did not explicitly cite § 3553(a)

8 or list each of its factors. See Verkhoglyad,

(citing United States v.

9 Fernandez,

(2d Cir. 2006)).

10 The transcript of Diggins’s sentencing shows that the court was well aware

11 of the nature of Diggins’s violations, Diggins’s history in the criminal justice system,

12 the applicable sentencing range, and the need for the sentence imposed. During

13 Diggins’s allocution, held immediately prior to sentencing, the court described the

14 nature of Diggins’s violations and, during sentencing, referred to Diggins’s

15 violations as “very serious.” Diggins, Diggins’s counsel, and the government

16 presented the court with details of Diggins’s time on supervised release and his

17 circumstances at home, and Diggins’s counsel admitted that the court was “quite

18 familiar” with Diggins’s history. In addition, the court explicitly based its sentence

4 1 on the “very long time” Diggins had spent in the criminal justice system. Further,

2 both Diggins’s counsel and the government referenced the applicable sentencing

3 range to the court, and the court explicitly referred to the history and characteristics

4 of the defendant and the need to afford adequate deterrence in sentencing Diggins.

5 Thus, the record refutes Diggins’s claim that the court failed to consider properly the

6 relevant § 3553(a) factors. We cannot conclude that the district court erred, much

7 less plainly erred, in its consideration of these factors.

8 “In reviewing for substantive reasonableness, we consider the totality of the

9 circumstances, and reverse only in exceptional cases where the trial court’s decision

10 cannot be located within the range of permissible decisions[.]” United States v.

F.3d 178, 181 (2d Cir. 2012) (internal quotation marks and citations

12 omitted). Diggins’s sentence does not present such a case. See United States v.

13 Lifshitz,

(2d Cir. 2013) (per curiam) (affirming two‐year sentence

14 following defendant’s multiple violations of supervised release); Fleming,

(same). The court considered the relevant § 3553(a) factors in sentencing

16 Diggins — including his repeated violations of the conditions of his release — which

17 supported the sentence imposed. The district court noted that Diggins had proven

18 himself “not to be amenable to supervised release,” given his history of serious

5 1 violations, and without the “right punishment,” Diggins was unlikely to appreciate

2 the gravity of his failure to “start over.” Indeed, despite receiving a below‐

3 Guidelines sentence for his first violation of supervised release — assaulting his

4 child’s mother in the presence of their child — Diggins continued flagrantly to

5 violate the conditions of his release. As such, we have little difficulty concluding

6 that Diggins’s Guidelines sentence does not “shock[] the conscience” so as to be

7 deemed substantively unreasonable. See United States v. Rigas,

(2d

8 Cir. 2009) (internal quotation marks omitted); see also

(granting

9 district courts discretion to impose consecutive sentences).

10 II. Eighth Amendment

11 We review de novo whether a sentence violates the Eighth Amendment. See

12 United States v. Varrone,

(2d Cir. 2009). “The Eighth Amendment

13 forbids only extreme sentences that are grossly disproportionate to the crime[.]”

14 United States v. Yousef,

(2d Cir. 2003) (internal quotation marks

15 omitted). “[O]utside the context of capital punishment, successful challenges to the

16 proportionality of particular sentences have been exceedingly rare.” Ewing v.

17 California,

(2003) (internal quotation marks omitted). In weighing an

18 Eighth Amendment challenge to a term of imprisonment, we must first “compar[e]

6 1 the gravity of the offense and the severity of the sentence.” Graham v. Florida, 560

, 60 (2010). In the “rare case in which this threshold comparison leads to an

3 inference of gross disproportionality,” we must then “compare the defendant’s

4 sentence with the sentences received by other offenders in the same jurisdiction and

5 with the sentences imposed for the same crime in other jurisdictions. If this

6 comparative analysis validates an initial judgment that the sentence is grossly

7 disproportionate, the sentence is cruel and unusual.”

(internal quotations marks,

8 citation, and alterations omitted).

9 Diggins “submits” without argument that his is a sentence warranting “full

10 review.” That is not the case. Diggins’s sentence falls below the statutory maximum

11 and within the policy statement range issued by the United States Sentencing

12 Commission. See United States v. Caracappa,

(2d Cir. 2010) (“[I]n a

13 noncapital case, it is exceedingly rare to uphold a claim that a sentence within the

14 statutory limits is disproportionately severe.” (internal quotation marks omitted)).

15 Moreover, Diggins points to no rationale supporting a finding that his sentence is

16 “grossly disproportionate” to the gravity of his infractions. Thus, for much the same

17 reasons we rejected his reasonableness challenge, we deem Diggins’s sentence to be

18 constitutionally sound.

7 1 III. Conclusion

2 We have considered Diggins’s remaining arguments and find them to be

3 without merit. Accordingly, we AFFIRM the judgment of the district court. 4 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9 10 11

8