14‐499‐cr United States of America v. Coolbaugh

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of August, two thousand fourteen.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. ______________________

UNITED STATES OF AMERICA,

Appellee,

‐v.‐ No. 14‐499‐cr

KEVIN COOLBAUGH,

Defendant‐Appellant. ______________________

1 FOR APPELLANT: BRENDAN WHITE, White & White, New York, NY.

FOR APPELLEES: BRENDA K. SANNES, Assistant United States Attorney (Miroslav Lovric, on the brief) for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY.

Appeal from the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED.

Kevin Coolbaugh appeals from a fourteen‐month sentence imposed in the

United States District Court for the Northern District of New York (Thomas J.

McAvoy, Judge) for violating the conditions of his supervised release. We

assume the parties’ familiarity with the underlying facts, procedural history, and

issues for review.

We review a sentence for violation of supervised release using the same

standard as for sentences generally: “whether the sentence imposed is

reasonable.” United States v. McNeil,

(2d Cir. 2005). “[W]e will

not substitute our own judgment for the district court’s on the question of what

is sufficient to meet the § 3553(a) considerations in any particular case.” United

States v. Cavera,

(2d Cir. 2008) (en banc).

2 Coolbaugh argues that his within guidelines sentence was procedurally

unreasonable because the district court did not adequately explain why it

imposed the sentence and “gave no reason to be confident that it considered the

(a) factors.”1 The district court properly explained the rationale

for its sentence. The colloquy was “sufficient to inform the defendant and public

of the reasons for the particular sentence and to permit our review for

reasonableness.” Verkhoglyad, 516 F.3d at 133 (internal quotation marks omitted).

Coolbaugh contends that his sentence was substantively unreasonable

because “incarceration without treatment” was “unwarranted” and

“counterproductive” and that his sentence would unreasonably delay his entry

into drug treatment. This argument is unpersuasive. Coolbaugh had a dismal

record of drug use and failing to follow through with drug treatment and

repeatedly violated the conditions of his supervised release. The district court

acted within its broad discretion when it concluded that a period of incarceration

was warranted.

Finally, Coolbaugh asserts that he was deprived of his right to effective

assistance of counsel when his attorney failed to raise Coolbaugh’s “positive

1 Coolbaugh did not move in the district court to challenge his sentence’s procedural reasonableness; this argument is raised for the first time on appeal and is reviewed for plain error. United States v. Verkhoglyad,

, 127–28 (2d Cir. 2008).

3 attributes” or his “employment record.” We disagree. We need not decide

whether Coolbaugh can raise an ineffective assistance of counsel claim for a

supervised release violation sentencing proceeding, an open question in this

circuit, as the representation he received was not deficient and there is no

reasonable probability that any different advocacy would have led to a different

result. See Strickland v. Washington,

(1984).

We have considered Coolbaugh’s remaining arguments and find them to

be without merit. For the reasons stated above, the judgment of the district court

is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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