15‐1446‐cr United States v. Pass

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 15th day of April, two thousand sixteen.

PRESENT: AMALYA L. KEARSE, JOSÉ A. CABRANES, DENNY CHIN, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 15‐1446‐cr

JAMES PASS, Defendant‐Appellant.

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FOR APPELLEE: MELODY L. WELLS, Susan Corkery, Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: SUSAN G. KELLMAN, Law Offices of Susan G. Kellman, Brooklyn, New York.

Appeal from the United States District Court for the Eastern District of

New York (Kuntz, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

On October 3, 2014, defendant‐appellant James Pass pleaded guilty to

possession of a firearm after having been convicted of a felony, in violation of

(g) and 924(a)(2). He appeals from a judgment of conviction entered April 30,

2015, sentencing him principally to 71 monthsʹ imprisonment, followed by three yearsʹ

supervised release with special conditions, including a curfew during the first six

months.

Pass makes three principal arguments on appeal: (1) the district court

committed procedural errors at sentencing; (2) the district court erroneously permitted

Pass to represent himself at sentencing; and (3) the district court abused its discretion in

refusing to adjourn the sentencing. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

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1. Procedural Reasonableness

Pass argues that the district court committed procedural error at his

sentencing principally by failing to calculate the Sentencing Guidelines range, rule on

objections to the presentencing report (the ʺPSRʺ), consider the factors set forth in

(a), and adequately explain the chosen sentence, including the special

condition of a curfew for six months of the term of supervised release. Because Pass did

not object to those purported errors below, we review the district courtʹs rulings for

plain error. See United States v. Wagner‐Dano,

, 89‐90 (2d Cir. 2012). To

establish plain error, the appellant must demonstrate that ʺ(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,

integrity, or public reputation of judicial proceedings.ʺ

at 94 (quoting United States v.

Marcus,

, 262 (2010)).

While it would have been preferable for the district court to have

provided a fuller discussion of some of the issues raised at sentencing, see United States

v. Molina,

(2d Cir. 2004) (district court must explain its sentence ʺ(1) to

inform the defendant of the reasons for his sentence, (2) to permit meaningful appellate

review, (3) to enable the public to learn why defendant received a particular sentence,

and (4) to guide probation officers and prison officials in developing a program to meet

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defendantʹs needsʺ), we are satisfied that the district court ʺconsidered the partiesʹ

argumentsʺ and had a ʺreasoned basisʺ for imposing the sentence it did, Rita v. United

States,

(2007). To the extent there was error, the error was not plain.

The court accepted the Probation Officeʹs calculation of a Guidelines range

of 57 to 71 months, based on an adjusted offense level of 18 and a criminal history

category of VI. The district court also explicitly discussed Passʹs objections to the PSR

and effectively overruled them by expressly accepting the findings of the PSR. While it

would have been preferable for the district court to have explicitly adopted a

Guidelines calculation and ruled on any objections, ʺ[a] sentencing court satisfies its

obligation to clearly resolve disputed sentencing issues if it indicates, either at the

sentencing hearing or in the written judgment, that it is adopting the recommendations

of the probation officer in the PSR.ʺ United States v. Martin,

(2d Cir. 1998)

(internal quotation marks omitted).

The record also demonstrates that the district court considered the

relevant factors under

(a). ʺ[T]he law does not impose ʹany rigorous

requirement of specific articulationʹ on sentencing judges with respect to their

consideration of § 3553(a) factors.ʺ United States v. Verkhoglyad,

(2d Cir.

2008) (quoting United States v. Crosby,

(2d Cir. 2005)). ʺ[W]e will not

assume a failure of consideration simply because a district court fails to enumerate or

discuss each § 3553(a) factor individually.ʺ Id. The record is clear that the district court

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based its sentence in part on Passʹs extensive and violent criminal history, including

prior convictions for illegal gun possession and attempted robbery. Finally, although

the district court did not give specific reasons for imposing a curfew as a special

condition of supervised release, and again it would have been preferable for it to have

done so, its reasons were evident from the record. The findings of the PSR, which the

court adopted, showed that Pass had an extensive criminal history that included

nighttime criminal activity and arrests, and that Pass had failed to comply with a

curfew in the past. The record therefore justified the special condition. See United States

v. Balon,

, 41 n.1 (2d Cir. 2004) (concluding that, even if the district court

failed to expressly articulate reasons for special conditions of supervised release, any

error is harmless because the reasons were ʺself‐evident in the recordʺ).1

2. Passʹs Representation at Sentencing

Passʹs argument that he was erroneously permitted to proceed pro se at his

sentencing proceeding is belied by the record. In fact, three attorneys for Pass were

present at sentencing. Although Pass had asserted his right to proceed pro se at an

earlier stage in the case, he later changed his mind, submitting a letter to the court, filed

1 Even if Passʹs challenge to the curfew was not, as the parties have agreed, governed by plain error review, see, e.g., United States v. Simmons,

(2d Cir. 2003) (concluding that, although a special condition of supervised release was not objected to at sentencing, strict plain error review was not warranted because the condition was not recommended in the PSR and the defendant had no prior knowledge it would be imposed), the purported error was harmless, and therefore still would not warrant vacatur. See Balon,

n.1.

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May 27, 2014, stating, ʺIʹve decided not to proceed Pro se, and [to] let Ms. Brady

represent me.ʺ App. at 59. Although he thereafter threatened to renew his request to

proceed pro se, he never actually did so, as he continued to consider the issue for

months. ʺ[E]ven after the right to proceed pro se has been clearly and unequivocally

asserted, the right may be waived through conduct indicating that one is vacillating on

the issue or has abandoned oneʹs request altogether.ʺ United States v. Barnes,

(2d Cir. 2012) (internal quotation marks omitted). Moreover, the district court

expressly denied Attorney Bradyʹs application to withdraw as counsel prior to the

sentencing and again at sentencing. Hence, the record is clear that Pass was

represented by counsel at sentencing.

3. The Denial of an Adjournment

Finally, Pass argues that the district court abused its discretion in denying

an adjournment of the sentencing. ʺ[W]e review the district courtʹs decision not to grant

a continuance for time to prepare for an abuse of discretion. The sole requirement of

such a denial is that it be reasonable under the circumstances.ʺ United States v. Hurtado,

(2d Cir. 1995) (citation omitted).

We note initially that, in our view, Passʹs request for an adjournment was

not unreasonable. There was a lack of clarity as to the role of Attorney Kellman, as the

district court had appointed her to represent Pass and refused to grant Attorney Bradyʹs

request to be relieved. Moreover, Kellman had not been able to meet with Pass (in part

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because he had refused to meet with her when she went to the prison to see him). And

Pass claimed at sentencing that he had not been able to review the PSR with his

attorneys.2

In light of these circumstances, it would have been advisable for the

district court to have allowed a brief adjournment or even a short recess for counsel to

consult with Pass about these matters. Nonetheless, we conclude that the district court

did not abuse its discretion. The district court was understandably disinclined to

permit any further delays, as the case had been pending for more than a year and there

had been ten conferences or hearings in the case. On at least two occasions, Pass

refused to appear for court. Pass also equivocated for months on whether he wanted to

proceed pro se and requested numerous continuances to consider the decision. Then, as

sentencing approached, Pass refused to meet with his counsel. The district court had

latitude to address these difficulties, and under the circumstances, the district court did

not abuse its discretion in refusing to grant a last‐minute request for an adjournment.

2 Federal Rule of Criminal Procedure 32(i)(1)(A) requires that, ʺ[a]t sentencing, the court . . . must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.ʺ Fed. R. Crim. P. 32(i)(1)(A). Pass had stated in a letter to the district court, however, that he had ʺseveral objections [to the PSR], which [he] discussed with [his] attorney.ʺ Govʹt App. at 90.

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We have considered all of Passʹs additional arguments and find them to be

without merit. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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