17-3295-cr United States v. Joshua Michael Furbeck

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 30th day of January, two thousand nineteen.

PRESENT: PETER W. HALL, SUSAN L. CARNEY, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. No. 17-3295

Joshua Michael Furbeck,

Defendant-Appellant. _____________________________________

For Appellant: Melissa A. Tuohey, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, New York

For Appellee: Miroslav Lovric, Rajit S. Dosanjh, Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, New York Appeal from a judgment of the United States District Court for the Northern District of

New York (Sannes, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Joshua Michael Furbeck was convicted by guilty plea of one count

of threatening to murder a federal law enforcement officer with intent to retaliate against the officer

in the performance of his official duties, in violation of

(a)(1)(B), and one count

of threatening to murder an immediate family member of a federal law enforcement officer with

intent to retaliate against the officer in the performance of his official duties, in violation of

(a)(1)(A). Furbeck challenges his within-Guidelines 42-month sentence as

procedurally and substantively unreasonable. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

First, Furbeck contends that the district court committed procedural error by refusing to

grant a downward departure based on Furbeck’s (1) unusual mental and emotional conditions and

(2) “significantly reduced mental capacity” which “contributed substantially to the commission of

the offense,” pursuant to U.S.S.G. §§ 5H1.3 and 5K2.13, respectively. “Claims that the district

court erred in refusing to depart are not cognizable on appeal in the absence of substantial

indication that the district judge believed she lacked authority to depart or an indication that a

violation of the law occurred.” United States v. Jackson,

, 153–54 (2d Cir. 2011).

At sentencing, the district judge acknowledged Furbeck’s request for a departure but stated,

“I’ve carefully reviewed the PSR and the report prepared by the Federal Medical Center Devens

and I do not find that there are mental and emotional conditions warranting a downward departure

2 under 5H1.3, and I don’t find that diminished capacity departure is warranted under 5K2.13.” J.

App. 92. The district court further clarified, “I do not find there’s a significantly reduced mental

capacity within [Section 5K2.13] or that the provision should be applied here because of the

defendant’s substance abuse and his threats of violence. I therefore adopt the Guideline

calculation in the presentence report.” J. App. 93. Because the sentencing transcript confirms

that the district court understood its departure authority and instead chose not to exercise it, the

“district court’s decision not to depart from the Guidelines is . . . unreviewable.” United States

v. Robinson,

(2d Cir. 2015); see also United States v. Stinson,

(2d Cir. 2006) (per curiam) (declining to review decision not to downwardly depart where

“the District Court considered each of the defendant’s requests and, upon finding that defendant

did not qualify for either departure, denied the requests with full knowledge of its authority.”).

Second, Furbeck argues that his 42-month sentence is substantively unreasonable because

it failed to properly account for his need for mental health treatment. We must “set aside a district

court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot

be located within the range of permissible decisions.’” United States v. Cavera,

(2d Cir. 2008) (en banc) (quoting United States v. Rigas,

(2d Cir. 2007)).

Our “substantive reasonableness review is intended to ‘provide a backstop’ against sentences that

are ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law.’ . . . [It] is

not an opportunity for ‘tinkering’ with sentences we disagree with, and . . . we place ‘great trust’

in sentencing courts.” United States v. Dorvee,

(2d Cir. 2010) (quoting United

States v. Rigas,

(2d. Cir. 2009)).

3 Furbeck was sentenced to 42 months of imprisonment, at the middle of his Guidelines

range of 37 to 46 months. At sentencing the district court acknowledged Furbeck’s substance

abuse and mental health issues and noted that Furbeck’s apparent lack of interest in addressing his

substance abuse problems must be considered against the mitigating factors he had presented.

The district court recommended that Furbeck participate in both drug abuse and mental health

treatment while serving his sentence; in declining the government’s request for a higher Guidelines

sentence, it also credited Furbeck’s participation in a mental health examination he underwent

while awaiting sentencing. Because the chosen sentence is one that “can[] be located within the

range of permissible decisions,” Cavera,

, and is not “shockingly high, . . . or

otherwise unsupportable as a matter of law,” Rigas,

, we find no substantive error

in the sentence imposed.

We have considered Appellant’s remaining arguments and find them to be without merit.

We hereby AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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