18‐329‐cr United States v. Lloyd 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 30th day of April, two thousand nineteen.

PRESENT: RICHARD C. WESLEY, DENNY CHIN, Circuit Judges, LEWIS A. KAPLAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 18‐329‐cr

ANNIS RECARDO LLOYD, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: KEVIN TROWEL, Assistant United States Attorney (Lauren Howard Elbert, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the

* Judge Lewis A. Kaplan of the Southern District of New York, sitting by designation.

Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: LAWRENCE D. GERZOG, Law Offices of Lawrence D. Gerzog, New York, New York.

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

New York (Dearie, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Defendant‐appellant Annis Recardo Lloyd appeals from a January 29,

2018 judgment of the United States District Court for the Eastern District of New York

(Dearie, J.), finding him, after a hearing, in violation of the conditions of his supervised

release and sentencing him to a term of 24 monthsʹ imprisonment. On appeal, Lloyd

argues that the court abused its discretion in admitting hearsay evidence during the

revocation hearing and that his sentence was procedurally unreasonable. We assume

the partiesʹ familiarity with the underlying facts, procedural history, and issues on

appeal.

On December 30, 2016, Lloyd was arrested after an incident with his

domestic partner, Vanessa Canty, at the Starbright Family Residence (ʺStarbrightʺ). The

charges in state court were subsequently dismissed. On February 2, 2017, based on that

incident as well as other conduct, the United States Probation Department for the

Eastern District of New York (ʺProbationʺ) filed a Violation of Supervised Release

‐ 2 ‐

Report (the ʺReportʺ) with the district court charging Lloyd with violating the

conditions of his supervised release. On appeal, Lloyd challenges the admission of

evidence as to specifications one through four and six, which charged him with

violating the condition prohibiting him from committing a federal, state, or local crime.

At the revocation hearing on December 7, 2017, and January 5, 2018, the

Government presented four witnesses: Hillel Greene, Lloydʹs probation officer; Darlene

Browne, the Director of Social Services at Starbright; Department of Homeless Services

(ʺDHSʺ) Police Officer Javier Agosto; and DHS Police Officer Clover Mullings. Canty

was not called to testify because she had declined to cooperate with the state

prosecution. The witnesses testified in substance that Lloyd hit Canty on December 30,

2016, and that he had a history of abusing her. For example, Greene and Browne

testified to Cantyʹs statements after the December 30, 2016 incident that Lloyd hit her, to

other incidents in which Lloyd may have hit Canty, and to complaints by neighbors

who heard Lloyd assaulting Canty.

In addition, Agosto and Mullings ‐‐ who were at Starbright on December

30th after responding to a report of a dispute in Lloydʹs room ‐‐ testified to their

observations of Canty and Lloyd and to statements made by Canty that night. Mullings

testified that when he found Canty in the recreation room after the incident she was

scared, ʺcrying a little bit,ʺ ʺupset,ʺ and ʺangry,ʺ and ʺ[t]here w[ere] visible bruises on

her neckʺ and ʺswelling.ʺ Appʹx at 65‐66. Mullings testified that Canty said that ʺher

‐ 3 ‐

husband beat her,ʺ and ʺpunched her, [and] he tried to choke her.ʺ Appʹx at 65‐66.

Mullings testified that when Lloyd entered the recreation room, Lloyd was ʺkind of

threatening towards his wife,ʺ Appʹx at 66, and Agosto testified that as Lloyd entered

Canty started shouting ʺhe hit me, he hit me.ʺ Appʹx at 59. In addition, Agosto testified

that ʺ[Cantyʹs] shirt was kind of all over the place,ʺ and he ʺnoticed redness around the

neck[, and] what appeared to be swelling near her eyes.ʺ Appʹx at 59. Mullings

testified that, at the precinct after Lloyd was arrested, Canty told him that Lloyd ʺhit her

with his cane in the faceʺ and that he had grabbed and held her by her neck. Appʹx at

60. Browne testified that Canty had bruises on her face three days later.

At the December 7, 2017 hearing, Lloydʹs counsel objected to all of the

Governmentʹs exhibits based on Federal Rule of Criminal Procedure 32 and Federal

Rule of Evidence 803, but he did not object to any of the testimony. On January 5, 2018,

the district court found that Lloyd violated the terms of his supervised release because

it had ʺlittle doubtʺ that ʺLloyd acted inappropriately in assaulting his wifeʺ based on

the witnessesʹ ʺcredible testimony.ʺ Appʹx at 69‐70. At the January 26, 2018 sentencing

hearing, the court sentenced Lloyd to 24 monthsʹ imprisonment with no supervision to

follow. There were no objections to this sentence. Judgment was entered on January 29,

2018, and Lloyd filed a timely notice of appeal on January 31, 2018.

‐ 4 ‐

DISCUSSION

Two issues are presented on appeal: (1) whether the district court

admitted hearsay evidence in violation of Lloydʹs due process rights or

Rule 32.1(b)(2)(C); and (2) whether Lloydʹs sentence was procedurally reasonable. We

address each issue in turn.

I. Evidence at the Revocation Hearing

Lloyd argues that the district court erred by admitting testimony from law

enforcement officials, particularly the testimony that pertained to Cantyʹs out‐of‐court

statements, as well as the Governmentʹs exhibits. We disagree.

A. Applicable Law

Defendants in revocation proceedings ʺare not entitled to the full panoply

of rights that criminal defendants generally enjoy,ʺ and the Government need only

prove that a condition of supervised release was violated by a preponderance of

evidence. United States v. Carthen,

(2d Cir. 2012) (internal quotation

marks omitted). While ʺthe Confrontation Clause of the Sixth Amendment does not

apply to supervised‐release hearings,ʺ United States v. Williams,

(2d Cir.

2006), the Federal Rules of Criminal Procedure provide that a defendant is entitled to

ʺquestion any adverse witness unless the court determines that the interest of justice

does not require the witness to appear,ʺ Fed. R. Crim. P. 32.1(b)(2)(C); see Williams,

. In determining whether good cause exists, the court must balance ʺthe

‐ 5 ‐

defendantʹs interest in confronting the declarantʺ against ʺthe governmentʹs reasons for

not producing the witness and the reliability of the proffered hearsay.ʺ Williams,

. An out‐of‐court statement that falls within an exception to the hearsay rule,

however, is admissible, Carthen,

, and no good cause analysis is required,

Williams,

.

We review a courtʹs Rule 32.1(b)(2)(C) determination and its evidentiary

rulings for abuse of discretion. Carthen,

; United States v. Persico,

(2d Cir. 2011). In addition, we review arguments raised for the first time on

appeal for plain error. See United States v. Parisi,

(2d Cir. 2016) (per

curiam). To demonstrate plain error, a party must show ʺ(1) error, (2) that is plain, and

(3) that affects substantial rights.ʺ United States v. Irving,

(2d Cir. 2009)

(internal quotation marks and alterations omitted). If these requirements are met, we

ʺmay then exercise [our] discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.ʺ

(internal quotation marks and alterations omitted).

B. Application

During the revocation hearing, Lloyd only objected to the admission of the

Governmentʹs exhibits. On appeal, Lloyd appears to challenge all of the statements of

the law enforcement witnesses, specifically their testimony as to Cantyʹs out‐of‐court

statements. Because Lloyd challenges these statements for the first time on appeal, we

‐ 6 ‐

review their admission for plain error, and we review the admission of the

Governmentʹs exhibits for abuse of discretion.

Most of the out‐of‐court statements offered at the revocation hearing were

not hearsay or fit within an exception to the hearsay rule. For example, the testimony

from Greene, Browne, Agosto, and Mullings about their personal observations of Canty

‐‐ including her emotional state, her crying, the bruises on her neck, the swelling near

her eyes ‐‐ was not hearsay. In addition, Mullingsʹs and Agostoʹs testimony about

Cantyʹs statements immediately after the incident and at the precinct fit within the

excited utterance exception to the hearsay rule because the statements described a

startling event while Canty was still under the stress of the incident. See Fed. R. Evid.

803(2); United States v. Scarpa,

(2d Cir. 1990) (holding that excited

utterance need not be contemporaneous with startling event and finding statement

made five or six hours after event admissible).

To the extent the district court admitted hearsay evidence ‐‐ such as

Cantyʹs statements to Greene on January 5, 2017, Cantyʹs statements to Browne three

days after the incident, and the incident reports ‐‐ the court at least implicitly conducted

a Rule 32.1(b)(2)(C) analysis. The Government advised the court that it did not call

Canty because she had been unwilling to cooperate. Additionally, the court found the

other evidence to be credible ‐‐ particularly the officersʹ personal observations of

Cantyʹs injuries ‐‐ and concluded Lloyd contributed to Cantyʹs unwillingness to

‐ 7 ‐

cooperate because such unwillingness is ʺsort of part and parcel of th[e] unfortunate

phenomenon of spousal abuse.ʺ Appʹx at 69‐70. Furthermore, the court acknowledged

Lloydʹs interest in confronting Canty by asking the Government several times whether

she would testify and inquiring ʺabout the appropriateness of relying on hearsay

statements of the non‐testifying victim.ʺ Appʹx at 69. As we have previously

recognized, however, given that Cantyʹs ʺunwilling[ness] to cooperateʺ was attributable

to Lloyd, Appʹx at 69, his interest in confronting her is ʺentitled to little weight,ʺ

Carthen,

. Ultimately, the court found this balance weighed in the

Governmentʹs favor.

We conclude, therefore, that the court did not plainly err in admitting the

challenged testimony or abuse its discretion in admitting the Governmentʹs exhibits.

II. Procedural Reasonableness of Sentence

Lloyd argues that his sentence was procedurally unreasonable because the

district court failed to (1) calculate his guideline range; (2) weigh the

(a)

factors; and (3) state its reasons for imposing his sentence.

A. Applicable Law

A criminal sentence must be procedurally reasonable. United States v. Chu,

(2d Cir. 2013). ʺA sentence is procedurally unreasonable if the district

court fails to calculate . . . the Sentencing Guidelines range, . . . fails to consider the

§ 3553(a) factors, . . . or fails adequately to explain the chosen sentence.ʺ United States v.

‐ 8 ‐

Aldeen,

(2d Cir. 2015) (internal quotation marks omitted). Because

Lloyd did not object at sentencing to the courtʹs alleged procedural errors, we review

his challenge for plain error. See Parisi,

.

B. Application

First, Lloyd argues that his sentence is procedurally unreasonable because

the district court failed to calculate his sentencing range under the U.S. Sentencing

Guidelines Manual (ʺGuidelinesʺ). ʺWe . . . ordinarily require a sentencing judge to put

her Guidelines calculations on the record.ʺ United States v. Fernandez,

(2d

Cir. 2006), abrogated on other grounds by Rita v. United States,

(2007). The

district court did not state the Guidelines calculation on the record; we conclude,

however, that this was not plain error because the failure did not affect Lloydʹs

substantial rights. See Irving,

(holding a plain error must affect

substantial rights to warrant reversal). Probation calculated Lloydʹs Guidelines range

and included it in the Report, which also discussed and considered factors relevant to

Lloydʹs sentence. Moreover, the parties made the court aware that the Guidelines range

was above the statutory maximum, and the court imposed a sentence at the statutory

maximum. Therefore, the district courtʹs failure to put its Guidelines range calculation

on the record was not plain error.

Second, Lloyd argues that the district court erred by failing to explicitly

consider the § 3553(a) factors. We presume, however, that a sentencing judge has

‐ 9 ‐

considered these factors in the absence of record evidence suggesting otherwise. See

Fernandez,

. Here, there is no error because the record shows that the court

considered Lloydʹs history and characteristics, and Lloyd has not pointed to any

evidence suggesting the court did not consider these factors.

Lastly, Lloyd argues that the court failed to ʺstate its reasons for imposing

the particular sentence of supervised release.ʺ Appellantʹs Br. at 23 (internal quotation

marks and alteration omitted). The district court did not, however, impose a term of

supervised release. To the extent Lloyd is arguing that the court failed to explain its

reasons for the term of imprisonment, his argument also fails. As stated above, the

court explained its reasons for imposing a term of 24 monthsʹ imprisonment.

Accordingly, the district court did not commit plain error in sentencing

Lloyd to 24 monthsʹ imprisonment.

* * *

We have considered Lloydʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

‐ 10 ‐