18-3041 United States v. Flower

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.

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 20th day of November, two thousand nineteen.

Present: PIERRE N. LEVAL, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 18-3041-cr

SHERRY L. FLOWER,

Defendant-Appellant. _____________________________________

For Appellee: Joseph R. Perella, Gregory L. Waples, Assistant United States Attorneys, for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, VT

For Defendant-Appellant: Jonathan I. Edelstein, Edelstein & Grossman, New York, NY

Appeal from a judgment of the United States District Court for the District of Vermont

(Crawford, C.J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Sherry Flower (“Flower”) appeals from her October 12, 2018

sentence of eighteen months’ incarceration, imposed in the United States District Court for the

District of Vermont (Crawford, C.J.) for multiple violations of the terms of her supervised release

in connection with a prior felony. The district court found by a preponderance of the evidence that

Flower had, inter alia, burglarized a Subway restaurant during her term of supervised release. We

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

the issues on appeal.

* * *

Flower argues that her sentence was substantively unreasonable, largely because it will

result in the suspension of her Social Security disability benefits and require her to reapply to the

program before those benefits resume. But Flower’s sentence was not substantively unreasonable

under the applicable standard. “The standard of review on the appeal of a sentence for violation of

supervised release is . . . the same standard as for sentencing generally: whether the sentence

imposed is reasonable.” United States v. Johnson,

(2d Cir. 2015) (internal

quotation marks omitted). In making this determination, we review all issues of law de novo.

We review the sentence itself for abuse of discretion, “tak[ing] into account the totality of the

circumstances . . . .” Gall v. United States,

(2007). We “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) (internal quotation marks omitted).

2 Pursuant to the Supreme Court’s decision in Gall, district courts first calculate the

applicable sentencing range under the United States Sentencing Guidelines (the “Guidelines”) and

then, after giving the parties the opportunity to argue for the sentences they believe are appropriate,

consider each of the factors set out in

(a) “to determine whether they support the

sentence requested by a party.” Gall, 552 U.S. at 49–50. The weight of each factor in sentencing

is “firmly committed to the discretion of the sentencing judge.” United States v. Verkhoglyad,

(2d Cir. 2008). If the court decides that an outside-Guidelines sentence is warranted,

it must “consider the extent of the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.” Gall,

.

Under this liberal standard, we cannot find that the district court abused its discretion in

this case. The United States Probation Office (the “Probation Office”) alerted the district court to

three violations of supervised release: Flower’s continued use of illegal drugs, her failure to alert

the Probation Office of her change in residence, and her burglary of a Subway restaurant in

Rutland, Vermont. Based in part on Flower’s admission and in part on findings after a hearing, the

court sustained all three charges. After weighing the various § 3553(a) factors, the district court

expressed concern over Flower’s consistent recidivistic behavior as well as an interest in

“avoid[ing] unwarranted sentence disparities among similarly situated defendants,” A. 224, but

still issued a sentence below the Guidelines range in recognition of Flower’s history of mental

illness and prior cooperation with the government. Cf. United States v. Jones,

(2d Cir. 2008) (“[W]here the sentencing judge and Sentencing Commission both determine that

the Guidelines sentence is an appropriate sentence for the case at hand, that sentence likely reflects

the § 3553(a) factors.” (internal quotation marks and alterations omitted)).

3 Although Flower will have to reapply for Social Security disability benefits upon her

release, this does not render her already below-Guidelines sentence substantively unreasonable.

The district court properly considered applicable sentencing factors, including the criminal

“history . . . of the defendant” and the need “to protect the public from further crimes,” each of

which supports the sentence issued here.

. The record demonstrates that the

district court understood the applicable sentencing range and statutory requirements, and there is

no basis to find that its “decision cannot be located within the range of permissible decisions.”

Cavera,

(internal quotation marks omitted).

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

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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