20-845-cr United States v. Baptist

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 15th day of March, two thousand twenty-one.

PRESENT: PIERRE N. LEVAL, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges.

United States of America,

Appellee,

v. 20-845-cr

Conrad Baptist, AKA Sealed Defendant 1,

Defendant-Appellant.

FOR DEFENDANT-APPELLANT: EUNICE C. LEE (Ariadne M. Ellsworth, Law Clerk, on the brief), for Federal Defenders of New York, Inc., New York, NY.

FOR APPELLEE: JARROD L. SCHAEFFER, Assistant United States Attorney (Danielle R. Sassoon, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New

York (Cote, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Conrad Baptist appeals from a judgment of conviction entered on

March 5, 2020 by the United States District Court for the Southern District of New York (Cote, J.),

following his guilty plea for unlawful possession of a firearm in violation of

(g)(1).

The district court sentenced Baptist to an above-Guidelines term of 60 months’ imprisonment to be

served consecutively to any term imposed on his state parole violation, followed by three years’

supervised release. On appeal, Baptist argues that his sentence was procedurally unreasonable on

three grounds: (1) the district court improperly relied on his prior November 2018 arrest for drug

charges that were ultimately dismissed; (2) the district court erred in its reference to the revocation

of his parole status; and (3) the district court failed to adequately explain its reasons for its upward

variance both in open court and in its written Statement of Reasons. Baptist also asserts that the

sentence was substantively unreasonable.

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

on appeal, to which we refer only as necessary to explain our decision to affirm.

I. Procedural Reasonableness

Where, as here, a defendant has failed to raise a procedural objection at sentencing, we

review for plain error. United States v. Caltabiano,

(2d Cir. 2017). Plain error

exists “only where the appellant demonstrates that (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 affect[s] the fairness, integrity or public reputation of judicial

2 proceedings.’” United States v. Marcus,

(2010) (alteration in original) (quoting

Puckett v. United States,

(2009)).

We have found procedural error where “the district court miscalculates the Guidelines;

treats them as mandatory; does not adequately explain the sentence imposed; does not properly

consider the [18 U.S.C.] § 3553(a) factors; bases its sentence on clearly erroneous facts; or deviates

from the Guidelines without explanation.” United States v. Cossey,

(2d Cir. 2011)

(citing Gall v. United States,

(2007)).

A. Baptist’s Prior November 2018 Arrest

Baptist contends that the district court improperly relied on his prior November 2018 arrest

for allegedly selling drugs as a basis for its upward variance, even though the charges were

ultimately dismissed. We disagree.

Although Baptist argues that the district court assumed he was guilty of the underlying

conduct that was the subject of the arrest and considered that conduct in arriving at the sentence,

the record plainly contradicts that assertion. In fact, the district court explicitly stated on three

separate occasions that it knew nothing about the underlying facts surrounding the prior arrest and,

therefore, would not consider such alleged conduct. See App’x at 60 (“I’m not finding that he was

engaged in drug dealing on that occasion . . . .”); see also

(explaining, after defense counsel

asked the court not to consider the alleged underlying conduct surrounding the prior arrest, “I tried

to convey that. I’m not making a finding he was actually guilty of the crime of selling drugs or

possessing drugs with the intent to sell them. I have no idea about what the underlying facts were,

and there was no conviction.”);

at 66–67 (emphasizing, after Baptist mentioned the arrest, “I

want to assure you, Mr. Baptist, I’m not finding you were dealing drugs. That’s not the issue. It’s

all about the gun.”). Therefore, this situation is clearly distinguishable from the case Baptist relied

upon, United States v. Juwa, where the district court had relied on underlying conduct leading to

3 the defendants’ arrest in a pending state case to justify a sentence variance. See

, 700–

01 (2d Cir. 2007) (finding procedural error where the district court may have imposed defendant’s

sentence “in reliance on the assumption that [defendant] had sexually abused a minor on more than

one occasion” without “independent substantiation” of previous, still-pending charges contained in

a state indictment).

Moreover, Baptist contends that the district court’s multiple references to the arrest suggest

that it was improperly focused on the prior arrest conduct, notwithstanding the unequivocal

statements by the district court to the contrary. Baptist’s argument regarding these multiple

references, however, overlooks the fact that, other than mentioning the arrest in an opening

summary of the case at the sentencing, the district court addressed the arrest (as noted above) only

in response to separate statements about the arrest by defense counsel and Baptist himself, for the

specific purpose of assuring them that the alleged underlying conduct surrounding the prior arrest

was not being relied upon in arriving at the sentence. Indeed, the district court made clear that the

fact of the prior arrest itself, which was undisputed, could only be considered, if at all, for a very

limited purpose—namely, that Baptist “had a direct interaction with law enforcement after leaving

prison,” prior to the instant offense, which “should have brought . . . to the forefront of [Baptist’s]

mind[] how he must walk around in open society now” and not carry a loaded firearm. App’x at

64.

In any event, the district court did not mention the November 2018 arrest at all in

articulating its reasons for the sentence in open court, nor did it reference the arrest in its written

Statement of Reasons. Therefore, we conclude that the district court mentioned the prior arrest

“more for the sake of providing a complete background history,” before moving on to

considerations “of more material import.” United States v. Golomb,

, 790–91 (2d Cir.

4 1987). Accordingly, we discern no plain error relating to the district court’s reference to the

November 2018 arrest.

B. The District Court’s Reference to Baptist’s “Parole Revocation Status”

Baptist also argues that the district court based its sentence on a clearly erroneous fact when

it referenced Baptist’s “parole revocation status.” App’x at 60. Although conceding that he was

on parole when he possessed the loaded firearm, Baptist asserts that the district court erred in its

reference to revocation, because there was no pending revocation proceeding at the time of the

instant offense.

There is absolutely no indication in the record that the issue of whether Baptist’s parole

status was in revocation at the time of the offense played any role whatsoever in the district court’s

determination as to the appropriate sentence. To be sure, in arriving at its sentence, the district

court found it significant that the instant firearms offense was committed the year after Baptist was

released from state custody on parole, and specifically noted that fact in its written Statement of

Reasons. See Statement of Reasons at 4 (“The defendant was arrested in the instant offense on July

12, 2019 with a loaded firearm following his release on parole in 2018 from state custody after

serving a lengthy sentence for robbery and burglary charges.”). However, there is no reason to

conclude that—apart from the articulated material fact that Baptist committed the instant offense

while still on parole—the district court gave any additional significance to his parole status. 1

Indeed, other than a passing reference to “parole revocation status” in a preliminary overview of

the case at the beginning of the sentencing proceeding, the district court never mentioned the

1 Baptist asserts, without any basis, that the district court may have incorrectly believed revocation proceedings were pending at the time of the instant offense because of the prior November 2018 arrest on alleged drug charges. Putting aside the entirely speculative nature of that assertion, given that it gave no consideration to the alleged underlying conduct related to that arrest, it is reasonable to infer that the district court would have also found it equally immaterial that parole revocation proceedings had been instituted based upon that alleged conduct.

5 revocation issue again at any point in the proceeding, nor was it mentioned in its written Statement

of Reasons. Accordingly, nothing in the record would support a finding that the cursory and

unobjected-to reference to “revocation status” at the beginning of the sentencing could have

affected Baptist’s “substantial rights” or “seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings,” Marcus,

(quoting Puckett,

),

and the reference thus provides no basis to disturb the sentence under plain error review.

C. The District Court’s Open Court and Written Reasons for the Variance

Baptist further contends that the district court procedurally erred because it failed to provide

sufficient reasons for its upward variance both orally and in writing. Where, as here, a judge

imposes a sentence that is outside the Guidelines range, a district court must state “the specific

reason[s] for the imposition of a [non-Guidelines] sentence” both in open court and in a written

statement of reasons.

(c)(2). This Court does not require “robotic incantations”

or “a precise mode or manner in which [a district court] must explain the sentence [it] impose[s].”

United States v. Rosa,

(2d Cir. 2020) (internal quotation marks omitted).

Nevertheless, we have explained that “the imposition of an above-Guidelines sentence triggers a

‘higher descriptive obligation’” than that of within-Guidelines sentences. United States v. Aldeen,

(2d Cir. 2015) (quoting United States v. Cassesse,

(2d Cir.

2012)), superseded by statute on other grounds as recognized in United States v. Smith,

(2d Cir. 2020). As set forth below, the district court’s in-court reasons for its upward

variance to 60 months’ imprisonment, as well as the explanation contained in the written Statement

of Reasons, were sufficient.

With respect to the district court’s open-court explanation, Baptist concedes that the district

court relied upon various Section 3553(a) factors in its justification for an upward variance.

However, Baptist contends that the district court’s reliance on these factors was “superficial[]” and

6 did not meet the heightened descriptive explanation required for its above-Guidelines sentence.

Appellant’s Reply Br. at 12. We find this argument unpersuasive. Even when a “higher descriptive

obligation” is triggered, this Court has held that the requirements of Section 3553(c)(2) have “likely

been satisfied when a court’s statements meet the goals ‘of (1) informing the defendant of the

reasons for his sentence, (2) permitting meaningful appellate review, (3) enabling the public to

learn why the defendant received a particular sentence, and (4) guiding probation officers and

prison officials in developing a program to meet the defendant’s needs.’” Cassesse, 685 F.3d at

192–93 (quoting United States v. Villafuerte,

(2d Cir. 2007)).

Here, the district court explicitly acknowledged that it was imposing an above-Guidelines

sentence “in consideration of a variety of 3553(a) sentencing factors.” App’x at 59. The court then

touched upon multiple Section 3553(a) factors that it found warranted an above-Guidelines

sentence, including the seriousness of the offense, the risk of recidivism in light of Baptist’s prior

criminal history, public safety concerns, and the need for deterrence. For example, the district court

emphasized that the firearms offense was “extraordinarily serious,” id. at 60, and that it was unclear

“why [Baptist] would have thought it was appropriate to walk around the streets of New York with

a weapon,” id. at 67. The district court also noted, referencing the Presentence Report, that Baptist

had “prior convictions [involving the] use of weapons.” Id. Moreover, as to his danger to the public,

the district court explained that “[a] loaded gun on the streets of New York is a dangerous, dangerous

weapon” and that Baptist was “fortunate that [he] did not use it.” Id. at 68. With respect to

deterrence, the district court stated that Baptist “need[ed] to give [his conduct] more serious thought”

and “need[ed] to know that [he] should never possess a weapon again.” Id.

In addition to individually addressing a number of the Section 3553(a) factors supporting

the sentence, the district court also specifically explained why the above-Guidelines sentence of 60

months’ imprisonment was necessary: “I understand that this [sentence] is above the Guidelines

7 range of 30 to 37 months, but I think [the] issues of recidivism here and public safety are

paramount.” Id. at 67. The district court expanded on this point by emphasizing that such a sentence

was warranted because Baptist engaged in this dangerous conduct even though he had come from a

“good family, law-abiding family,” and also “had plenty of time in state custody to think about what

path [he] would take when [he] left prison in 2018.” 2 Id. To the extent Baptist argues that the

district court should have addressed even further why some other particular sentence was not chosen,

this Court has “never required a district court . . . to expressly compare various numbers” in that

manner. Rosa,

. Insofar as the district court was required to meet a “higher

descriptive obligation” than a “simple fact-specific statement,” it met that burden here, and certainly

did not commit plain error in that regard.

We reach the same conclusion regarding the written Statement of Reasons. The Statement

of Reasons explained that “[a] variance to 60 months is necessary to protect society and provide

deterrence.” Statement of Reasons at 4. In support of those Section 3553(a) factors, the district

court pointed, as noted above, to the fact that the defendant was arrested with the loaded firearm

after being released on parole following a lengthy sentence for robbery and burglary charges.

Although the written explanation was brief, it contained specific reasons for the sentence, utilizing

Section 3553(a) factors and then tying those factors to the defendant being sentenced. We conclude

2 The district court’s open-court justification is further strengthened by its explicit adoption on-record of Baptist’s Presentence Report (“PSR”). See Rosa,

(citing United States v. Molina,

(2d Cir. 2004)). In explaining its sentence, the district court emphasized that, “as set out in the presentence report, the prior convictions here involve [the] use of weapons,” App’x at 67, and noted that “[Baptist] essentially spent most of [his] adult life already in prison,” id. at 68. The PSR recounted, inter alia, the following prior convictions: (1) a 1991 conviction for attempted criminal possession of a loaded firearm in the Bronx, for which Baptist received a sentence of 18 months to 3 years’ imprisonment; (2) a 1990 attempted robbery conviction in the Bronx involving a robbery of a commercial establishment, for which Baptist received a sentence of 2 to 4 years’ imprisonment; and (3) a 1993 conviction for robbery and burglary, for which Baptist served over 25 years’ imprisonment before being paroled in 2018. The PSR further documented the numerous disciplinary sanctions Baptist had sustained while serving his prior 25- year term of incarceration. None of these events, save for the 1993 conviction, was taken into account in calculating his criminal history score.

8 that, under the particular circumstances of this case, the articulated grounds in the Statement of

Reasons were sufficient to satisfy Section 3553(c)(2). See United States v. Cavera,

(2d Cir. 2008) (en banc) (“[A] brief statement of reasons will generally suffice where the parties

have addressed only straightforward, conceptually simple arguments to the sentencing judge.”

(internal quotation marks omitted)); see also Juwa,

(holding the district court’s

recitation of Section 3553(a) factors in its Statement of Reasons was “not objectionable,” despite

this Court’s “preference that the reasons be tied to the facts of the case”).

In sum, there was no procedural error in the district court’s articulation of its verbal and

written reasons for its above-Guidelines sentence.

II. Substantive Reasonableness

With respect to Baptist’s challenge to the substantive reasonableness of the sentence, he

argues that the district court abused its discretion because an above-Guidelines, 60-month sentence

of imprisonment is shockingly high and more than necessary to achieve the goals of sentencing in

this case. We disagree.

We do not apply a heightened standard of review to a sentence merely because it is outside

the advisory Guidelines range; instead, we apply the deferential abuse-of-discretion standard to

challenges to the substantive reasonableness of a sentence. 3 Gall,

. Therefore, this

Court will hold that a sentence is substantively unreasonable only when it is “so ‘shockingly high,

shockingly low, or otherwise unsupportable as a matter of law’ that allowing [it] to stand would

‘damage the administration of justice.’” United States v. Broxmeyer,

(2d Cir.

2012) (quoting United States v. Rigas,

(2d Cir. 2009)). As a result, we will “set

3 We have not yet “decided whether plain error review applies to an unpreserved challenge to the substantive reasonableness of a sentence,” United States v. Thavaraja,

, 258 n.4 (2d Cir. 2014), and we do not do so here because Baptist’s substantive reasonableness challenge fails even under the abuse-of- discretion standard.

9 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.” Rigas,

(emphasis and internal quotation marks omitted).

As noted above, prior to his commission of the instant firearms offense, Baptist’s criminal

history included separate convictions for attempted robbery, attempted criminal possession of a

weapon, burglary, and robbery. Most notably, in 1993, Baptist was convicted of three counts each

of first-degree burglary and first-degree robbery, for which he served a 25-year term of

imprisonment. That conviction involved the robbery of three victims at gunpoint in an apartment

building in Manhattan, during which Baptist bound the hands and feet of two of the victims. Baptist

was released from his 25-year term of imprisonment in May of 2018 and, just fourteen months later

and while still on parole, Baptist was arrested in possession of a loaded semiautomatic pistol on the

streets of New York City.

Given Baptist’s violent criminal history involving the use of firearms and the nature of the

instant firearms offense, we cannot conclude that the district court’s above-Guidelines sentence is

“shockingly high,” Broxmeyer,

, even in the context of the mitigating factors

asserted by Baptist. Although Baptist suggests that his sentence should have been treated as an

“average case” and that his 60-month sentence is an “unexplained outlier” among other sentences

for similar offenses, Appellant’s Br. at 47, that contention is undermined by the especially serious

and violent nature of his criminal history, combined with his commission of this firearms offense

relatively soon after his release from prison and while still on parole, which cumulatively raise

heightened and compelling concerns regarding recidivism and the safety of the community that are

not present in the “average [felon-in-possession] case.” Moreover, the 60-month sentence is

comparable to, or lower than, sentences in other felon-in-possession cases in this Circuit that have

been upheld as substantively reasonable. See, e.g., United States v. Stokes,

, 16–

10 17 (2d Cir. 2020) (affirming an above-Guidelines sentence of 60 months’ imprisonment for a felon-

in-possession offense); United States v. Brown,

, 775–76 (2d Cir. 2017) (affirming

an above-Guidelines sentence of 92 months’ imprisonment for a felon-in-possession offense);

United States v. Adams,

, 634–35 (2d Cir. 2010) (affirming a 63-month sentence

for a felon-in-possession offense, which was twice the applicable Guidelines range, due to

defendant’s additional criminal conduct and lack of rehabilitation). Thus, this is not the

“exceptional case[] where the trial court’s decision cannot be located within the range of

permissible decisions,” Rigas,

(internal quotation marks omitted), and we conclude

that the sentence was substantively reasonable.

* * *

We have considered all of Baptist’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 of Court

11