18-169 United States v. Crum

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 12th day of April, two thousand twenty-one.

Present: DEBRA ANN LIVINGSTON, Chief Judge, RICHARD C. WESLEY, SUSAN L. CARNEY Circuit Judges, _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 18-169

RAYMOND L. CRUM,

Defendant-Appellant. _____________________________________

For Defendant-Appellant: EDWARD S. ZAS, Federal Defenders of New York, Inc., New York, N.Y.

For Appellee: TIFFANY H. LEE, Assistant United States Attorney, for James P. Kennedy, United States Attorney for the Western District of New York, Buffalo, N.Y.

1 Appeal from a judgment of the United States District Court for the Western District of New

York (Vilardo, J.).

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

DECREED that the judgment is AFFIRMED.

Raymond L. Crum appeals from a January 16, 2018, judgment of the Western District of

New York (Vilardo, J.) sentencing him to a 120-month prison term on one count of knowing

possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and two 240-month

prison terms on two counts of knowing receipt of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2)(A), all to run concurrently. Familiarity with the record is otherwise presumed.

On appeal, Crum argues that the district court, by partially basing his sentence on his need for

rehabilitation, violated the Sentencing Reform Act,

(a), as interpreted by Tapia

v. United States,

(2011). The Government responds that we may not entertain this

claim because Crum waived his right to appeal as part of his plea agreement. We assume without

deciding that Crum’s appeal waiver is unenforceable and conclude that the district court did not

commit plain Tapia error in fashioning its sentence. Accordingly, we affirm.

Crum did not raise his objection below, so we review for plain error only. United States

v. Stevenson,

(2d Cir. 2016). “A showing of plain error requires 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’s proceedings; and (4) the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.”

(internal quotation marks omitted).

It is far from “clear or obvious” that the district court erred under Tapia. That case

construed

(a) to “preclude[] federal courts from imposing or lengthening a prison

2 term in order to promote a criminal defendant’s rehabilitation.” Tapia,

. There,

the district court impermissibly “calculated the length of Tapia’s sentence to ensure that she receive

certain rehabilitative services.”

at 334–35. To be sure, here, the district court stated at

sentencing that “the nature and circumstances of the offense, the need for the sentence to reflect

the seriousness of the offense, to promote respect for the law and to provide a fair punishment, the

need for general deterrence and to protect the public from your crimes, and the very serious need

that you have for medical and psychiatric treatment that will take a considerable amount of time

. . . all led me to impose the maximum sentence that I could impose on each count.” App’x at

215 (emphases added). But moments earlier, the court suggested that its consideration of Crum’s

poor health primarily informed its recommendation that he be placed at a Federal Medical Center,

not the length of his sentence. See

at 214–15 (“I am recommending that you be placed in a

federal facility that has medical treatment available to you, also psychiatric treatment available to

you. . . . I think that getting you into some sort of treatment program as quickly as we can is going

to benefit you and is going to benefit everyone.”). Its later reference to his need for treatment

should be read with this context in mind. Indeed, these statements appear to have been a direct

response to Crum’s sentencing memorandum, in which he repeatedly raised his health problems

and asked that the court consider them in making a placement recommendation. See

at 164–

65; see also

at 173–74, 204. In any event, “a court may make a recommendation concerning

the type of prison facility appropriate for the defendant; and in this calculus, the presence of a

rehabilitation program may make one facility more appropriate than another.” Tapia,

(internal quotation marks omitted).

Under similar circumstances, district courts did not commit Tapia error by mentioning a

defendant’s rehabilitative needs in sentencing colloquies. In United States v. Gilliard,

(2d Cir. 2012), the district court remarked at sentencing that “it’s important . . . that you be

sentenced in such a way that you are able to address [your substance abuse] problems,” and “that’s

something, obviously, I take very, very seriously, and will, in fashioning my sentence.” Id. at

257 (internal quotation marks omitted). However, “the record [did] not suggest that the length

of Gilliard’s sentence was based on the district court’s consideration of his rehabilitative needs.”

Id. at 259 (emphasis in original). Instead, discussion of the defendant’s rehabilitative needs were

“in the context of recommending to the BOP appropriate treatment programs he should receive

while in custody[.]” Id. Likewise, in United States v. Lifshitz,

(2d Cir. 2013), the

district court stated that in determining a sentence, it “[took] . . . into account” factors including

ensuring “that Mr. Lifshitz continues to get the type of medical care he is obviously in need of.”

. We held this was not Tapia error because the court’s “primary considerations in

sentencing . . . were promoting respect for the law and protecting the public from further crimes

of this defendant.”

(internal quotation marks omitted). In light of the similarity

between the facts of this case and those in Gilliard and Lifshitz, whether the district court erred is,

at least, subject to “reasonable dispute.” Stevenson,

. On plain error review, that

is enough to foreclose relief. We have considered Crum’s remaining arguments and find them to

be without merit. Accordingly, we affirm.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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