23-6428 United States v. Sokol

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 September, two thousand twenty-four.

PRESENT: GERARD E. LYNCH, MYRNA PÉREZ, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6428

NICHOLAS SOKOL,

Defendant-Appellant.

_____________________________________ FOR DEFENDANT-APPELLANT: JOSEPH W. RYAN, JR., Melville Law Center, Melville, NY.

FOR APPELLEE: KATE MATHEWS (Alixandra Smith, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

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

York (Brown, J.).

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

DECREED that the district court’s judgment is AFFIRMED.

BACKGROUND

Defendant-Appellant Nicholas Sokol pleaded guilty to one count of witness tampering and

obstruction of an official proceeding in violation of

(a)(2)(A), (a)(3)(C). The

plea agreement reflected the parties’ belief that the United States Sentencing Guidelines (the

“Guidelines”) would recommend a sentence of 46 to 57 months’ imprisonment. The United

States Probation Office’s initial presentence report calculated a Guidelines range of 51 to 63

months and recommended the district court impose a sentence of 51 months’ imprisonment.

At the sentencing hearing, the district court asked why the presentence report did not apply a cross-

reference under U.S.S.G. § 2J1.2(c)(1), which applies to obstruction-of-justice offenses that

“involved obstructing the investigation or prosecution of a criminal offense.” The district court

adjourned Sokol’s sentencing for the Probation Office to address the potential applicability of the

cross-reference. Later, the Probation Office issued a revised presentence report applying the

cross-reference, which yielded an advisory Guidelines range of 121 to 151 months’ imprisonment.

2 The Probation Office, however, recommended a sentence of 90 months’ imprisonment, and the

government recommended 57 months, consistent with the plea agreement. At the second

sentencing hearing, the parties agreed that the applicable Guidelines range was 121 to 151 months’

imprisonment. After hearing from the parties, the district court sentenced Sokol principally to a

term of 84 months’ imprisonment and three years of supervised release.

Sokol filed a timely appeal, contending that his sentence of 84 months’ imprisonment

should be remanded for “clarification” because the district court showed bias, or the appearance

of bias, by, among other things, not accepting the government’s recommended sentence of 57

months’ imprisonment. We assume the parties’ familiarity with the remaining underlying facts,

the procedural history, and the issues on appeal and recount only as necessary to explain our

decision to affirm the judgment.

STANDARD OF REVIEW

“We employ ‘a particularly deferential form of abuse-of-discretion review that we apply

both to the procedures used to arrive at the sentence (procedural reasonableness) and to the length

of the sentence (substantive reasonableness).’” United States v. Martinez,

(2d

Cir. 2024) (quoting United States v. Davis,

, 195–96 (2d Cir. 2023)). 1

“Procedural error occurs in situations where, for instance, 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,

The parties dispute whether we should review Sokol’s challenge for plain error. That dispute is immaterial, however, because Sokol’s challenge fails under either standard of review.

3 82, 86 (2d Cir. 2011) (citing Gall v. United States,

(2007)).

“If the district court is found to have committed no procedural errors, ‘the appellate court

should then consider the substantive reasonableness of the sentence imposed,’ which includes

looking to the ‘totality of the circumstances.’”

(quoting Gall,

).

“[S]ubstantive reasonableness examines whether . . . the district court’s exercise of its discretion

can be ‘located within the range of permissible decisions.’” United States v. Sims,

(2d Cir. 2024) (quoting United States v. Kunz,

(2d Cir. 2023)).

DISCUSSION

In sentencing Sokol to a term of 84 months’ imprisonment, the district court did not commit

any procedural or substantive errors that warrant vacatur. Furthermore, the record does not

support the conclusion that the district court showed, or appeared to show, bias in sentencing

Sokol.

I. Procedural and Substantive Reasonableness

The district court acted within its authority to question sua sponte the initial omission of

the sentencing cross-reference and properly concluded that the cross-reference applied because the

offense involved obstructing the investigation or prosecution of a criminal offense—namely, a trial

before Judge Seybert in the Eastern District of New York.

The district court did not miscalculate the Guidelines. After applying the § 2J1.2(c)(1)

cross-reference, the proper Guidelines range was 121 to 151 months’ imprisonment. 2 Indeed, the

2 Sokol did not dispute this Guidelines calculation before the district court or in his briefs to this Court. At oral argument before this Court, Sokol’s counsel asserted, for the first time, that the application of the § 2J1.2(c)(1) cross- reference was improper because Sokol lacked sufficient connection to the defendant whose prosecution he sought to obstruct. Even if properly preserved, this argument would lack merit. Sokol pleaded guilty to witness tampering,

4 district court imposed a sentence that was not only less than the Probation Office’s below-

Guidelines recommendation but was also 37 months less than the lower end of the Guidelines

range.

Nor did the district court treat the Guidelines as mandatory. In fact, the district court

deviated from the Guidelines range and explicitly recognized that the Guidelines are “advisory.”

App’x at 22.

The district court also considered the § 3553(a) factors, including Sokol’s criminal history,

mental-health history, and challenging upbringing. See, e.g., id. at 32–33. The district court

also accounted for Sokol’s incarceration during the COVID-19 pandemic, “when incarceration

was harder than in the past.” Id. at 33 (“I do weigh that because you already have been punished

more than the time you have been in. I tried to factor that in. But, at the end of the day, it is

very serious conduct requiring a very serious sentence.”); see also id. at 32 (“[The Guidelines

recommend] that you should go to jail for at least ten years,” but “there[] are a lot of things

weighing in your favor.”). The district court’s consideration of these factors was both

reasonable and sufficiently explained.

We have no trouble concluding that, under the circumstances of the case, the district court’s

below-Guidelines sentence “easily falls within the broad range of permissible decisions available

to the district court.” United States v. Messina,

(2d Cir. 2015) (stating that such

a conclusion “is warranted . . . especially when . . . a defendant challenges a below-Guidelines

and his allocution made clear that his acts were intended to obstruct a pending federal prosecution. Nothing more was required for § 2J1.2(c)(1) to apply. Cf. United States v. Giovanelli,

(2d Cir. 2006) (holding that the § 2J1.2(c)(1) cross-reference applied when a defendant endeavored unsuccessfully to obstruct justice).

5 sentence”); see also United States v. Halloran,

(2d Cir. 2016) (concluding that

the defendant’s “120-month sentence, which was below the Guidelines range of 151 to 188

months, was reasonable”); United States v. Perez-Frias,

(2d Cir. 2011) (“It is . . .

difficult to find that a below-Guidelines sentence is unreasonable.”).

II. Bias

Sokol’s contention that the district court showed, or appeared to show, bias in sentencing

him to 84 months’ imprisonment is similarly without merit. “[A] judge’s comments during a

proceeding that are ‘critical or disapproving of, or even hostile to, counsel, the parties, or their

cases, ordinarily do not support a bias or partiality challenge.’” United States v. Carlton,

(2d Cir. 2008) (quoting Liteky v. United States,

(1994)). To

support such a challenge, the record must indicate a sufficiently “high degree of . . . antagonism.”

Liteky,

. None of the statements to which Sokol points us rises to that level.

First, Sokol argues unpersuasively that the district court’s characterization of Sokol’s

conduct as “pretty outrageous,” App’x at 32, suggests that the district court harbored a bias. Such

commentary alone is insufficient to support a bias challenge. This comment reflects the district

court’s assessment of the severity of Sokol’s offense, a factor that the district court was required

by statute to consider. See

(a)(1), (a)(2)(A).

Second, Sokol argues incorrectly that the district court “complete[ly] reject[ed]” the

“overwhelming evidence” that Sokol’s behavior resulted from “a twisted and irrational mind

induced by alcohol, drugs, and a well-documented anti-social personality disorder,” Appellant’s

Br. at 10, and that the district court evinced bias by stating that Sokol’s “bad childhood, [] troubling

6 past, [and] troubling psychiatric history” did not warrant “a free pass,”

at 11 (quoting App’x at

32-33). But the district court did not reject this evidence. To the contrary, the district court

specifically acknowledged that Sokol’s difficult childhood and mental-health struggles provided

at least some explanation as to “why [he] did some of these things,” commenting merely that they

were “not an excuse.” App’x at 33. Nor did the district court’s comment that Sokol would not

get a “free pass” evince any antagonism that would warrant remand.

Lastly, Sokol argues unconvincingly that the district court created an appearance of bias

by insufficiently explaining its decisions to (1) impose a sentence higher than the government’s

recommendation and (2) disregard the Probation Office’s recommendation that he be required to

receive mental-health treatment while on supervised release. As to the second point, Sokol is

factually incorrect: the district court did adopt the Probation Office’s recommendation regarding

mental health treatment. See App’x at 34 (“I will include in the supervised release all of the terms

and conditions in the PSR,” including the provision related to mental health treatment.). But even

if the district court had not done so, our precedent is clear that “[s]entencing responsibility is

committed to the judicia[ry].” Messina,

. The district court was not required to

follow either the government’s or the Probation Office’s recommendations. And, again, the

district court sufficiently explained its reasons for imposing the sentence. See App’x at 31–33;

United States v. Pugh,

(2d Cir. 2019) (“[T]he ‘sentencing judge should set forth

enough to satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.’” (quoting Rita v. United

States,

(2007))).

7 * * *

We have considered Sokol’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

8