23-7070-cr United States v. Murray

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 2nd day of October, two thousand twenty-four. Present: REENA RAGGI, WILLIAM J. NARDINI, Circuit Judges, NATASHA C. MERLE, District Judge. 1 _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 23-7070-cr DAMON MURRAY, Defendant-Appellant. _____________________________________

For Appellee: Michael Barnett, Jonathan Reiner, Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Albany, NY.

For Defendant-Appellant: James P. Egan, Assistant Federal Public Defender (Lisa Peebles, Federal Public Defender for the Northern District of New York), Syracuse, NY.

1 Judge Natasha C. Merle, United States District Judge for the Eastern District of New York, sitting by designation.

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

New York (Mae A. D’Agostino, District Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Damon Murray appeals from a judgment of the United States District

Court for the Northern District of New York (Mae A. D’Agostino, District Judge) entered on

August 25, 2023, revoking his supervised release. Murray pleaded guilty in 2015 to one count of

importing a controlled substance, in violation of

and 960(b)(3), and was

sentenced to fifty-one months of imprisonment followed by six years of supervised release. He

completed his custodial sentence and began his term of supervised release on July 19, 2019. Since

that time, the district court has revoked his supervised release on three separate occasions after

finding that he had violated the conditions of his release. Most recently, in August 2023, Murray

pleaded guilty to two violations—engaging in illegal drug use and violating the rules of his halfway

house—for which he was sentenced to nine months of imprisonment and an additional three years

of supervised release. Murray now appeals that sentence, arguing that the district court’s

imposition of a new term of supervised release was both procedurally and substantively

unreasonable. We assume the parties’ familiarity with the case.

“Sentences for violations of supervised release are reviewed under the same standard as

for sentencing generally: whether the sentence imposed is reasonable.” United States v. Brooks,

(2d Cir. 2018). 2 We review the reasonableness of a sentence “under a deferential

abuse-of-discretion standard.” United States v. Smith,

(2d Cir. 2020).

2 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.

2 I. Procedural Reasonableness

Murray first argues that the district court procedurally erred by relying on an unproven

allegation of criminal conduct—specifically, that he committed petit larceny under New York law

by stealing items worth approximately $565 from a Home Depot—as a basis for imposing the

three-year term of supervised release. We review this argument for plain error because Murray

did not raise it at sentencing. See Smith,

. To establish plain error, Murray must

show 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; and (4) the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.” United States v. Moore,

(2d Cir. 2020).

A district court commits procedural error when it “rests its sentence on a clearly erroneous

finding of fact.” United States v. Cavera,

(2d Cir. 2008) (en banc). We will

conclude that “[a] finding of fact is clearly erroneous only if, after reviewing all of the evidence,

this Court is left with the definite and firm conviction that a mistake has been committed.” United

States v. Cramer,

(2d Cir. 2015). Put differently, so long as the “district court’s

account of the evidence is plausible in light of the record viewed in its entirety,” we “may not

reverse” the district court even if we “would have weighed the evidence differently” as the trier of

fact. United States v. Cho,

(2d Cir. 2013) (quoting Anderson v. City of Bessemer

City,

, 573–74 (1985)). Based on our review of the record, we see no basis for

concluding that the district court’s decision to impose a three-year term of supervised release rested

on a clearly erroneous factual basis.

The Probation Department’s petition to revoke Murray’s supervised release for the third

time alleged that Murray had committed three violations: (1) illegal drug use, (2) failure to obey

3 the rules of his halfway house, and (3) the commission of a new crime—the alleged theft from

Home Depot. Murray pleaded guilty to the first two violations, but not the third, which the

government moved to dismiss at sentencing. Although neither party sought a new term of

supervised release, the Probation Department advocated for additional supervision, citing, among

other reasons, the alleged theft. In explaining its reasons for ordering additional supervision, the

district court stated, “[W]hen you are using cocaine, you are a danger to the community. You

steal. You’ve stolen guns while you’re under the influence.” App’x 99. Pointing to the Probation

Department’s citation to the alleged theft, Murray argues that the district court’s assertion that he

steals when using drugs indicates that the district court relied on that allegation. That reliance was

erroneous, he further argues, because the allegation was “unproven and unsupported.” Appellant’s

Br. 11. He contends that the petition does “not even mention . . . an arrest or formal charge” and

“provides no information that might allow a court to find, even by a preponderance of the evidence,

that [he] committed the alleged offense.” 3 Appellant’s Br. 12–13. This line of argument is

unavailing.

Murray offers—and we discern—no basis to conclude that the district court relied on the

alleged Home Depot theft in determining the sentence. Immediately after stating that Murray

“steal[s],” the district court noted that Murray had “stolen guns while . . . under the influence.”

App’x 99. That comment was apparently in reference to his December 2010 conviction for third-

degree burglary, which resulted from his theft of four firearms, among other items, while he was

admittedly drunk and high. At no point did the district court refer to the alleged Home Depot theft,

3 The petition cites “[p]olice records and officer testimony” as evidence that the alleged offense occurred, but

it does not attach or detail the substance of those records. App’x 82. Nonetheless, for the reasons set forth below, the absence of corroborating documentation is not dispositive here.

4 except to dismiss the violation relating to that alleged offense. Murray has thus failed to establish

that the district court committed any procedural error.

II. Substantive Reasonableness

Murray also argues that the district court’s decision to impose a new, three-year term of

supervised release was substantively unreasonable. When reviewing a sentence for substantive

reasonableness, we analyze the “totality of the circumstances, giving due deference to the

sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of

district courts.” United States v. Brown,

(2d Cir. 2016). 4 “A sentence is

substantively unreasonable if it cannot be located within the range of permissible decisions, if it

shocks the conscience, or if it constitutes a manifest injustice.” United States v. Williams,

(2d Cir. 2021).

Murray challenges the substantive reasonableness of his sentence on two grounds. First,

he contends that because prior terms of supervision had failed to result in his rehabilitation from

substance abuse, additional supervision would obviously be futile, such that “its only purpose

could be to punish [him] for his substance abuse failures.” Appellant’s Br. 16–17. Second, he

contends that his “perceived dangerousness cannot bear the weigh[t] assigned it by the district

court” because the latest evidence to support the district court’s concern about his propensity to

steal while using drugs comes from 2010 and is too distant to support the sentence. Id. at 17.

Neither argument is persuasive.

4 Murray did not challenge the substantive reasonableness of his sentence before the district court. Although, as noted above, this Court applies plain error review to unpreserved challenges to the procedural reasonableness of a sentence, see, Smith,

, we have not decided whether that standard also applies to unpreserved substantive challenges, see United States v. Thavaraja,

, 258 n.4 (2d Cir. 2014). We need not resolve that question here, because Murray’s challenge fails even under the less rigorous abuse-of-discretion standard.

5 The district court did not abuse its discretion by considering Murray’s continued need for

substance abuse treatment as a basis for additional supervised release. As Murray himself

acknowledges in his brief, we have recognized that district courts “may use supervised release to

attempt to rehabilitate individuals who suffer from an addiction and who have already violated the

drug-related terms of their supervised release.” Appellant’s Br. 16 (quoting United States v.

Sheldon, No. 21-2510,

, at *3 (2d Cir. June 8, 2022) (summary order), which in

turn cites Brooks, 889 F.3d at 102–03). While the district court here acknowledged that Murray

had already had “more drug treatment . . . than most people have in [their] lifetime,” it clearly

thought that rehabilitation was still possible, because it again ordered him to participate in a

substance abuse program. App’x 100–02. And for the purpose of assisting his rehabilitation

efforts, the district court also ordered him to refrain from alcohol and marijuana and to participate

in a mental health program.

at 102–03. The fact that Murray failed to achieve lasting sobriety

during previous terms of supervision does not render the district court’s sentence substantively

unreasonable. See United States v. Leon,

(2d Cir. 2011) (stating that

“defendant’s violation of the terms of his supervised release ‘tends to confirm the judgment that

help was necessary, and if any prisoner might profit from the decompression stage of supervised

release, no prisoner needs it more than one who has already tried liberty and failed’” (quoting

Johnson v. United States,

(2000))); see also Brooks,

(explaining

that “cases are legion” in which individuals struggling with drug addiction who have “repeated”

drug violations are sentenced to terms of supervised release).

Nor did the district court abuse its discretion by determining that Murray presented a

danger to his community based on his 2010 burglary conviction, which involved the theft of

firearms while he was under the influence of drugs and alcohol. Murray’s suggestion that the 2010

6 conviction is stale evidence of his propensity to steal while under the influence of drugs has little

purchase given that Murray was either on probation, on supervised release, or in custody for a

substantial portion of the years between that conviction and the sentencing at issue here.

Considering Murray’s long struggle with addiction, his repeated violations of the

conditions of his release, and the relationship between his drug abuse and his other criminal

activity, the district court’s decision to impose additional supervision for three years was

substantively reasonable.

* * *

We have considered Murray’s remaining arguments and find them to be unpersuasive.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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