22-1984 United States v. McLarty

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 28th day of June, two thousand twenty-four.

PRESENT:

DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges, MARK A. BARNETT, Judge. * _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-1984

* Chief Judge Mark A. Barnett, of the United States Court of International Trade, sitting by designation. DOUGLAS MCLARTY, a.k.a. Q Don,

Defendant-Appellant,

BRIAN RICHARDS, a.k.a. B Rich,

Defendant. † _____________________________________

For Defendant-Appellant: Andrew Freifeld, New York, NY.

For Appellee: Mitzi S. Steiner, Won S. Shin, Assistant United States Attorneys, for Damian Williams, 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 (Paul G. Gardephe, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the September 8, 2022 judgment of the district

court is AFFIRMED.

Douglas McLarty appeals from a judgment revoking his term of supervised

release and sentencing him to a term of eighteen months’ imprisonment following

his admission to violating the conditions of his supervision. McLarty asserts that

his sentence was procedurally and substantively unreasonable. We assume the

† The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

2 parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

As an initial matter, the government urges us to “avoid reaching the merits”

of McLarty’s appeal under the concurrent sentence doctrine. Gov’t Br. at 11

(quoting Kassir v. United States,

(2d Cir. 2021)). This doctrine

allows us to decline to hear the merits of a sentencing appeal when the defendant

is serving an identical concurrent sentence, “since a ruling in the defendant’s favor

would not reduce the time he is required to serve or otherwise prejudice him in

any way.” Kassir,

. As the government notes, McLarty is serving

another eighteen-month sentence for a separate violation of supervised release

based on the same conduct that runs concurrent to the eighteen-month sentence at

issue in this appeal. However, after the government filed its brief, McLarty filed

a challenge to that concurrent sentence under

. Because that

pending challenge might “reduce the time he is required to serve,” we cannot say

that the instant appeal is illusory, and we decline to invoke the concurrent sentence

doctrine here.

We therefore turn to the merits of McLarty’s appeal.

We review the procedural and substantive reasonableness of a sentence

“under a deferential abuse-of-discretion standard.” United States v. Smith, 949

(2d Cir. 2020) (quoting United States v. Betts,

(2d Cir.

2018)). A sentence is procedurally unreasonable when the district court

committed a “significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [section] 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Gall v. United States,

(2007); see also United States v.

Cavera,

(2d Cir. 2008) (en banc). A sentence is substantively

unreasonable when it would “damage the administration of justice” because it is

“shockingly high . . . or otherwise unsupportable as a matter of law.” United

States v. Rigas,

(2d Cir. 2009).

McLarty first argues that the district court committed procedural error by

imposing his revocation sentence based in part on the factors in

(a)(2)(A), which include “the need for the sentence imposed . . . to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment.” As McLarty explains, the provision that governs revocation

sentences –

(e) – instructs district courts to “consider” certain

provisions of section 3553(a) when imposing a sentence after supervised release

4 has been revoked.

(e) (directing sentencing courts to consider

“the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),

(a)(6), and (a)(7)”). Because section 3553(a)(2)(A) is not among those listed,

McLarty contends that the district court erred by considering it when imposing

his sentence. We disagree.

As a threshold matter, McLarty failed to raise this objection below, so we

review his procedural challenge only for plain error. See United States v.

Villafuerte,

(2d Cir. 2007). This requires McLarty to show that

the district court erred in a way that was “clear and obvious, affected the

defendant[’s] substantial rights, and seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Mehta,

(2d Cir. 2019).

McLarty falls short of establishing any error, let alone one that is clear and

obvious. For starters, we have long recognized that district courts may look in

part to the factors in section 3553(a)(2)(A) – including the “seriousness of [the]

offense” – when imposing a sentence under section 3583(e). United States v.

Williams,

(2d Cir. 2006) (explaining that section 3583(e) “simply . . .

require[s] consideration of the enumerated subsections of [section] 3553(a)” but

5 does not “forbid[] consideration of other pertinent factors”). Of course, we have

also cautioned that district courts should not place undue emphasis on section

3553(a)(2)(A), since the point of a revocation sentence is to “sanction the

defendant’s ‘breach of trust’” as opposed to his underlying conduct. United States

v. Ramos,

(2d Cir. 2020) (quoting United States v. Edwards,

(2d Cir. 2016)). But nothing suggests that the district court

committed such error here. To the contrary, the district court made clear that it

selected McLarty’s sentence because he had committed an “extremely serious

violation of his supervised release” that “involve[d] a separate breach of trust.”

App’x at 49–50 (“It is extremely disturbing that he returned to criminal conduct

immediately after his release to supervised release.”). And even though the

district court said it also considered the seriousness of McLarty’s conduct, the

record nowhere indicates that it gave that factor improper weight.

We also reject McLarty’s argument that his sentence was substantively

unreasonable, which we review for abuse of discretion. 1 “[I]n the overwhelming

1 Although McLarty did not raise this objection before the district court, we have not yet decided

whether plain error applies to such challenges. See United States. v. Thavaraja,

, 258 n.4 (2d Cir. 2014). We will therefore apply the more appellant-friendly abuse-of-discretion standard for the purposes of this appeal. See, e.g., United States v. Nunez,

, 622 (2d Cir. 2020).

6 majority of cases, a Guidelines sentence will fall comfortably within the broad

range of sentences that would be reasonable in the particular circumstances.”

United States v. Fernandez,

(2d Cir. 2006). Here, the district court

imposed an eighteen-month sentence that was below the Guidelines range of

twenty-four to thirty months. It also provided sound reasons for that sentence,

detailing how – within a day of his release into supervision – McLarty was arrested

in a reverse-sting operation for conspiring to rob several drug dealers. See App’x

at 48–49 (recounting how McLarty conspired with a confidential informant to rob

a group of narcotics traffickers and was arrested with firearms when he showed

up at the site of the planned robbery). Plainly, this is not one of the “exceptional

cases where the trial court’s decision ‘cannot be located within the range of

permissible decisions.’” Cavera,

(quoting United States v. Rigas,

(2d Cir. 2007)).

McLarty nevertheless maintains that it was unreasonable for the district

court to sentence him to a term of imprisonment that ran consecutively to the 115-

month sentence he received for the robbery conspiracy itself. Again, we disagree.

As the district court explained, McLarty’s revocation sentence was designed to

sanction his breach of trust, not the underlying robbery conspiracy, and a logical

7 way to achieve that end was to impose consecutive sentences for the two offenses.

Indeed, the Sentencing Commission’s policy statements advise district courts to

do just that, see U.S.S.G. § 7B1.3(f) (stating that revocation sentences should be

imposed “consecutively”), and we have repeatedly affirmed consecutive

revocation sentences on that basis, see, e.g., United States v. Kyzer,

,

424 (2d Cir. 2021) (“[I]t was not unreasonable for the district court to rely on the

same offense conduct in imposing both sentences consecutively because one

sentence was for the new conviction and the other was for the supervised release

violation.”); United States v. Rivera Santiago,

, 633 (2d Cir. 2020)

(similar).

We have considered McLarty’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