UNITED STATES OF AMERICA, Aрpellee, v. AHMED ALDEEN, Defendant-Appellant.
Docket No. 14-2706-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: July 6, 2015
August Term 2014 (Submitted: June 22, 2015)
CABRANES, POOLER, and CHIN, Circuit Judges.
Appeal from a July 28, 2014 judgment of the United States District Court for the Eastern District of New York (Townes, J.), sentencing defendant-appellant Ahmed Aldeen to eighteen months’ imprisonment and three years’
REMANDED.
Karen L. Koniuszy and Susan Corkery, Assistant United States Attorneys, for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.
CHIN, Circuit Judge:
Defendant-appellant Ahmed Aldeеn appeals from a July 28, 2014 judgment of the United States District Court for the Eastern District of New York (Townes, J.), convicting him, following a guilty plea, of violating for the second time the conditions of his supervised release by associating with a convicted
Aldeen now challenges his above-Guidelines sentence on both procedural and substantive grounds. For the reasons set forth below, we remand for further proceedings consistent with this opinion.
BACKGROUND
In August 2008, Aldeen was convicted, following a guilty plea, of one count of possession of child pornography, in violation of
After being released from prison, Aldeen began serving his initial term of supervised release in February 2010. On September 28, 2011, the Probation Department charged him with violating several of his conditions of supervised release, including by failing to notify the Probation Department that he had certain access to the internet. He eventually pled guilty to failing to report to his Probation Officer. On August 22, 2012, the district court sentenced him to ten months’ imprisonment, the top of the Guidelines range, as well as three additional years’ supervised release. The judgment, however, was not entered until January 28, 2013.
For this second term of supervised release, the district court imposed the standard conditions of supervision and three special conditions. Relevant to this appeal are the following:
[Standard Condition] 9) [T]he defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer . . . .
[Special Condition] 1) The defendant shall participate in a mеntal health treatment program, which may include
participation in a treatment program for sexual disorders . . . . [Special Condition] 2) The defendant is not to use a computer, Internet capable device, or similar electronic device to access pornography of any kind. . . . The defendant shall also cooperate with the United States Probation Department‘s Computer and Internet Monitoring program. Cooperation shall include . . . identifying computer systems, Internet capаble devices, and/or similar electronic devices the defendant has access to . . . . The defendant may be limited to possessing only one personal Internet capable device, to facilitate our department‘s ability to effectively monitor his Internet related activities.1
App. at 47-48.
In 2014, one year into this second term of supervised release, Aldeen was again charged with violating the conditions of supervision. According to the Probation Department, Aldeen allegedly spoke with another mеmber of his treatment group, also a convicted felon, on the subway following a group treatment session, in violation of Standard Condition 9. Probation stated that it had “received information” that Aldeen had asked his fellow group member for
Pursuant to an agreement with the government, Aldeen pled guilty on April 17, 2014 to the first charge: associating with a persоn convicted of a felony. He allocuted that he “spoke to one of [his] group at the subway,” knowing the person had been convicted of a felony, and knowing that he was not supposed to have contact with other group members outside the treatment program. Id. at 73.
The first charge was a grade “C” violation, as defined by
On April 23, 2014, the district court sentenced Aldeen to eighteen months’ imprisonment and an additional term of supervised release of three years.2 The district court explained its sentence as follows:
Mr. Aldeen, you haven‘t even tried. You lie to everybody. I looked back through my notes. When I accepted your guilty plea, I did so and I said even though I know he‘s lied about parts of this, and you continue to do that. You used this unauthorized electronic device, this cell phone. You liеd to your probation officer, and it was just totally unbelievable to
me that you came to probation with that telephone, and you gave it to the officers downstairs and then picked it up as you were going out the door. I mean, you just ignored the conditions that have been set for you. You admitted contact with a felon outside of the treatment facility. You lied in treatment. . . . [Y]ou took a polygraph examination,3 which indicated that you lied in your denial of contact with minors. I just -- and this is your second violation of supervised release. I just find that in order to deter you and hopefully cause you to really think about this and stop committing these offenses, you are -- the guidelines for the violation in charge one is -- those guidelines are four to ten months. That is far too short a term to afford deterrence in this case.
I do find that my sentence, which will hopefully get to you, must be above the advisory guideline range, just to try to [a]ffect you, in causing you to obey the conditions of supervised release.
App. at 80-81. The district court сoncluded that Aldeen‘s “abidance of the conditions of supervised release, . . . ha[s] been almost nil in this case.” Id. at 86. Judgment was entered on July 28, 2014.
This appeal followed.
We review a sentence for procedural and substantive reasonableness under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012) (“[O]ur standard is ‘reasonableness,’ ‘a particularly deferential form of abuse-of-discretion review.‘“) (quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc)); see also United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014). Aldeen challenges both the procedural and substantive reasonableness of his sentence.
A. Procedural Reasonableness
1. Applicable Law
A sentence is procedurally unreasonable if the district court “fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
When a district judge deviates from an advisory Guidelines range, it must consider the “extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Cavera, 550 F.3d at 189 (quoting Gall, 552 U.S. at 50)). Where there is a variance, on appellate review, “we may take the degree of variance into account and consider the extent of a
These concepts apply as well to sentences for violations of supervised release. See United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005) (“The standard of review on the appeal of a sentence for violation of supervised release is now the same standard as for sentencing generally: whether the sentence imposed is reasonable.“). Nonetheless, there are some differences between sentencing for the underlying crime and sentencing for a violation of supervised release. Supervised release was established by the Sentencing Reform Act of 1984, as amended,
Though the imposition of an above-Guidelines sentence triggers a “higher descriptive obligation,” United States v. Cassesse, 685 F.3d 186, 193 (2d Cir. 2012), we simultaneously require less rigorous specificity where, as here, a court sentences a defendant for violation of supervised release. See United States v. Verkhoglyad, 516 F.3d 122, 132-33 (2d Cir. 2008) (“[A] court‘s statement of its reasons for going beyond non-binding policy statements in imposing a sentence after revoking a defendant‘s probationary term need not be as specific as has been required when courts departed from guidelines that were, before Booker, considered to be mandatory.” (quoting United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005))); see also United States v. Hargrove, 497 F.3d 256, 260-61 (2d Cir. 2007) (“We have drawn a sharp divide between initial sentencing and the revocation of supervised release with respect to the protections and safeguards available to the individual.“).
2. Application
Aldeen argues that the district cоurt erred by failing to state in open court, and in writing as part of its judgment, the reasons for imposing an above-Guidelines sentence with the specificity required by
On the present record, we are not persuaded that the district court provided a sufficiently compelling justification to support the degree of the variance. See Cavera, 550 F.3d at 189. The district court imposed a custodial sentence of eighteen months, when the Guidelines only called for four to ten months, as well as an additional three years of supervised release. Moreover, Aldeen pled guilty only to associating with a convicted felon, and he admitted only that he “spoke to one of [his] group at thе subway” following one of their group treatment sessions. App. at 73. Without more, this conduct -- speaking to a member of the treatment group in the subway after one of the sessions -- would not seem to warrant such a substantially above-Guidelines sentence. Indeed, it would seem that the district court‘s decision to impose an 18-month sentence and another three years of supervised release was driven by other considerations.
At the sentencing, the government argued that an above-Guidelines sentence was аppropriate because Aldeen had “multiple unreported devices.” Id. at 78. The Probation Officer argued that an above-Guidelines sentence was appropriate because Aldeen “never once reported any sexual urges in any of
Aldeen pled guilty, however, only to associating with a convicted felon. He did not admit to possession of multiple unauthorized devices or using any such devices for pornographic purposes, as the Probation Department alleged, and, in fact, that charge (the second specification) was dismissed. The judgment declared that “[t]he defendant has not violated condition(s) 2-3 and is discharged as to such violation(s) [of his] condition[s].” Id. at 87.
Ordinarily, conduct supporting acquitted or dismissed charges may be taken into account in sentencing if the government establishes that conduct by a preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 155-56 (2007); United States v. Kim, 896 F.2d 678, 684 (2d Cir. 1990) (permitting the use of dismissed charges to support an above-Guidelines sentence). Such conduct, however, must still “relate in some way to the offense of conviction,” even if that relation is not “technically covered” by the Guidelines’ definition of relevant
Here, it appears that the district court relied on the allegations regarding the use of multiple unauthorized devices, even though that charge was dismissed. But there was no hearing, and, even assuming that Aldeen made use of multiple unauthorized devices, the district сourt made no specific finding that the use of multiple unauthorized devices was relevant to the conduct of conviction: associating with a convicted felon by communicating with him in the
Similarly, with respect to the subway conversation, the government argued that Aldeen had “previously absconded” and “hеre he is approaching somebody, asking for information about how to flee the country.” App. at 78. But in his plea allocution, Aldeen admitted only to speaking with a member of the group in the subway after a session. He did not admit that he asked the group member for assistance in fleeing the country, as the government alleged. The Probation Department report asserted only that the Probation Officer had “received information” to this effect, without even identifying the source of the information. Id. at 60. The district court did not make any findings on this issue, and it is unclear, on this record, whether the communication between Aldeen and the group member was innocuous or whether Aldeen was genuinely up to no good.
Because there was a major deviation from the Guidelines range in this case, the district court was obliged to provide a more substantial justification for its sentence. On the current record, in the absence of specific findings and a
The written statement of reasons fares no better.
We acknowledge that sentencings in revocation proceedings are often conducted in a more informal manner than sentencings in the underlying criminal cases. We do not suggest that the sentencing for violations of supervised release must be accompanied by “[t]he full panoply of procedural safeguards” that attends a sentencing on initial criminal charges. United States v. Carlton, 442 F.3d 802, 809 (2d Cir. 2006). Nonetheless, even in the revocation context, a district court must sufficiently explain its reasoning so that the parties, the public, and a reviewing court can understand the justification for the sentence, particularly when there is a material deviation.
Accordingly, we remand to the district court for further findings and explanation. To the extent the district court relies on conduct that was the subject of the dismissed charges or on misbehavior beyond the conduct of conviction, the district court must make findings with respect to the factual bases for its sentencing decision, including, inter alia, whether there was a meaningful connection between the conduct of conviction and conduct falling beyond the scope of the defendant‘s plea. On remand, if the district court adheres to its
B. Substantive Reasonableness
We turn now to the question of substantive reasonableness: whether the sentence of eighteen months’ imprisonment and three additional years’ supervised release “shock[s] the conscience,” constitutes a “manifest injustice,” or is otherwise substantively unreasonable. United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (internal quotation marks omitted); see generally Chu, 714 F.3d at 746, 748-49. Our review for substantive unreasonableness is “particularly deferential.” Broxmeyer, 699 F.3d at 289 (citing Gall, 552 U.S. at 51). We will set aside sentences as substantively unreasonable “only in exceptional cases where the trial court‘s decision ‘cannot be located within the range of permissible decisions,‘” Cavera, 550 F.3d at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)), that is, when sentences “are so ‘shockingly high, shockingly low, or otherwise unsupportable as a matter оf law’ that allowing them to stand would ‘damage the administration of justice.‘” Broxmeyer, 699 F.3d at 289 (quoting Rigas, 583 F.3d at 123).
For the foregoing reasons, we REMAND to the district court with instructions that it vacate the sentence and resentence Aldeen in accordance with the above. Because Aldeen has already served the majority of his above-Guidelines sentence, the mandate shall issue forthwith.