11-493-cr
 USA v. Yelverton

                            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
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
 of February, two thousand twelve.

 Present:
          ROBERT A. KATZMANN,
          BARRINGTON D. PARKER,
                      Circuit Judges,
          JANE A. RESTANI,
                      Judge.*
 ________________________________________________

 UNITED STATES OF AMERICA,

            Appellee,

                    v.                                           No. 11-493-cr

 MICHAEL YELVERTON,

            Defendant-Appellant,

 ________________________________________________

 For Appellee:                     RAJIT S. DOSANJH (Daniel Hanlon, on the brief), Assistant
                                   United States Attorneys, for Richard S. Hartunian, United
                                   States Attorney for the Northern District of New York,
                                   Syracuse, N.Y.


        *
          Judge Jane A. Restani, of the United States Court of International Trade, sitting by
 designation.
For Defendant-Appellant:           LISA A. PEEBLES, Acting Public Defender (Molly K. Corbett,
                                   Research & Writing Assistant, on the brief), Office of the
                                   Federal Public Defender for the Northern District of New
                                   York, Albany, N.Y.


       Appeal from the United States District Court for the Northern District of New York
(Kahn, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Michael Yelverton appeals from a January 10, 2011 judgment of

the district court, issued after defendant’s entry of a guilty plea, finding that defendant violated

the terms of his supervised release and sentencing him principally to five months’ imprisonment

and two years of supervised release. On appeal, Yelverton argues that the district court’s

imposition of a two-year term of supervised release was substantively unreasonable. We assume

the parties’ familiarity with the facts and procedural history of this case.

       We review a sentence for a violation of the terms of supervised release using “the same

standard as for sentencing generally.” United States v. McNeil, 

, 277 (2d Cir.

2005). The substantive reasonableness of the sentence and the procedures employed in arriving

at the sentence are reviewed under a deferential “abuse-of-discretion standard.” United States v.

Hasan, 

, 167-68 (2d Cir. 2009). “We will . . . set aside a district court’s substantive

determination only in exceptional cases where the trial court’s decision ‘cannot be located within

the range of permissible decisions.’” United States v. Cavera, 

, 189 (2d Cir. 2008)

(en banc) (quoting United States v. Rigas, 

, 238 (2d Cir. 2007)).

       In challenging the district court’s substantive determination, Yelverton argues principally

that the imposition of a two-year term of supervised release was greater than necessary to



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comply with the purposes outlined in 18 U.S.C. § 3553(a) because the district court also imposed

a term of imprisonment as part of its sentence. He maintains that “[t]he additional

supervised-release term rendered the sentence of Mr. Yelverton unreasonable because the prison

term was adequate punishment for the violations, and the record failed to indicate the additional

supervised release would accomplish anything, especially when the district court could not

articulate reasons for the additional term.” Def.’s Br. 14.

       This argument is without merit. It is abundantly clear from the record that the district

court’s decision to impose a two-year term of supervised release in addition to a five-month term

of imprisonment was well within the range of permissible decisions. The district court expressly

considered the factors under 18 U.S.C. § 3553(a) and reasonably concluded that the sentence

imposed was sufficient, but not greater than necessary to comply with the purposes set forth

under that provision. For example, the district court noted Yelverton’s responsibilities to his son

and to his fiancee, and expressed its hope that a term of supervised release would help Yelverton

stay away from further criminal activity. The district court explained that the purpose of

supervised release was not to “catch” him, but rather to help him avoid further wrongdoing,

including by requiring him to participate in a substance-abuse program that provided for drug

testing and treatment. App. 65, 71, 87-89. The record therefore demonstrates that the district

court imposed the term of supervised release primarily to deter Yelverton’s further criminal

conduct and “to provide [Yelverton] with needed . . . medical care . . . or other correctional

treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(B), (D); see also United States

v. Johnson, 

, 59 (2000) (“Congress intended supervised release to assist individuals

in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from

those served by incarceration.”); United States v. Anderson, 

, 282 (2d Cir. 1994)


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(noting that courts may consider “medical and rehabilitative needs of the offender” in setting

term of supervised release). In addition, the length of the term of supervised release was

eminently reasonable in light of Yelverton’s history of repeated violations. See 18 U.S.C. §

3583(c) (directing courts to consider “history and characteristics of the defendant” under §

3553(a)(1) when determining length of supervised release term); 18 U.S.C. § 3583(a)(2)(A)

(directing courts to consider the need for the sentence imposed “to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the offense”).


       We have considered Yelverton’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.


                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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