11-1593-cr
United States v. Bouyea

                            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 United States Courthouse, 500 Pearl Street, in the City of New York,
on the 3rd day of July, two thousand twelve,

Present:    CHESTER J. STRAUB,
            ROSEMARY S. POOLER,
                        Circuit Judges.
            EDWARD R. KORMAN,*
                        District Judge.
_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                          -v-                                              11-1593-cr

WAYNE BOUYEA, AKA SEALED DEFENDANT #1,

                        Defendant-Appellant.**
_____________________________________________________

Appearing for Appellant:        Peter J. Tomao, Garden City, N.Y.

Appearing for Appellee:         Brenda K. Sannes, Lisa M. Fletcher, Assistant United States
                                Attorneys (of counsel) (Richard S. Hartunian, United States
                                Attorney for the Northern District of New York), Syracuse, N.Y.


        *
          The Honorable Edward R. Korman of the United States District Court for the Eastern
District of New York, sitting by designation.
        **
          The Clerk of the Court is directed to amend the official caption of the case to conform
to the caption shown above.
     Appeal from a judgment of the United States District Court for the Northern District of
New York (Hurd, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Wayne Bouyea appeals from his sentence in federal district court after pleading guilty to
making violent threats and to possessing weapons as a convicted felon in violation of federal
law. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

         Bouyea argues that the district court improperly departed upwards, pursuant to Section
4A1.3 of the U.S. Sentencing Guidelines, from the Guidelines’ recommended sentencing range.
“We review the district court’s finding regarding the adequacy of the calculated criminal history
for clear error and review the scope of the sentencing court’s departure [under Section
4A1.3(a)(1) ] for reasonableness.” United States v. White, 

, 252 (2d Cir. 2009)
(alteration in original) (internal quotation marks omitted). We do not believe that the district
court’s upward departure under Section 4A1.3 of the Guidelines was improper. We note only
that this Court has made clear that certain convictions that would otherwise be too old to be
considered in calculating a defendant’s criminal history category, see U.S.S.G. § 4A1.1 cmt. n.1,
“may be the basis for . . . a departure” under Section 4A1.3. United States v. Reifler, 

, 112 (2d Cir. 2006) (citing United States v. Delmarle, 

, 85 (2d Cir. 1996)).

         Bouyea also argues on appeal that the district court’s sentence was substantively
unreasonable. See generally 18 U.S.C. § 3553(a); United States v. Cavera, 

, 190
(2d Cir. 2008) (en banc). “In reviewing the reasonableness of a sentence outside the Guidelines
range, appellate courts may . . . take the degree of variance into account and consider the extent
of a deviation from the Guidelines.” Gall v. United States, 

, 47 (2007). Here, the
district court both departed upwards from the recommended Guidelines sentence and varied from
the Guidelines framework as well. See generally United States v. Stewart, 

, 137 n.32
(2009). We, however, are unable to conclude that the district court’s sentence in this case was
substantively unreasonable, in light of the need both to prevent Bouyea from being able to carry
out his threatened acts of violence and also to protect the people he threatened.

         Moreover, Bouyea’s argument that the district court’s explanation for the sentence was
insufficient is without merit. See generally 18 U.S.C. § 3553(c); Cavera, 550 F.3d at 193 (“A
district judge imposing a non-Guidelines sentence . . . should say why she is doing so, bearing in
mind, once again, that a major departure [from the Guidelines] should be supported by a more
significant justification than a minor one.” (alteration in original) (internal quotation marks
omitted)). We note only that the district court stated, among other things, at the sentencing
hearing: “Fortunately, this tragedy was prevented, and I am going to do my best to see that it is
prevented in the future and that you are not given the opportunity to fulfill what you said you
were doing.” In addition, the district court explained to Bouyea: “You oldest daughter is in
college, and I don’t want her to be looking around the corner or looking up at some buildings
where you may be hiding with a firearm to kill her.”

                                                2
         Finally, Bouyea argues that the district court erred by failing to respond to Bouyea’s
specific challenges to allegations that were included in the presentence report. Federal Rule of
Criminal Procedure 32 makes clear that “[a]t sentencing, the court . . . must—for any disputed
portion of the presentence report or other controverted matter—rule on the dispute or determine
that a ruling is unnecessary either because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3). While a “district
court . . . may [comply with Rule 32] by adopting the recommendations of the presentence
report,” United States v. Ahders, 

, 119 (2d Cir. 2010), in this context, we believe
that the district court, in adopting the presentence report and the addendum, merely
acknowledged that there were certain disputes outstanding but did not “rule on the dispute or
determine that a ruling is unnecessary” in accordance with Federal Rule of Criminal Procedure
32(i)(3)(B).

          Bouyea, however, failed to specifically object to the district court’s failure to comply
with Rule 32. We thus review the district court’s failure to comply with Rule 32 for plain error,
see United States v. Wagner-Dano, 

, 94 (2d Cir. 2012), and conclude that the
violation of Rule 32 in this case did not constitute plain error because Bouyea has not
demonstrated that “the error affected . . . [his] substantial rights, which in the ordinary case
means it affected the outcome of the district court proceedings.” United States v. Marcus, 130 S.
Ct. 2159, 2164 (2010) (internal quotation marks omitted); see Wagner-Dano, 679 F.3d at 94
(“[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it
. . . .” (alteration and omission in original) (quoting United States v. Dominguez Benitez, 

, 82 (2004)) (internal quotation marks omitted). Indeed, Bouyea himself acknowledges
on appeal that “it is impossible to tell from the record to what extent [the disputed factual
contentions in the presentence report] affected the sentence.”

      We have considered Bouyea’s remaining arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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