11-3897-cr
     United States v. Johnson


                                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.

 1            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 5th day of November, two thousand twelve.
 4
 5   PRESENT:           JOHN M. WALKER, JR.,
 6                      DEBRA ANN LIVINGSTON,
 7                      CHRISTOPHER F. DRONEY,
 8                                      Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12             Appellee,
13
14            -v.-                                        No. 11-3897-cr
15
16   SIRMAIR JOHNSON,
17              Defendant-Appellant.
18
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20   For Appellee:                         EMILY BERGER, PAMELA K. CHEN, Assistant United
21                                         States Attorneys, for Loretta E. Lynch, United States
22                                         Attorney, Eastern District of New York, Rochester, New
23                                         York
24
25   For Defendant-Appellant:              SALLY WASSERMAN, New York, New York
26
27
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 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3          Defendant-Appellant Sirmair Johnson (“Johnson”) appeals from a judgment of the United

 4   States District Court for the Eastern District of New York (Dearie, J.), dated September 19, 2011,

 5   revoking his supervised release and sentencing him to 24 months’ incarceration after he pled guilty

 6   to a violation of the terms of supervised release. On appeal, Johnson challenges the procedural and

 7   substantive reasonableness of his sentence. Specifically, Johnson argues both that his sentence was

 8   unreasonable because the district court failed to cite or analyze the factors listed in 18 U.S.C. §

 9   3553(a), and that it was overly harsh.1 We assume the parties’ familiarity with the underlying facts,

10   procedural history of the case, and issues on appeal.

11          We review sentences for violations of supervised release for reasonableness, applying an

12   abuse of discretion standard. United States v. Verkhoglyad, 

, 127 (2d Cir. 2008).

13   “Reasonableness review requires an examination of the length of the sentence (substantive

14   reasonableness) as well as the procedure employed in arriving at the sentence (procedural

15   reasonableness).” United States v. Johnson, 

, 51 (2d Cir. 2009). Since Johnson

16   concedes that he failed to object below, his challenges are subject to plain error analysis. See United

17   States v. Villafuerte, 

, 207 (2d Cir. 2007).

18   I. Procedural Reasonableness

19          Johnson admits that his sentence of two years’ incarceration was statutorily permissible, but

20   argues that the district court did not conduct a proper sentencing analysis because it did not directly

21   cite or sufficiently refer to the factors listed in 18 U.S.C. § 3553(a) during sentencing. We disagree.

            1
              In his brief, Johnson also argues that the district court failed to provide a statement of
     reasons for his above-Guidelines sentence pursuant to 18 U.S.C. § 3553(c)(2). Counsel
     withdrew this argument during oral argument.

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 1          When a judge imposes a sentence for a violation of supervised release, 18 U.S.C. §

 2   3583(e)(3) requires that he consider the factors listed in 18 U.S.C. § 3553(a), including the nature

 3   and circumstances of the offense, the history and characteristics of the defendant, the applicable

 4   Guidelines range, and the need for deterrence, among others. See 18 U.S.C. § 3553(a). However,

 5   we “take a deferential approach” in our review of compliance with this prescription, and “refrain

 6   from imposing any rigorous requirement of specific articulation by the sentencing judge.” United

 7   States v. Fleming, 

, 99 (2d Cir. 2005); see United States v. Cavera, 

, 193

 8   (2d Cir. 2008) (en banc) (“we do not require robotic incantations that the district court has

 9   considered each of the § 3553(a) factors” (internal quotation marks omitted)). Therefore, we will

10   not assume, simply because the sentencing judge did not explicitly cite § 3553(a) or list each factor

11   therein, that the court failed to take into account the relevant statutory considerations. See

12   Verkhoglyad, 516 F.3d at 129 (“[I]n the absence of record evidence suggesting otherwise, we

13   presume that a sentencing judge has faithfully discharged her duty to consider the statutory factors.”

14   (internal quotation marks omitted)).

15          The transcript of Johnson’s sentencing shows that the court was not only aware of the nature

16   of Johnson’s violation of supervised release and the applicable Guidelines range, but also that he

17   was familiar with Johnson’s history and characteristics. At sentencing, the court heard presentations

18   from Johnson’s attorney, who asked for a within-Guidelines sentence of four-to-ten months; the

19   prosecutor; and Johnson’s probation officer, who detailed Johnson’s uncooperative attitude and

20   noncompliance with requirements of supervision. The court recognized during sentencing that this

21   was the “second time around” for Johnson, who was previously sentenced to 12-months-and-one-

22   day’s incarceration for two prior violations of supervised release. As Judge Dearie told Johnson,


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 1   “I recall you, individually – and it’s not easy to do all the time – from the original sentence and

 2   from the first violation.” Judge Dearie also stated that he was “aware” that Johnson’s current

 3   violation was based on the same kind of behavior as his prior violation, and noted that Johnson had

 4   “blown [] off” drug testing. After hearing the parties’ presentations, Judge Dearie expressed his

 5   “frustration” with Johnson’s subsequent violation because he “saw some real potential in [Johnson].”

 6   The judge imposed an above-Guidelines sentence of two years’ imprisonment and explained to

 7   Johnson, “There will be no further supervision for you . . . We’ve offered [resources] repeatedly.

 8   You chartered your own course, and that’s just too darn bad. Just too darn bad. Everything was in

 9   place, I thought, to give you a shot. First time and second time. The only thing missing was you.”

10           Thus, although the sentencing court did not specifically cite or list the § 3553(a) factors, the

11   record clearly demonstrates that Judge Dearie imposed Johnson’s sentence after consideration of

12   the nature of the current violation and Johnson’s history of infractions, as well as Johnson’s personal

13   history and characteristics, including an unwillingness to cooperate with Probation or follow the

14   directives of the court. Crediting the district court’s familiarity with the record and the parties, and

15   since there is nothing in the record to the contrary, “we will accept that the requisite consideration

16   has occurred.” Fleming, 397 F.3d at 100; see id. (“[O]ur context is that of experienced district

17   judges, familiar with both the substantive content of relevant law and procedural requirements, who

18   face the daunting task of administering heavy caseloads.”). We therefore find no reason to doubt

19   the procedural reasonableness of the sentence.

20   II. Substantive Reasonableness

21           Johnson also challenges the substantive reasonableness of his sentence, arguing that two

22   years’ imprisonment “reflects an unreasonably harsh response” to a violation of supervised release


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 1   based on possession of marijuana. “In reviewing for substantive reasonableness, we consider the

 2   totality of the circumstances, and reverse only in exceptional cases where the trial court’s decision

 3   cannot be located within the range of permissible decisions[.]” United States v. Mason, 

   178, 181 (2012) (internal quotation marks and citations omitted).

 5          This is not one of those exceptional cases. See Fleming, 397 F.3d at 100-101 (affirming two-

 6   year sentence for defendant’s third violation of supervised release). As explained above, the district

 7   court sentenced Johnson after consideration of the factors listed in 18 U.S.C. § 3553(a), including

 8   his history of substance abuse, repeated violations of the law and disregard for the terms of his

 9   supervision – all of which could reasonably lead a court to conclude that an upward departure from

10   the Guidelines was warranted. And given that Johnson had received a substantial downward

11   departure on his original sentence, an upward departure was well within the contemplated range of

12   permissible decisions. See U.S.S.G. § 7B1.4, comment n.4 (noting that for violations of supervised

13   release, “[w]here the original sentence was the result of a downward departure . . ., an upward

14   departure may be warranted”). Therefore, since Johnson’s sentence was neither “shockingly high,

15   shockingly low, or otherwise unsupportable as a matter of law,” United States v. Rigas, 

   108, 123 (2d Cir. 2009), we cannot conclude that Johnson’s sentence was substantively

17   unreasonable, and we affirm the district court’s sentence in its entirety.

18          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

19

20                                                         FOR THE COURT:
21                                                         Catherine O’Hagan Wolfe, Clerk
22




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