12-149-cr
     United States v. Green

                          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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               12-149-cr
17
18       ANDRE GREEN,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        YUANCHUNG LEE, Federal Defenders
23                                             of New York, Inc., Appeals
24                                             Bureau, New York, New York.
25
26       FOR APPELLEES:                        MATTHEW L. SCHWARTZ (Andrew L.
27                                             Fish, on the brief) for Preet
28                                             Bharara, United States

                                                  1
 1                              Attorney’s Office for the
 2                              Southern District of New York,
 3                              New York, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Southern District of New York (Pauley, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Andre Green challenges his sentence for failing to
13   register as a sex offender, arguing that the district court
14   erred in denying him a three-level reduction under United
15   States Sentencing Guidelines § 2A3.5(b)(2)(B). We assume
16   the parties’ familiarity with the underlying facts, the
17   procedural history, and the issues presented for review.
18
19        A district court “commits procedural error where it
20   fails to calculate the Guidelines range (unless omission of
21   the calculation is justified), makes a mistake in its
22   Guidelines calculation, . . . treats the Guidelines as
23   mandatory[,] . . . does not consider the § 3553(a) factors,
24   or rests its sentence on a clearly erroneous finding of
25   fact.” United States v. Cavera, 

, 190 (2d Cir.
26   2008) (internal citations omitted). We review a district
27   court’s interpretation of the Sentencing Guidelines de novo
28   and its related findings of fact for clear error. United
29   States v. Cain, 

, 301 (2d Cir. 2012).
30
31        The Guidelines provide for a three-level reduction if
32   the defendant “voluntarily . . . (B) attempted to register
33   but was prevented from registering by uncontrollable
34   circumstances and the defendant did not contribute to the
35   creation of those circumstances.” U.S.S.G. § 2A3.5(b)(2).
36   Green argues that the district court erroneously added a
37   requirement that, to be entitled to the reduction, he must
38   have “complied [with the statute] as soon as such
39   circumstances ceased to exist.” This language derives from
40   an affirmative defense outlined in 18 U.S.C. § 2250(b) and
41   is not a prerequisite to receiving a Guidelines reduction.
42
43        But the district court did not rest its decision on
44   Green’s inability to make out an affirmative defense under
45   18 U.S.C. § 2250(b). Instead, the court faithfully adhered
46   to the (less stringent) requirements set forth in §
47   2A3.5(b)(2)(B) and concluded that Green did not merit such a

                                  2
 1   reduction. The court found that while the uncontrollable
 2   circumstances claimed by Green may have prevented him from
 3   registering as a sex offender immediately upon entering New
 4   York, they did not impede his efforts throughout the
 5   subsequent year that he remained in the state before being
 6   arrested for this offense. This decision is well supported.
 7
 8        Finding no merit in Green’s remaining arguments, we
 9   hereby AFFIRM the judgment of the district court.
10
11
12                              FOR THE COURT:
13                              Catherine O’Hagan Wolfe, CLERK
14
15
16




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