Filed: Dec. 21, 2018
Latest Update: Mar. 03, 2020
Summary: 18-334-cr United States v. Whitaker 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 ASUMMARY O
Summary: 18-334-cr United States v. Whitaker 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 ASUMMARY OR..
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18‐334‐cr
United States v. Whitaker
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 ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 21st day of December, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
GUIDO CALABRESI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 18‐334
ASHLEY K. WHITAKER,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
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FOR APPELLANT: Lisa A. Peebles, Federal Public Defender,
Melissa A. Tuohey, Assistant Federal Public
Defender, Syracuse, NY.
FOR APPELLEE: Grant C. Jaquith, United States Attorney,
with Lisa M. Fletcher and Rajit S. Dosanjh,
Assistant United States Attorneys,
Northern District of New York, Syracuse,
NY.
Appeal from a judgment of the United States District Court for the
Northern District of New York (Hurd, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.
Ashley K. Whitaker appeals from a judgment of the United States District
Court for the Northern District of New York (Hurd, J.) revoking his supervised
release and sentencing him to twenty‐four months’ imprisonment followed by
eight years’ supervised release. Whitaker’s sentence resulted from violations of
the terms of his supervised release following a conviction for receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) for which he was
originally sentenced to 120 months’ imprisonment followed by a ten‐year term of
supervised release in the Northern District of New York. We assume the parties’
familiarity with the underlying facts and procedural history.
Less than one year into Whitaker’s supervised release, the Probation Office
for the Northern District petitioned the district court to revoke his supervised
release, alleging seven violations of the conditions of his supervision. The
Probation Office asserted that Whitaker made false statements in a written
monthly report, in violation of 18 U.S.C. § 1001, and failed to register his e‐mail
account with the New York State sex offender registry in violation of state law.
The Probation Office also alleged Whitaker secretly possessed internet‐capable
devices, failed to report an encounter with police, failed to submit a written
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report, failed to truthfully answer inquiries by his probation officer, and traveled
outside of the Northern District of New York without authorization.
At a hearing, Whitaker admitted the charged violations. Based on
Whitaker’s violations, criminal history, and repeated dishonesty, the court
adhered to the undisputed guideline range of eighteen to twenty‐four months.
Accordingly, the court sentenced Whitaker to twenty‐four months’ imprisonment
to be followed by eight years supervised release.
Whitaker argues that his sentence is substantively unreasonable because
the district court incorrectly balanced the severity of his violations against
mitigating factors set forth at Whitaker’s hearing. We disagree. The district
court did not abuse its discretion by sentencing Whitaker to a within‐guidelines
sentence.
We review a sentence for substantive reasonableness “under a deferential
abuse‐of‐discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see
United States v. Betts, 886 F.3d 198, 201 (2d Cir. 2018). “[W]hen conducting
substantive review, we take into account the totality of the circumstances, giving
due deference to the sentencing judge’s exercise of discretion, and bearing in
mind the institutional advantages of district courts.” United States v. Cavera,
550 F.3d 180, 190 (2d Cir. 2008) (in banc). A sentence is substantively
unreasonable “only if it cannot be located within the range of permissible
decisions.” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (internal
quotation marks and citations omitted). “[I]n the overwhelming majority of
cases, a Guidelines sentence will fall comfortably within the broad range of
sentences that would be reasonable in the particular circumstances.” United
States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006), abrogated on other grounds by
Rita v. United States, 551 U.S. 338, 364 (2007).
1. The district court was required to “sanction primarily the defendant’s
breach of trust, while taking into account, to a limited degree, the seriousness of
the underlying violation and the criminal history of the violator.” See U.S.S.G.
ch. 7, pt. A, intro. comment. 3(b). Whitaker argues that the court excessively
relied on the underlying violations and criminal history. The record does not
support this argument. The district court stressed Whitaker’s breach of trust,
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identifying “the big problem” as Whitaker’s “lying to [his] Probation Officer all of
the time.” JA 83‐84. Whitaker’s probation officer testified that Whitaker was
“impossible to deal with” because he “lied and lied and tried to cover up even
small violations.” Id. at 84.
2. Whitaker contends that the district court failed to account for “the nature
and circumstances of the offense and the circumstances of the defendant,” as
required by 18 U.S.C. § 3553(a)(1). Specifically, the district court is said to have
given insufficient weight to the challenges he faced in the Northern District of
New York, far from family or any support network. However, “the requirement
to consider § 3553(a) factors is not synonymous with any requirement that a
particular factor be given determinative or dispositive weight in the identification
of the appropriate sentence.” United States v. Verkhoglyad, 516 F.3d 122, 131
(2d Cir. 2008) (internal quotation marks omitted) (emphasis in original). We
“give due deference” to the district court, and do not consider what weight we
ourselves give each factor. Gall, 552 U.S. at 51.
This is not the exceptional case in which the decision “cannot be located
within the range of permissible decisions.” Whitaker’s sentence is fully
supported by the record. The district court considered the § 3553(a) factors,
bearing in mind Whitaker’s health and distance from home, and recommended
Whitaker’s transfer closer to his family. The court also took account of the
severity of Whitaker’s violations and his criminal history in sentencing him
within a range that is not disputed. Accordingly, we conclude that Whitaker’s
sentence falls within the broad range of permissible decisions available to the
district court.
We have considered Whitaker’s remaining arguments and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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