21-1496 United States v. Forde
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, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 7th day of June, two thousand twenty-two. 4 5 PRESENT: 6 ROSEMARY S. POOLER, 7 ROBERT D. SACK, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 21-1496 18 19 RICARDO FORDE, 20 21 Defendant-Appellant. 22 _____________________________________ 23 24 FOR DEFENDANT-APPELLANT: ALLEGRA GLASHAUSSER, Assistant 25 Federal Defender, Appeals Bureau, 26 Federal Defenders of New York, Inc., 27 New York, N.Y. 28 29 FOR APPELLEE: ANDREW D. WANG (Saritha Komatireddy, 30 on the brief), Assistant United States 31 Attorney, for Breon Peace, United States 32 Attorney for the Eastern District of New 33 York, Brooklyn, N.Y. 1 Appeal from a judgment of the United States District Court for the Eastern District of New
2 York (Amon, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 On January 3, 2019, Defendant Ricardo Forde pled guilty to one count of being a felon in
6 possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to fourteen
7 months’ imprisonment and three years of supervised release. Forde’s conditions of supervised
8 release required him to maintain full-time employment, to refrain from committing another crime,
9 and to avoid associating with a member or associate of any criminal street gang. In the months
10 following his release, the U.S. Probation Office filed eight charges against Forde alleging
11 violations of supervised release. These included using controlled substances, resisting arrest,
12 obstructing governmental administration, failing to secure full-time employment, and associating
13 with gang members.
14 On March 15, 2021, Forde pleaded guilty to three of these charges. Specifically, he
15 allocuted to committing the crimes of resisting arrest and obstructing governmental administration
16 under state law, as well as failing to secure full-time employment after release. On June 14, 2021,
17 the district court sentenced Forde to six months of incarceration and an additional two-year term
18 of supervised release—a sentence within the Guidelines range of five to eleven months’
19 imprisonment. Forde filed a timely notice of appeal, and now argues that his sentence was
20 procedurally and substantively unreasonable. We assume the parties’ familiarity with the
21 underlying facts, procedural history of the case, and issues on appeal.
22 I. Procedural Reasonableness
23 When reviewing a sentence for procedural reasonableness, we “check the sentence to
2 1 ensure . . . that the district court followed the right steps in imposing it.” United States v. Ramos,
2 979 F.3d 994, 998 (2d Cir. 2020). “A district court commits procedural error when it fails to
3 calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing
4 Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence
5 based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United
6 States v. Traficante, 966 F.3d 99, 102 (2d Cir. 2020) (internal quotation marks omitted) (alteration
7 in original). We “apply a lenient abuse-of-discretion standard,” which “requires us to take into
8 account the totality of the circumstances, giving due deference to the sentencing judge’s exercise
9 of discretion, and bearing in mind the institutional advantage of the district courts.” Ramos, 979
10 F.3d at 998 (internal quotation marks omitted). “Where, as here, a defendant does not object at
11 sentencing to a district court’s failure to explain its reasoning, we review the procedural challenge
12 for plain error.” United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020). 1
13 In sentencing a defendant for a violation of supervised release, a district court must weigh
14 several factors including “the nature and circumstances of the offense,” “the history and
15 characteristics of the defendant,” “the need for the sentence imposed . . . to protect the public,”
16 and “the need to avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a); see id. § 3583(e).
17 “[T]he degree of specificity required for [the court’s] reasons behind [such a] sentence is less than
18 that for plenary sentencing . . . .” Smith, 949 F.3d at 66. Further, “a sentence for a violation of
19 supervised release should primarily sanction the defendant’s ‘breach of trust,’ not the conduct
20 constituting the violation itself.” Ramos, 979 F.3d at 1002 (citation omitted); see also United
1 Under plain-error review, the “defendant must establish four elements: (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Ramos, 979 F.3d at 998 (internal quotation marks omitted).
3 1 States v. Edwards, 834 F.3d 180, 194 (2d Cir. 2016) (“[T]he critical ‘subject under consideration’
2 at a revocation proceeding is more than a charged violation; it is the breach of trust manifested by
3 the violation, a matter often dependent on attending circumstances.” (citing U.S.S.G. ch. 7, pt. A.,
4 introductory cmt. 3(b)).
5 Forde argues that his sentence was procedurally unreasonable because “the court focused
6 heavily on unproven allegations” that he was associating with gang members. Appellant’s Br. at
7 21. Forde emphasizes that he did not plead guilty to this charge and contends that the district
8 court should not have relied on these allegations without first holding a factual hearing. We
9 disagree that his sentence was procedurally unreasonable.
10 First, even if we were to assume that the district court erred by relying on the U.S. Probation
11 Office’s allegations concerning Forde’s association with gang members, Forde could not show
12 plain error because the court’s sentence was supported by more than those allegations. At
13 sentencing, the district court referenced the undisputed facts that Forde tested positive for
14 marijuana, “a whole series” of curfew violations, the “obstruction of justice” and “resisting arrest”
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21-1496 United States v. Forde
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, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 7th day of June, two thousand twenty-two. 4 5 PRESENT: 6 ROSEMARY S. POOLER, 7 ROBERT D. SACK, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 21-1496 18 19 RICARDO FORDE, 20 21 Defendant-Appellant. 22 _____________________________________ 23 24 FOR DEFENDANT-APPELLANT: ALLEGRA GLASHAUSSER, Assistant 25 Federal Defender, Appeals Bureau, 26 Federal Defenders of New York, Inc., 27 New York, N.Y. 28 29 FOR APPELLEE: ANDREW D. WANG (Saritha Komatireddy, 30 on the brief), Assistant United States 31 Attorney, for Breon Peace, United States 32 Attorney for the Eastern District of New 33 York, Brooklyn, N.Y. 1 Appeal from a judgment of the United States District Court for the Eastern District of New
2 York (Amon, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 On January 3, 2019, Defendant Ricardo Forde pled guilty to one count of being a felon in
6 possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to fourteen
7 months’ imprisonment and three years of supervised release. Forde’s conditions of supervised
8 release required him to maintain full-time employment, to refrain from committing another crime,
9 and to avoid associating with a member or associate of any criminal street gang. In the months
10 following his release, the U.S. Probation Office filed eight charges against Forde alleging
11 violations of supervised release. These included using controlled substances, resisting arrest,
12 obstructing governmental administration, failing to secure full-time employment, and associating
13 with gang members.
14 On March 15, 2021, Forde pleaded guilty to three of these charges. Specifically, he
15 allocuted to committing the crimes of resisting arrest and obstructing governmental administration
16 under state law, as well as failing to secure full-time employment after release. On June 14, 2021,
17 the district court sentenced Forde to six months of incarceration and an additional two-year term
18 of supervised release—a sentence within the Guidelines range of five to eleven months’
19 imprisonment. Forde filed a timely notice of appeal, and now argues that his sentence was
20 procedurally and substantively unreasonable. We assume the parties’ familiarity with the
21 underlying facts, procedural history of the case, and issues on appeal.
22 I. Procedural Reasonableness
23 When reviewing a sentence for procedural reasonableness, we “check the sentence to
2 1 ensure . . . that the district court followed the right steps in imposing it.” United States v. Ramos,
2 979 F.3d 994, 998 (2d Cir. 2020). “A district court commits procedural error when it fails to
3 calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing
4 Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence
5 based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United
6 States v. Traficante, 966 F.3d 99, 102 (2d Cir. 2020) (internal quotation marks omitted) (alteration
7 in original). We “apply a lenient abuse-of-discretion standard,” which “requires us to take into
8 account the totality of the circumstances, giving due deference to the sentencing judge’s exercise
9 of discretion, and bearing in mind the institutional advantage of the district courts.” Ramos, 979
10 F.3d at 998 (internal quotation marks omitted). “Where, as here, a defendant does not object at
11 sentencing to a district court’s failure to explain its reasoning, we review the procedural challenge
12 for plain error.” United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020). 1
13 In sentencing a defendant for a violation of supervised release, a district court must weigh
14 several factors including “the nature and circumstances of the offense,” “the history and
15 characteristics of the defendant,” “the need for the sentence imposed . . . to protect the public,”
16 and “the need to avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a); see id. § 3583(e).
17 “[T]he degree of specificity required for [the court’s] reasons behind [such a] sentence is less than
18 that for plenary sentencing . . . .” Smith, 949 F.3d at 66. Further, “a sentence for a violation of
19 supervised release should primarily sanction the defendant’s ‘breach of trust,’ not the conduct
20 constituting the violation itself.” Ramos, 979 F.3d at 1002 (citation omitted); see also United
1 Under plain-error review, the “defendant must establish four elements: (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Ramos, 979 F.3d at 998 (internal quotation marks omitted).
3 1 States v. Edwards, 834 F.3d 180, 194 (2d Cir. 2016) (“[T]he critical ‘subject under consideration’
2 at a revocation proceeding is more than a charged violation; it is the breach of trust manifested by
3 the violation, a matter often dependent on attending circumstances.” (citing U.S.S.G. ch. 7, pt. A.,
4 introductory cmt. 3(b)).
5 Forde argues that his sentence was procedurally unreasonable because “the court focused
6 heavily on unproven allegations” that he was associating with gang members. Appellant’s Br. at
7 21. Forde emphasizes that he did not plead guilty to this charge and contends that the district
8 court should not have relied on these allegations without first holding a factual hearing. We
9 disagree that his sentence was procedurally unreasonable.
10 First, even if we were to assume that the district court erred by relying on the U.S. Probation
11 Office’s allegations concerning Forde’s association with gang members, Forde could not show
12 plain error because the court’s sentence was supported by more than those allegations. At
13 sentencing, the district court referenced the undisputed facts that Forde tested positive for
14 marijuana, “a whole series” of curfew violations, the “obstruction of justice” and “resisting arrest”
15 violations, and his failure to “maintain full-time verifiable employment” after “fail[ing] to comply
16 with [Probation’s job readiness] program.” App’x at 60, 63. The court then concluded that all
17 this conduct demonstrated “a substantial breach of trust.” Id. at 64. The district court also
18 weighed mitigating circumstances, stating that it was “willing to give in the sentence some
19 consideration to the fact that” Forde was “making efforts” at rehabilitation. Id. at 65. But the
20 court noted that it could not “ignore [Forde’s] earlier serious breaches of trust in terms of the nature
21 of the violations he pled guilty to.” Id. The district court’s sentence was thus amply supported
22 by numerous uncontested violations and Forde has failed to show that any error affected his
23 substantial rights.
4 1 Second, we are unpersuaded by Forde’s reliance on United States v. Aldeen, 792 F.3d 247
2 (2d Cir. 2015). In Aldeen, we vacated a sentence for violation of supervised release after
3 concluding that the district court relied on certain unproven facts without making specific findings
4 or holding a factual hearing and significantly deviated upwards from the Guidelines range. Id. at
5 254. The district court was thus “obliged to provide a more substantial justification for its
6 sentence.” Id. Here, Forde’s sentence of six months’ imprisonment and two years of supervised
7 release straddled the lower end of the applicable five-to-eleven months Guidelines range. The
8 district court was not required to meet a heightened burden to justify Forde’s sentence, and, as
9 noted above, the sentence imposed was justified by Forde’s undisputed conduct.
10 II. Substantive Reasonableness
11 To establish substantive unreasonableness, a defendant must show that a sentence “cannot
12 be located within the range of permissible decisions available to a sentencing court.” United
13 States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015) (internal quotation marks omitted). “[W]e will
14 set aside only those sentences that are so shockingly high, shockingly low, or otherwise
15 unsupportable as a matter of law that allowing them to stand would damage the administration of
16 justice.” United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (internal quotation marks
17 omitted).
18 The district court’s sentence here was substantively reasonable. Forde pleaded guilty to
19 several supervised release violation charges. His charges for resisting arrest and obstructing
20 governmental administration stemmed from his encounter with the New York Police Department
21 (“NYPD”) on April 7, 2020, when NYPD officers found him drinking alcohol from an open
22 container outside his home. The police officers called out to him, and Forde fled inside his
23 apartment. When the officers pursued him, he resisted arrest. Forde also failed to cooperate with
5 1 efforts by the U.S. Probation Office to assist him in securing employment. 2 Lastly, Forde
2 conceded at sentencing to failing to abide by his curfew and testing positive for marijuana. Forde
3 had repeatedly shown a disregard for his supervised release conditions. The district court’s
4 sentence of six months’ imprisonment and two years of supervised release—the lower end of the
5 five-to-eleven months Guidelines range—was not outside the range of permissible decisions.
6 ***
7 We have considered all of Forde’s remaining arguments and find them to be without merit.
8 Accordingly, we AFFIRM the judgment of the district court.
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk of Court
2 Forde first missed an appointment with a job readiness program scheduled by the U.S. Probation Office. Then, after he finally reached out for vocational training, Forde failed to appear for his scheduled training appointment.