17-2317-cr United States v. Kessler
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of May, two thousand eighteen.
PRESENT: REENA RAGGI, GERARD E. LYNCH, Circuit Judges, LEWIS A. KAPLAN,* District Judge. ---------------------------------------------------------------------- UNITED STATES OF AMERICA, Appellee, v. No. 17-2317-cr
ANDREW KESSLER, Defendant-Appellant. ---------------------------------------------------------------------- FOR APPELLANT: Arkady Bukh, Bukh Law Firm, PLLC, Brooklyn, New York.
FOR APPELLEE: Dominic Gentile, Daniel B. Tehrani, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.
* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. Appeal from a final judgment of the United States District Court for the Southern
District of New York (Kimba M. Wood, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on July 26, 2017, is AFFIRMED.
Defendant Andrew Kessler stands convicted, based on his guilty plea, of theft of
government funds, see 18 U.S.C. § 641, arising from his fraudulent procurement of
$13,961 in unemployment insurance benefits from the New York State Department of
Labor while Kessler was, in fact, working as a federal correctional officer. He here
appeals the resulting six-month, within-Guidelines prison sentence as procedurally and
substantively unreasonable. In reviewing a sentence for reasonableness, we employ “a
particularly deferential form of abuse-of-discretion review.” United States v. Cavera,
550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc). In doing so here, we assume the
parties’ familiarity with the facts and record of prior proceedings, which we reference
only as necessary to explain our decision to affirm.
1. Procedural Error
A district court commits procedural error where it fails to consider the factors
enumerated in 18 U.S.C. § 3553(a), rests its sentence on a clearly erroneous finding of
fact, or fails adequately to explain its chosen sentence. See id. at 190. Kessler urges us
to identify procedural error in the district court’s failure (1) to explain its sentence and
(2) to consider (a) the need to avoid unwarranted sentence disparities pursuant to 18
U.S.C. § 3553(a)(6), and (b) the cost of incarceration. We need not resolve the parties’
2 dispute over whether a plain error standard of review applies to these challenges because
we identify no procedural error at all.
The record refutes Kessler’s argument that the district court failed to explain its
reasons for imposing a sentence at the top end of the zero-to-six-months’ Guidelines
range. The district court explained that Kessler’s crime was a “serious one” because, for
more than a year, he regularly submitted false certifications in which he lied about his
employment status. App’x 36. The fact that Kessler perpetrated that fraud while
employed as a federal corrections officer and using government computers was, in the
district court’s view, especially “brazen.” Id. That was sufficient to explain why the
district court thought a sentence at the high end of the Guidelines range was warranted.
See Rita v. United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge decides simply to
apply the Guidelines to a particular case, doing so will not necessarily require lengthy
explanation.”); accord United States v. Cavera, 550 F.3d at 193 (holding that for
within-Guidelines sentences, “a brief statement of reasons will generally suffice where
the parties have addressed only ‘straightforward, conceptually simple arguments’ to the
sentencing judge” (quoting 551 U.S. at 356)).
Nor can Kessler demonstrate procedural error in the district court’s failure to
reference the need to avoid sentencing disparities. See United States v. Villafuerte, 502
F.3d 204, 210 (2d Cir. 2007) (“[W]e do not insist that the district court . . . discuss every
§ 3553(a) factor individually.”); United States v. Fernandez, 443 F.3d 19, 29 (2d Cir.
2006) (“We have imposed no . . . requirement that a sentencing judge precisely identify
either the factors set forth in § 3553(a) or specific arguments bearing on the
3 implementation of those factors in order to comply with her duty to consider all the
§ 3553(a) factors.” (emphasis in original)), abrogated on other grounds by Rita v. United
States, 551 U.S. 338.
United States v. Merced, 603 F.3d 203 (3d Cir. 2010), relied on by Kessler, is not
to the contrary and, in any event, cannot supersede this court’s own controlling precedent.
In Merced, the Third Circuit identified error in the district court’s failure to consider the
need to avoid unwarranted sentencing disparities “in the face of a colorable
argument”—there by the government—“that an outside-the-Guidelines sentence will
create a risk of such disparities.” Id. at 222. Here, Kessler acknowledges that he never
raised a disparity concern in the district court, much less argued unwarranted disparity in
a within-Guidelines sentence. As this court has observed, “[w]hen an argument is not
raised during a sentencing proceeding, the failure of the sentencing judge to address that
argument explicitly on the record does not, without more, demonstrate a failure of
consideration by the judge.” United States v. Fernandez, 443 F.3d at 29 (emphasis
omitted). Insofar as Kessler argues that he satisfies the requisite “more” identified in
Fernandez by showing that his sentence is, in fact, unreasonably disparate, we reject that
argument in addressing his substantive challenge.
Precedent also defeats Kessler’s cost-of-incarceration argument. See United
States v. Park, 758 F.3d 193, 198 (2d Cir. 2014) (holding that “statute [does not] permit
the sentencing court to balance the cost of incarceration against the sentencing goals
enumerated in § 3553(a)”).
Thus, Kessler fails to show any procedural error in his sentence.
4 2. Substantive Unreasonableness
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17-2317-cr United States v. Kessler
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of May, two thousand eighteen.
PRESENT: REENA RAGGI, GERARD E. LYNCH, Circuit Judges, LEWIS A. KAPLAN,* District Judge. ---------------------------------------------------------------------- UNITED STATES OF AMERICA, Appellee, v. No. 17-2317-cr
ANDREW KESSLER, Defendant-Appellant. ---------------------------------------------------------------------- FOR APPELLANT: Arkady Bukh, Bukh Law Firm, PLLC, Brooklyn, New York.
FOR APPELLEE: Dominic Gentile, Daniel B. Tehrani, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.
* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. Appeal from a final judgment of the United States District Court for the Southern
District of New York (Kimba M. Wood, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on July 26, 2017, is AFFIRMED.
Defendant Andrew Kessler stands convicted, based on his guilty plea, of theft of
government funds, see 18 U.S.C. § 641, arising from his fraudulent procurement of
$13,961 in unemployment insurance benefits from the New York State Department of
Labor while Kessler was, in fact, working as a federal correctional officer. He here
appeals the resulting six-month, within-Guidelines prison sentence as procedurally and
substantively unreasonable. In reviewing a sentence for reasonableness, we employ “a
particularly deferential form of abuse-of-discretion review.” United States v. Cavera,
550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc). In doing so here, we assume the
parties’ familiarity with the facts and record of prior proceedings, which we reference
only as necessary to explain our decision to affirm.
1. Procedural Error
A district court commits procedural error where it fails to consider the factors
enumerated in 18 U.S.C. § 3553(a), rests its sentence on a clearly erroneous finding of
fact, or fails adequately to explain its chosen sentence. See id. at 190. Kessler urges us
to identify procedural error in the district court’s failure (1) to explain its sentence and
(2) to consider (a) the need to avoid unwarranted sentence disparities pursuant to 18
U.S.C. § 3553(a)(6), and (b) the cost of incarceration. We need not resolve the parties’
2 dispute over whether a plain error standard of review applies to these challenges because
we identify no procedural error at all.
The record refutes Kessler’s argument that the district court failed to explain its
reasons for imposing a sentence at the top end of the zero-to-six-months’ Guidelines
range. The district court explained that Kessler’s crime was a “serious one” because, for
more than a year, he regularly submitted false certifications in which he lied about his
employment status. App’x 36. The fact that Kessler perpetrated that fraud while
employed as a federal corrections officer and using government computers was, in the
district court’s view, especially “brazen.” Id. That was sufficient to explain why the
district court thought a sentence at the high end of the Guidelines range was warranted.
See Rita v. United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge decides simply to
apply the Guidelines to a particular case, doing so will not necessarily require lengthy
explanation.”); accord United States v. Cavera, 550 F.3d at 193 (holding that for
within-Guidelines sentences, “a brief statement of reasons will generally suffice where
the parties have addressed only ‘straightforward, conceptually simple arguments’ to the
sentencing judge” (quoting 551 U.S. at 356)).
Nor can Kessler demonstrate procedural error in the district court’s failure to
reference the need to avoid sentencing disparities. See United States v. Villafuerte, 502
F.3d 204, 210 (2d Cir. 2007) (“[W]e do not insist that the district court . . . discuss every
§ 3553(a) factor individually.”); United States v. Fernandez, 443 F.3d 19, 29 (2d Cir.
2006) (“We have imposed no . . . requirement that a sentencing judge precisely identify
either the factors set forth in § 3553(a) or specific arguments bearing on the
3 implementation of those factors in order to comply with her duty to consider all the
§ 3553(a) factors.” (emphasis in original)), abrogated on other grounds by Rita v. United
States, 551 U.S. 338.
United States v. Merced, 603 F.3d 203 (3d Cir. 2010), relied on by Kessler, is not
to the contrary and, in any event, cannot supersede this court’s own controlling precedent.
In Merced, the Third Circuit identified error in the district court’s failure to consider the
need to avoid unwarranted sentencing disparities “in the face of a colorable
argument”—there by the government—“that an outside-the-Guidelines sentence will
create a risk of such disparities.” Id. at 222. Here, Kessler acknowledges that he never
raised a disparity concern in the district court, much less argued unwarranted disparity in
a within-Guidelines sentence. As this court has observed, “[w]hen an argument is not
raised during a sentencing proceeding, the failure of the sentencing judge to address that
argument explicitly on the record does not, without more, demonstrate a failure of
consideration by the judge.” United States v. Fernandez, 443 F.3d at 29 (emphasis
omitted). Insofar as Kessler argues that he satisfies the requisite “more” identified in
Fernandez by showing that his sentence is, in fact, unreasonably disparate, we reject that
argument in addressing his substantive challenge.
Precedent also defeats Kessler’s cost-of-incarceration argument. See United
States v. Park, 758 F.3d 193, 198 (2d Cir. 2014) (holding that “statute [does not] permit
the sentencing court to balance the cost of incarceration against the sentencing goals
enumerated in § 3553(a)”).
Thus, Kessler fails to show any procedural error in his sentence.
4 2. Substantive Unreasonableness
In challenging his six-month sentence as substantively unreasonable, Kessler bears
a heavy burden because we will set aside a sentence on that ground “only in exceptional
cases” where the challenged sentence cannot be located within the wide range of
permissible decisions available to the district court, United States v. Cavera, 550 F.3d at
189, that is, where “the sentence imposed was shockingly high, shockingly low, or
otherwise unsupportable as a matter of law,” United States v. Rigas, 583 F.3d 108, 123
(2d Cir. 2009). That is not this case.
While we do not presume that Kessler’s sentence is substantively reasonable
simply because it falls within his Guidelines range, “we recognize that in 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. Ryan, 806 F.3d 691, 695 (2d Cir. 2015) (internal quotation marks
omitted). No different conclusion is warranted here. The district court carefully
considered the various mitigating factors presented by Kessler, including testaments to
his character, his law-abiding history, his family situation, and the “stress” he reported
experiencing as a correctional officer. Nevertheless, it determined that these factors
were outweighed by the “severity,” indeed the “brazen[ness]” of his crime: defrauding a
state unemployment program using federal resources while employed as a federal
correctional officer. App’x 36. On this record, we cannot conclude that a six-month
Guidelines sentence falls outside the “broad range” of sentences available to the district
5 court so as to be considered substantively unreasonable. United States v. Jones, 531
F.3d 163, 174 (2d Cir. 2008).
In urging otherwise, Kessler asserts unwarranted sentencing disparity, pointing to
thirteen defendants in the Southern District of New York who were sentenced more
leniently than he following § 641 convictions. The argument fails because none of the
comparators presented the aggravating factor of particular concern to the district court
here: a federal employee charged with upholding the law using government property
repeatedly to violate the law. See United States v. Fernandez, 443 F.3d at 32 (rejecting
disparity challenge where there was no showing that defendants were “similarly
situated”); see also United States v. Coppola, 671 F.3d 220, 254 (2d Cir. 2012) (holding
that even though defendant and his comparators were “convicted for racketeering and
other crimes related to the Gambino family’s control over parts of the New York
waterfront, that is not enough by itself to compel a conclusion that they were similarly
situated . . . in the many respects that can inform a sentence”). Thus, Kessler’s disparity
challenge fails.
Nor can Kessler fault the weight assigned to various mitigating factors to establish
the substantive unreasonableness of his sentence. The record shows that the district
court considered these factors, but deemed them outweighed by the seriousness of the
crime and the identified aggravating circumstances. Where, as here, “the ultimate
sentence is reasonable and the sentencing judge did not commit procedural error in
imposing that sentence, we will not second guess the weight (or lack thereof) that the
judge accorded to a given factor or to a specific argument made pursuant to that factor.”
6 See United States v. Perez-Frias, 636 F.3d 39, 42–43 (2d Cir. 2011) (internal quotation
marks omitted); see United States v. Coppola, 671 F.3d at 254 (holding that defendant
“may disagree with how the court weighed the seriousness of his criminal conduct as
against [mitigating factors], but he can hardly show that his criminal conduct was not
sufficiently severe to bear the weight assigned it under the totality of the circumstances”).
Thus, Kessler fails to show that his six-month sentence is substantively
unreasonable.
We have considered Kessler’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of conviction is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of Court