United States v. Milligan

628 F. App'x 62

• Court: Court of Appeals for the Second Circuit
• Decided: January 19, 2016
• Docket: 15-505-cr
• Status: Unpublished

Opinion

PRESENT: PETER W. HALL, SUSAN L. CARNEY, Circuit Judges, and BRIAN M. COGAN, District Judge. *

SUMMARY ORDER

Defendant-Appellant Maurice L. Milli-gan appeals his sentence of 90' months’ imprisonment for one count of possession of a firearm transported in interstate commerce by a person previously convicted of a felony, 18 U.S.C. §§ 922(g), 924(a)(2). We assume the parties’ familiarity with the underlying facts and the procedural history of this case.

On appeal Milligan challenges only the substantive reasonableness of his sentence. He contends that the district court placed undue weight on his involvement in an April 22, 2013 dispute at a convenience store in New London, Connecticut, which culminated in gunfire and resulted in Milli-gan being convicted of attempted assault in state court.

We review a district court’s sentence for reasonableness “under a ‘deferential abuse-of-discretion . standard.’ ” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “This form of appellate scrutiny encompasses two components: procedural review and substantive review.” Id.

Substantive review examines the length of the sentence imposed. United States v. Bonilla, 618 F.3d 102, 108-09 (2d Cir. 2010). We will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v. Lifshitz, 714 F.3d 146, 149 (2d Cir.2013) (per curiam) (quoting Cavera, 550 F.3d at 189). A sentence falls outside the range of permissible decisions when, “although procedurally correct, [affirming] would nonetheless damage the administration of justice because 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).

“The particular weight to be afforded aggravating and mitigating factors ‘is a matter firmly committed to the discretion of the sentencing judge,’ with appellate courts seeking to ensure only that a factor ‘can bear the weight assigned it under the totality of circumstances in the case.’” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir.2012) (internal citations omitted). “In making that determination, we are mindful that ‘facts may frequently point in different directions so that even experienced district judges may reasonably differ, not only in their findings of fact, but in the relative weight they accord competing circumstances.’” Id. (quoting United States v. Jones, 531 F.3d 163, 174 (2d Cir.2008)).

Milligan has failed to show that his sentence “cannot be located within the range of permissible decisions.” Lifshitz, 714 F.3d at 149. Milligan contends that his involvement in the April 22, 2013 incident at the convenience store cannot bear the weight assigned to it because the district court relied almost exclusively on this uncharged incident and failed to consider Milligan’s many positive achievements (e.g., work history, community involvement, and familial support). Milligan’s involvement in the incident at the convenience store, however, was one of many factors that the district court considered in imposing the sentence — a sentence that was at the lower end of the uncontested Guidelines range. Milligan has not established that the “sentence imposed was shockingly high ... or otherwise unsupportable as a matter of law.” Rigas, 583 F.3d at 123.

We have considered all of Milligan’s arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court.

* The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation.