United States v. Nesbitt

• Court: Court of Appeals for the Second Circuit
• Decided: November 26, 2018
• Docket: 17-2569-cr (L)
• Status: Unpublished

Opinion

17-2569-cr (L) United States v. Nesbitt

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 26th day of November, two thousand eighteen.

PRESENT: REENA RAGGI PETER W. HALL, RICHARD J. SULLIVAN, Circuit Judges.

---------------------------------------------------------------------- UNITED STATES OF AMERICA,

Appellee,

v. Nos. 17-2569-cr (L) 17-2604-cr (Con) KEESHAWN NESBITT, AKA BIG HOMIE,

Defendant-Appellant.

---------------------------------------------------------------------- FOR APPELLANT: ARTHUR R. FROST, Frost & Kavanaugh, P.C., Troy, New York.

FOR APPELLEE: CARINA H. SCHOENBERGER, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, New York.

1 Appeal from a judgment of the United States District Court for the Northern District of

New York (Kahn, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Keeshawn Nesbitt pled guilty without a plea agreement to three

counts of being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. §§

922(g), 924(a)(2). The district court sentenced him to 67 months’ imprisonment and 36

months’ supervised release on each of the three counts, to run concurrently. The court stated

that a sentence at the higher end of the applicable advisory Guidelines range was warranted

upon review of the 18 U.S.C. § 3553(a) factors because of Nesbitt’s criminal history and risk

to the community. Specifically, the court determined that “this sentence is sufficient, but not

greater than necessary, to meet the goals of sentencing, including the need for the sentence to

reflect the seriousness of the offense, promote the respect for the law and provide just

punishment for your offense and to afford adequate deterrence to criminal conduct, and finally

to protect the public from further crimes that you could commit.” J. App’x at 68. Defense

counsel made no objections.

Nesbitt challenges his 67-month sentence of imprisonment as substantively unreasonable.1

We assume the parties’ familiarity with the facts, record of prior proceedings, and arguments

on appeal, which we reference only as necessary to explain our decision to affirm.

1 Nesbitt’s brief states that the sentence imposed “was both procedurally and substantively unreasonable,” Appellant’s Br. at 4, but makes no argument as to how the sentence was procedurally unreasonable. We therefore have no argument to review on that issue.

2 The abuse of discretion “standard of review applies to appellate review of all sentencing

decisions.” Gall v. United States, 552 U.S. 38, 49 (2007). This Court has not decided whether

an abuse of discretion or plain error standard of review is to be applied where a substantive

reasonableness challenge is unpreserved, and we need not decide that question here because

Nesbitt’s challenge “fails on its merits.” United States v. Verkhoglyad, 516 F.3d 122, 134 (2d

Cir. 2008).

In determining whether a sentence imposed by the district court is substantively

reasonable, we are deferential and do not ask whether we would assign the same weight to a

factor the district court did. Instead, the inquiry is limited to whether that factor “can bear

the weight assigned it under the totality of circumstances in the case.” United States v.

Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc). “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. Ryan, 806 F.3d 691, 695

(2d Cir. 2015) (alteration omitted) (quoting United States v. Wagner-Dano, 679 F.3d 83, 95 (2d

Cir. 2012)). “[W]hile we have declined to adopt a per se rule, 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.” Id. (quoting

United States v. Ingram, 721 F.3d 35, 37 (2d Cir. 2013)).

The district court and the presentence report both calculated the guidelines range to be 57

to 71 months. At sentencing, the prosecution sought a guidelines range sentence and the

defense sought a term of 46 to 57 months. The district court’s sentence of 67 months’

imprisonment and 36 months of supervised release on each of the three counts, to run

3 concurrently, is certainly located within the range of permissible decisions. It is not

substantively unreasonable.

Nesbitt points us to other § 922(g) cases in which we have affirmed a lesser sentence and

argues that the circumstances of those cases were more egregious than those of the instant

case. See United States v. Thomas, 628 F.3d 64 (2d Cir. 2010); United States v. Spratley, 665 F.

App’x 97 (2d Cir. 2016) (summary order). This argument, however, misses the mark. As

an initial matter, this Court has also approved sentences in other § 922(g) cases that were

longer than the one imposed here. See, e.g., United States v. Butters, 588 F. App’x 12, 13 (2d Cir

2014) (summary order). Moreover, given that “a reviewing court’s concern about

unwarranted disparities is at a minimum when a sentence is within the Guidelines range,”

Nesbitt falls far short of his burden in establishing an abuse of discretion by the district court.

United States v. Irving, 554 F.3d 64, 76 (2d Cir. 2009) (internal quotation marks and citation

omitted). At bottom, it is not for us to substitute our own judgment for that of the trial

court. Cavera, 550 F.3d at 189.

We have considered all Nesbitt’s arguments and conclude that they are without merit.

Accordingly, we AFFIRM the amended judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court