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United States v. Degroate

United States Court of Appeals, Second Circuit

October 4, 2019

United States of America, Appellee,
v.
Lameik Degroate, aka La Gunz, Defendant-Appellant,

          Submitted: September 16, 2019

          On Appeal from the United States District Court for the Northern District of New York

         Defendant-Appellant Lameik Degroate ("Degroate") appeals from a judgment of the United States District Court of the Northern District of New York (Thomas J. McAvoy, Judge) sentencing him to an 18-month term of imprisonment following a second revocation-of- supervised-release hearing. Degroate argues that the District Court abused its discretion by denying him an opportunity to present a mitigation witness at his revocation hearing. He further argues that his sentence is procedurally unreasonable because one of the conditions that he admitted to violating was imposed unlawfully. Specifically, he claims that the District Court impermissibly delegated its judicial authority to the U.S. Probation Office when it imposed a special curfew condition, and that Degroate's subsequent violations of this curfew condition were not a proper basis for revoking his supervised release. Finally, Degroate argues that his above-guideline sentence is substantively unreasonable because the District Court placed undue weight on his perceived dangerousness and failed to account for other mitigating factors. For the reasons set forth below, we find no merit in

         Degroate's arguments. Accordingly, we AFFIRM the District Court's judgment.

          Karen Folster Lesperance, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney, Northern District of New York, Albany, NY, for Appellee.

          James P. Egan, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, NY, for Defendant- Appellant.

          Before: Newman, Cabranes, and Lynch, Circuit Judges.

          José A. Cabranes, Circuit Judge

         Defendant-Appellant Lameik Degroate ("Degroate") appeals from a judgment of the United States District Court of the Northern District of New York (Thomas J. McAvoy, Judge) sentencing him to an 18-month term of imprisonment following a second revocation-of- supervised-release hearing. Degroate argues that the District Court abused its discretion by denying him an opportunity to present a mitigation witness at his revocation hearing. He further argues that his sentence is procedurally unreasonable because one of the conditions that he admitted to violating was imposed unlawfully. Specifically, he claims that the District Court impermissibly delegated its judicial authority to the U.S. Probation Office ("USPO" or "Probation Office") when it imposed a special curfew condition, and that Degroate's subsequent violations of this curfew condition were not a proper basis for revoking his supervised release. Finally, Degroate argues that his above-guideline sentence is substantively unreasonable because the District Court placed undue weight on his perceived dangerousness and failed to account for other mitigating factors. For the reasons set forth below, we find no merit in Degroate's arguments. Accordingly, we AFFIRM the District Court's judgment.

         I. BACKGROUND

         On March 28, 2012, Degroate was charged in a two-count indictment with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d) (Count One), and conspiring to distribute and possess with the intent to distribute 280 grams or more of a mixture or substance containing cocaine base (crack), in violation of 21 U.S.C. § 846 (Count Two). On April 26, 2013, pursuant to a written plea agreement, Degroate pleaded guilty to Count One of the indictment. On September 9, 2013, he was sentenced to a 73-month term of imprisonment, to be followed by a three-year term of supervised release. On April 14, 2015, pursuant to 18 U.S.C. § 3582(c)(2), [1] the District Court reduced Degroate's sentence to a 63-month term of imprisonment followed by a three-year term of supervised release based on a retroactive lowering of the applicable sentencing guideline range authorized by new legislation.

         A. Revocation of Degroate's First Term of Supervised Release

         Degroate completed his term of imprisonment and commenced supervision on November 18, 2016. Two months later, Degroate violated the terms of his supervised release by testing positive for alcohol. Degroate would subsequently accumulate seven violations of supervised release.[2] In response to these violations, and upon consent, the District Court modified Degroate's conditions of supervised release to include a temporary curfew and participation in a mental health program and residential "reentry" program. Degroate was soon removed from the reentry program for, inter alia, threatening a staff member with shooting sounds and statements such as "you're going to get yours" and "[you're a] dead man walking."[3]

         On August 28, 2017, the USPO filed a petition to revoke Degroate's supervised release. At the October 10, 2017 revocation hearing, Degroate admitted to three violations of the conditions of his supervised release: (1) failing to complete a four-month residential reentry program; (2) associating with felons; and (3) failing to report contact with police to the USPO. The District Court revoked Degroate's supervised release and sentenced him to imprisonment for a term of eight months, to be followed by a 24-month term of supervised release.[4] In addition to the standard conditions of supervised release, the District Court also required that Degroate "comply with a curfew commencing on a date and under conditions to be set by the probation officer."[5] Degroate did not object to this special condition at the revocation hearing.

         B. Degroate Violates the Conditions of his Second Term of Supervised Release

         Degroate commenced his second term of supervised release on April 27, 2018. Approximately three weeks later, Degroate was interviewed by local police at a strip club, where he had been associating with a twice-convicted felon past curfew. On June 5, 2018, he consented to a modification of the terms of his supervision. Specifically, Degroate agreed to comply with a renewed two-month curfew "commencing on a date and under conditions to be set by the probation officer."[6] He further consented to the use of "[l]ocation and/or monitoring technology" to monitor his compliance with the curfew.[7] On June 6, 2018, the District Court ordered the agreed-upon modifications to the terms of supervised release.

         On June 29, 2018, the USPO received an alert from the electronic monitoring company that Degroate had been tampering with his monitoring bracelet. The USPO would later learn that Degroate had in fact used a screwdriver to remove the pins from his ankle bracelet. Degroate was immediately summoned to the Probation Office, where he was equipped with a new bracelet and instructed to remain on "lock-down" for the weekend. Degroate left his home twice during the lock-down: once on June 30 to visit a private residence and the Family Dollar store, and again on July 1 to sit on his back porch in order to escape the heat of his nonair-conditioned home.

         On July 2, 2018, the Probation Office filed a second petition to revoke Degroate's supervised release based on three violations: (1) location monitoring violations; (2) a curfew violation; and (3) association with a felon.

         C. Degroate's Second Revocation Hearing and Sentencing

         The District Court held a final supervised release revocation hearing on July 20, 2018, at which Degroate admitted to the electronic monitoring violations and the curfew violation.

         Before delivering his argument concerning sentencing, Degroate's counsel requested that Degroate's mother be given the opportunity to speak. Judge McAvoy declined this request, explaining that while "[i]t's not that she wouldn't have something that I would want to hear . . . over the 32 years that I have been doing this, we have never allowed . . . somebody [to] speak on behalf of the defendant unless that somebody were representing him as counsel or in another capacity."[8] Judge McAvoy further explained that allowing the defendant's friends and relatives to speak would lead to something "like a trial to listen to other people tell us about what their opinion would be as to what I should do with the defendant."[9] As Judge McAvoy concluded, "the rule has been, and it's never been breached, that at sentencing, no one but the defendant [and] defense counsel can speak - and the victims, of course, have a statutory right to speak. . . . That's the rule and we have to follow the rule. I just don't want to be inundated with 50 other people."[10] Degroate's counsel thanked the District Court for its consideration and proceeded to request that the District Court sentence Degroate to time-served or a below-guideline sentence. The Government, in turn, requested a sentence of "at least 10 months if not an above-guideline sentence."[11] The District Court ultimately sentenced Degroate to an above-guideline sentence of 18 months' imprisonment, to be followed by a 10-month term of supervised release.[12]

         On appeal, Degroate contends that his 18-month sentence is both procedurally and substantively unreasonable. First, he argues that the District Court procedurally erred by declining counsel's request to have Degroate's mother address the court at the July 20, 2018 revocation hearing. Second, he claims that the District Court impermissibly delegated its judicial authority to the Probation Office when it imposed a curfew "commencing on a date and under conditions to be set by the probation officer," and that any subsequent violation of this invalid condition was not a proper basis for revocation. Finally, Degroate challenges the substantive reasonableness of his above-guideline sentence, claiming that the District Court focused exclusively on the seriousness of Degroate's offense without taking into account mitigating factors such as the nature and circumstances of the offense and the history and characteristics of the defendant.

         II. DISCUSSION

         A. Standards of Review

         "We review the procedural and substantive reasonableness of a sentence under a deferential abuse-of-discretion standard."[13] As we have frequently observed, "[a] district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions."[14]

         "A district court commits procedural error where it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence."[15]

         In examining the substantive reasonableness of a sentence, we review the length of the sentence imposed to determine whether it cannot be located within the range of permissible decisions."[16] We focus in particular on a "district court's explanation of its sentence in light of the factors contained in 18 U.S.C. § 3553(a), "[17] and "whether a factor relied on by a sentencing court can bear the weight assigned to it."[18] Our review for substantive reasonableness is "particularly deferential," and we have said that will set aside a sentence as substantively unreasonable if it is "so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing [it] to stand would damage the administration of justice."[19]

         Finally, where a defendant fails to raise his procedural objections at the time of sentencing, we review for plain error.[20] "To establish plain error, a defendant must demonstrate that: "(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the [defendant's] substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings."[21]

         B. Procedural Reasonableness

         1. Denying Degroate's Mother an Opportunity to Address the District Court at the July 20, 2018 Revocation Hearing

         Degroate contends that the District Court abused its discretion by denying his mother an opportunity to address the court at his July 20, 2018 revocation hearing. Degroate failed to object to this alleged procedural error. Accordingly, we review for plain error.

         Pursuant to Federal Rule of Criminal Procedure 32.1(b)(2)(E), a supervisee must be given "an opportunity to make a statement and present any information in mitigation" at his revocation hearing. Degroate contends that the phrase "any information in mitigation" requires that he be allowed to present live testimony from friends or family members who can speak to Degroate's character. We conclude that a supervisee's right of allocution at his revocation hearing does not include the right to call character witnesses.

         In 2005, Rule 32.1(b)(2)(E) was amended to explicitly recognize a supervisee's right to allocution at a revocation hearing. Prior to this amendment, Courts of Appeals had divided on the question of whether, in the absence of an explicit provision for allocution rights, a supervisee was entitled to present mitigating information at a revocation hearing. Those courts that had upheld such a right had done so by incorporating the right of allocution under Rule 32-which governs post-conviction sentencing-into Rule 32.1. But as one Court of Appeals observed, the problem with the incorporation approach was that it would require application of other provisions specifically applicable to sentencing proceedings under Rule 32, but not expressly contemplated by Rule 32.1.[22]

         The Advisory Committee on Rules of Criminal Procedure (the "Committee") sought to remedy this issue by amending Rule 32.1 to explicitly provide for a supervisee's right to allocution at his revocation hearing.[23] But there is no indication that in so doing, the Committee intended to expand the scope of the right to allocution at Rule 32.1(b)(2) revocation hearings beyond what a defendant is entitled to at a Rule 32 post-conviction sentencing.

         Rule 32 gives only four parties an explicit right to speak at sentencing: the defendant's attorney, the defendant, the Government, and any victims who may be present. [24] Other Courts of Appeals to have confronted the question of whether Rule 32 admits other character witnesses an opportunity to speak at sentencing has concluded that it does not, and we agree.[25] To allow such testimony would potentially result in a mini-trial of the defendant's character following the trial of his guilt.

         Moreover, the text of Rule 32.1(b)(2)(E) entitles the defendant to "present any information in mitigation" (emphasis added); it does not give him the right to dictate the means by which such information is presented. That language clearly distinguishes the right to present information from the supervisee's opportunity to "make a statement," i.e., to speak, at a hearing. The District Court here did not prevent Degroate from including letters from family members (including his mother) or others as part of his written sentencing ...


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