U.S. v. Brockett
| Decision Date | 26 April 2011 |
| Docket Number | No. 10-2701-cr,10-2701-cr |
| Parties | UNITED STATES OF AMERICA, Appellee, v. JAMALI BROCKETT, AKA Marley, AKA Ms. King, AKA Young King, Defendant-Appellant, HASSAN PORTEE, Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
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 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 26th day of April, two thousand eleven.
Present:
For Appellee:
Licha M. Nyiendo, Assistant United States Attorney (Peter A. Norling, Assistant United States Attorney, of counsel), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y.
For Defendant-Appellant:
Mitchell A. Golub, Golub & Golub LLP, New York, N.Y.
(Johnson, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-Appellant Jamali Brockett appeals from the July 2, 2010 judgment of the district court, following a plea of guilty, convicting him of sex trafficking of a child, in violation of 18 U.S.C. § 1591(a)(1) (Counts One and Two), sex trafficking of a woman, in violation of 18 U.S.C. § 1591(a)(1) (Counts Three and Four), and transporting an individual across state lines for the purposes of prostitution, in violation of 18 U.S.C. § 2421 (Counts Six and Seven). He was sentenced principally to concurrent terms of incarceration of 287 months on Counts One through Four and of 120 months on Counts Six and Seven. On appeal, Brockett argues that his sentence is procedurally unreasonable on the ground that the district court failed to take into consideration his personal characteristics, and substantively unreasonable in view of (1) the purported lack of an empirical basis for the sex-trafficking Guidelines, (2) the purported disparity between the Guidelines sentence and the sentence he would have received had he been prosecuted by New York State authorities, and (3) the Guidelines' calling for a sentence substantially in excess of the mandatory minimum. We assume the parties' familiarity with the facts and procedural history of this case.
We review all sentences using a "deferential abuse-of-discretion standard." United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). Our review has "two components: procedural review and substantive review." Id. We "first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range." Gall v. United States, 552 U.S. 38, 51 (2007). We then review the substantive reasonableness of the sentence and reverse only when the district court's sentence "cannot be located within the range of permissible decisions." Cavera, 550 F.3d at 189 (internal quotation marks omitted).
We turn first to Brockett's argument that his sentence is procedurally unreasonable on the ground that the district court failed to take into account his personal history and characteristics, as required by 18 U.S.C. § 3553(a)(1). Title 18, section 3553(a) of the United States Code identifies factors that the district court "shall consider" when deciding upon a defendant's sentence. 18 U.S.C. § 3553(a). "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 implementation of those factors in order to comply with her duty to consider all the § 3553(a) factors along with the applicable Guidelines range." United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006) (emphasis in original). "As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration has occurred." United States v. Rose, 496 F.3d 209, 213 (2d Cir. 2007) (internal quotation marks omitted). Our presumption of compliance with § 3553 has particular force when "the sentencing judge makes abundantly clear that she has read the relevant submissions and that she has considered the § 3553(a) factors." Fernandez, 443 F.3d at 29.
We have no difficulty concluding that the district court complied with the requirements of § 3553(a). During the sentencing hearing, defense counsel related to the court the defendant's personal history, including, among other things, the fact that he had proferred information to the government, his minimal criminal history, and his acceptance of responsibility. The district court explicitly stated that it had received Brockett's sentencing submission, which also detailed his history and family circumstances. The record reflects that the district court, which expressly referred to the § 3553(a) factors, "[was] aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable," and Brockett has not pointed to anything in the record that would "indicate[] misunderstanding about such materials or misperception about their relevance." Rose, 496 F.3d at 213 (internal quotation marks omitted). Accordingly, we conclude that Brockett's procedural challenge to his sentence is without merit.
We turn next to Brockett's argument that his sentence is substantively unreasonable on the ground that the Guidelines applicable to sex-trafficking crimes are not supported by sufficient empirical data. We...
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