United States v. Frink

• Decision Date: 31 March 2021
• Docket Number: 20-1088-cr
• Parties: United States of America, Appellee, v. Glyn Frink, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

United States of America, Appellee, v. Glyn Frink, Defendant-Appellant.

20-1088-cr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

March 31, 2021

AMENDED 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 TO 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 31^st day of March, two thousand twenty-one.

PRESENT: PIERRE N. LEVAL, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges.

FOR APPELLEE:

Richard D. Belliss, Thomas R. Sutcliffe, Assistant United States Attorneys, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY.

FOR DEFENDANT-APPELLANT:

Molly K. Corbett, James P. Egan, Assistant Federal Public Defenders, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Northern District of New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED in part, and the case is REMANDED for further proceedings.

Defendant Glyn Frink appeals from a judgment, entered on March 18, 2020, by the United States District Court for the Northern District of New York (Hurd, J.), following his guilty plea to a violation of his term of supervised release for failing to report to his probation officer within 72 hours of his release from prison. Frink's original federal offense was failing to register as a sex offender and failing to update his registration, in violation of 18 U.S.C. § 2250(a), for which he was sentenced to a 27-month term of imprisonment and a 15-year term of supervised release. Since his release on the underlying federal conviction in 2013, Frink's supervised release has been revoked by the district court on 6 prior occasions with the imposition of terms of imprisonment ranging from 6 months to 15 months, and additional periods of supervision to follow on each occasion.

With respect to this seventh revocation of supervised release, the district court sentenced Frink to an above-Guidelines sentence of 24 months' imprisonment, which was the statutory maximum, to be followed by 15 years of additional supervised release. On appeal, Frink argues that both the term of imprisonment and the length of the additional supervised release are procedurally and substantively unreasonable. Frink also challenges the imposition of four special conditions of supervised release. We assume the parties' familiarity with the underlying facts,procedural history, and issues on appeal, to which we refer only as necessary to explain our decision.

Sentences arising from violations of supervised release are reviewed under the same standard "as for sentencing generally: whether the sentence imposed is reasonable." United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (internal quotation marks omitted). Reasonableness is reviewed under a "deferential abuse-of-discretion standard," see United States v. Betts, 886 F.3d 198, 201 (2d Cir. 2018), and the Second Circuit reviews the reasonableness of a district court's sentence both procedurally and substantively, see United States v. Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008) (en banc). Thus, we have explained that "we will affirm [a] district court's sentence [for violation of supervised release] provided (1) the district court considered the applicable policy statements; (2) the sentence is within the statutory maximum; and (3) the sentence is reasonable." United States v. Anderson, 15 F.3d 278, 284 (2d Cir. 1994).

I. Procedural Reasonableness

Frink argues that "[t]he district court failed to provide an adequate statement with specificity as to its reasons for imposing the above guidelines sentence of imprisonment combined with a 15-year term of supervised release." Appellant's Br. at 17.

A sentence is procedurally unreasonable if the district court "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." United States v. Genao, 869 F.3d 136, 140 (2d Cir. 2017) (internal quotation marks omitted). The district court must state its reasons for sentencing in open court in compliance with 18 U.S.C. § 3553(c), but this Court haspreviously declined to prescribe "precise standards for assessing whether a district court's explanation of its reason for imposing a non-Guidelines sentence is sufficient." United States v. Pereira, 465 F.3d 515, 524 (2d Cir. 2006). Importantly, this Court does not reduce the district courts to "robotic incantations" when sentencing just to assure that they have weighed the Section 3553(a) factors. United States v. Smith, 949 F.3d 60, 66 (2d Cir 2020). Moreover, we "require less rigorous specificity where . . . a court sentences a defendant for violation of supervised release." United States v. Aldeen, 792 F.3d 247, 253 (2d Cir. 2015), superseded by statute on other grounds as recognized in Smith, 949 F.3d at 64.

Where, as here, the defendant failed to raise the procedural objections at sentencing, we review such challenges for plain error. United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). Under the plain error standard, Frink bears the burden of showing: (1) there was an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected his 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. United States v. Marcus, 560 U.S. 258, 262 (2010). We conclude that the district court's reasoning satisfies plain error review both as to the 24-month term of imprisonment and the 15-year additional term of supervised release.

With respect to the term of imprisonment, the district court explicitly noted its awareness of the policy statements contained in the United States Sentencing Guidelines, which resulted in an advisory Guidelines range of 6 to 12 months' imprisonment in connection with a Grade C violation. After hearing from the parties, the district then explained its reasons for imposing the above-Guidelines sentence for this violation, which involved failing to report to his probationofficer within 72 hours of his release from prison on his sixth revocation, and then being a fugitive for approximately 9 months before his arrest.¹ More specifically, the district court emphasized that this was the seventh time that Frink had violated the terms and conditions of his supervised release, and noted the extraordinary nature of Frink's non-compliance over many years. See App'x at 70 ("[Y]ou've been before me more times than anyone else in my career on the federal bench . . . ."). In addition, the district court directly addressed Frink's statement that he was now prepared to comply with the law, by reiterating that Frink had said "the same thing to [the court] a number of times before" and, as a result, the district court was "a little bit skeptical" of Frink's new promises. Id. at 70-71. As to Frink's argument that he did not "[get] in trouble" during the many months that he failed to report to his probation officer, id. at 70, the district court noted that Frink's claim could not be verified, because he thwarted any supervision during that time by not reporting. In short, we conclude that the district court did not plainly err in providing its reasoning with respect to the above-Guidelines sentence.

We similarly conclude that there was no procedural plain error with respect to the imposition of an additional 15-year term of supervised release. We have never held that, in explaining its sentence, a district court is required to provide separate reasoning for the length of supervised release. See, e.g., United States v. Sero, 520 F.3d 187, 192 (2d Cir. 2008) (rejecting a challenge to the "seemingly automatic" term of supervised release where the term was consistent with the Guidelines and the district court discussed the Section 3553(a) factors generally); see also United States v. Mostafa, 299 F. App'x 86, 88 (2d Cir. 2008) ("In the absence of authority to thecontrary, we cannot conclude that the District Court's imposition of a term of supervised release without a separate statement [of supporting reasons] in open court constituted an error of any kind that affected substantial rights."); accord United States v. Durand, 616 F. App'x 22, 23 (2d Cir. 2015). Moreover, in this case, the district court's factual basis for the length of supervised release was apparent from the record based upon its reasoning as to the sentence overall, as well as the fact that the district court had originally imposed a 15-year supervised release term, and Frink had demonstrated the continuing need for long-term supervision due to his 6 revocations over a period of approximately 6 years. In fact, for each of the prior revocations, the district court consistently imposed an additional term of supervision of between 10 and 14 years. Accordingly, we conclude that the failure to separately explain the reason for Frink's length of additional supervised release was not plain error.

II. Substantive Reasonableness

Frink also...