United States of America v. Martini (Cassesse)

Filing

AMENDED OPINION, by JON RAK BDP, FILED.[673075] [10-2210]

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10-2210-cr
United States of America v. Martini (Cassesse)

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UNITED STATES COURT OF APPEALS

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FOR THE SECOND CIRCUIT

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August Term 2011

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Argued: April 3, 2012

Decided: July 11, 2012

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Amended: July 25, 2012

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Docket No. 10-2210-cr

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

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Before: NEWMAN, KATZMANN, and PARKER, Circuit Judges.

v.
MICHAEL CASSESSE,
Defendant-Appellant.1
- - - - - - - - - - - - - - - - - - - - - - - -

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Appeal from the June 19, 2009, judgment of the United States

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District Court for the Eastern District of New York (Sandra L. Townes,

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District

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conviction and for a violation of supervised release.

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contends that twelve months of imprisonment imposed for the supervised

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release violation should have been subtracted from the lifetime term

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of supervised release also imposed for tht violation.

Judge),

sentencing

the

Defendant for a racketeering
The Defendant

Affirmed.

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Bradley W. Moore, New Haven, Conn.
(James I. Glasser, Wiggin and
Dana LLP, New Haven, Conn., on
the
brief),
for
DefendantAppellant.

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The Clerk is directed to change the official caption.

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Amy Busa, Asst. U.S. Atty., Brooklyn,
N.Y. (Loretta E. Lynch, U.S.
Atty. for the Eastern District of
New York, Peter A. Norling, Asst.
U.S. Atty., Brooklyn, N.Y., on
the brief), for Appellee.
JON O. NEWMAN, Circuit Judge.

10

This appeal presents primarily the almost metaphysical issue of

11

how, if at all, a lifetime term of supervised release, imposed for a

12

supervised release violation, should be reduced by the number of

13

months of a prison term imposed for that same violation, a subtraction

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we are willing to assume is required by the literal terms of the

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provisions governing supervised release.

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Cassesse appeals from the June 19, 2009, judgment of the District

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Court for the Eastern District of New York (Sandra L. Townes, District

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Judge) revoking his previous term of lifetime term of supervised

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release and sentencing him to a term of twelve months in prison

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followed by a renewed lifetime term of supervised release.

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Defendant-Appellant Michael

We affirm.

Background

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In 1987, Cassesse was convicted of conspiracy to distribute

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heroin and sentenced to five years’ probation. In 1991, he was

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convicted of possession with intent to distribute more than 500 grams

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of heroin and sentenced to 87 months of imprisonment, a consecutive

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term of 87 months for violating his probation, and a lifetime term of

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supervised release, the maximum possible term of supervised release

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under the statute. See 21 U.S.C. § 841(b)(1)(B) (1991).

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conditions of lifetime supervised release for the narcotics offense

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was that Cassesse refrain from new criminal conduct.
2

One of the

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In 2007, while Cassesse was out of prison but continuing to serve

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his term of supervised release, he was indicted on several new

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charges, including racketeering in violation of 18 U.S.C. § 1962.

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Cassesse was subsequently charged with violating a condition of

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supervised release by committing a new crime.

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plea to the racketeering charge, the District Court sentenced Cassesse

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for

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violation.

Following his guilty

both the racketeering conviction and the supervised-release

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Speaking with respect to the racketeering offense, Judge Townes

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noted that she had considered all of the submitted documents, all of

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the statements made by the defense, the United States Sentencing

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Guidelines (“the Guidelines”), and the factors enumerated by 18 U.S.C.

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§ 3553(a), including the Defendant’s history and characteristics, the

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nature of the crime committed, and the need for specific and general

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deterrence.

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was a violation of his term of supervised release:

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Judge Townes noted that Cassesse’s racketeering offense

He committed the crime to which he pled guilty [ i.e.,
racketeering] while serving . . . a term of supervised
release. Mr. Cassesse’s difficulties in life do not relieve
him of his responsibilities for [the consequences of]
continuing to commit crimes. [Yet] he does not seem
inclined to stop. . . . I truly don’t think Mr. Cassesse
has fully accepted responsibility for his criminal conduct.
I believe he’s just been caught.
The

District

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imprisonment

and

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Court
three

imposed
years

of

a

sentence
supervised

of

90 months of

release

for

the

racketeering crime.

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Judge Townes next turned to the violation of supervised release.

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At this point the parties presented to the Court a plea agreement, in
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which Cassesse apparently agreed to plead guilty to the supervised

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release violation in exchange for the Government’s recommendation that

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any additional prison term for that violation be served concurrently

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with the 90-month racketeering sentence.

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relevant advisory range for the supervised release violation was six

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to twelve months of imprisonment.

The parties agreed that the

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The District Court accepted Cassesse’s guilty plea but rejected

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the parties’ recommendation of a concurrent term, imposing instead a

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sentence of twelve months of imprisonment for the supervised release

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violation

to

run

consecutively

to

the

90

month

term

for

the

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racketeering conviction.

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of lifetime supervised release for the narcotics violation, the

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District Court then imposed a new lifetime term of supervised release.

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Although Judge Townes provided no detailed explanation for the

Having revoked the previously imposed term

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sentence for the supervised release violation, she stated, “I have

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reviewed everything.”

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counsel objected to the lifetime term of supervised release but did

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not object either to the Court’s failure to subtract the twelve month

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term of imprisonment from it or to the brevity of the Court’s

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explanation of that term.

At the conclusion of the hearing, defense

Discussion

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A.

Standard of Review

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On appeal, sentences may be challenged for substantive and

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procedural reasonableness. See United States v. Verkhoglyad, 516 F.3d

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122, 127 (2d Cir. 2008).

Cassesse argues on appeal that the lifetime

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term of supervised release should somehow have been reduced by twelve

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months, which is a procedural objection.

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specifically object in the District Court to the lack of a twelve

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month reduction, we will assume that his general objection to the

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length of the new lifetime term comprehended this point.

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claim presents a question of statutory interpretation, we review the

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District Court’s decision de novo.

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676 F.3d 71, 76 (2d Cir. 2012).

Although Cassesse did not

Because this

See United States v. Aleynikov,

9

Cassesse also complains that the District Court inadequately

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explained its reasons for the lifetime term, which is a procedural

11

objection, and in the absence of any objection in the District Court,

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plain error review applies. See United States v. Villafuerte, 502 F.3d

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204, 208, 211 (2d Cir. 2007) (holding that “rigorous” plain error

14

analysis applies to unpreserved claims of procedural sentencing error

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under 18 U.S.C. § 3553(a) and (c)).2

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B. Whether and How to Reduce the Lifetime Term of Supervised Release

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Cassesse contends that the District Court erred when, after

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revoking his previously imposed term of lifetime supervised release

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for

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imprisonment and a new lifetime term of supervised release for the

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supervised release violation.

his

narcotics

offense,

it

imposed

both

twelve

months

of

More specifically, he contends that the

2

Although we have questioned the appropriateness of plain error
review where a sentencing error allegedly increased a sentence, see
United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002), we see
no reason to weaken the plain error standard where a court has
allegedly inadequately fulfilled a long-standing and uncomplicated
procedural requirement of sentencing. See Villafuerte, 502 F.3d at
208, 211.
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District Court was required by statute to deduct the former from the

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latter, limiting the supervised release term to something at least

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twelve months less than the “lifetime” maximum authorized for the

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narcotics violation for which his original term of supervised release

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was imposed.

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Sentencing for a violation of supervised release is governed by

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18 U.S.C. § 3583.

The parties agree that the relevant form of section

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3583 is the one that was in force in 1991, at the time that Cassesse

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was sentenced to his original lifetime term of supervised release. See

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United States v. Smith, 354 F.3d 171, 172 (2d Cir. 2003).

The version

11

of section 3583 in effect in 1991 provides in relevant part:
The court may . . . revoke a term of supervised release, and
require the person to serve in prison all or part of the
term of supervised release without credit for time
previously served on postrelease supervision, if it finds by
a preponderance of the evidence that the person violated a
condition of supervised release . . . .

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18 U.S.C. § 3583(e)(3) (1991).

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question of whether a renewed term of supervised release may be

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imposed in addition to a prison term as punishment for a supervised

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release violation.

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Supreme Court in Johnson v. United States, 529 U.S. 694 (2000),

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concluded that a court may “revoke the release term and require

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service of a prison term equal to the maximum authorized length of a

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term of supervised release.” id. at 705.

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because a term of supervised release “continues . . . after revocation

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even when part of it is served in prison, . . . the balance of it []

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remain[s]

effective

The 1991 version is silent on the

Interpreting this version of the statute, the

as

a

term

of
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Moreover, the Court added,

supervised

release when the

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incarceration is over[.]” Id. at 706.

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841(b)(1)(B) provided for the original term of supervised release and

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authorized a maximum term of lifetime supervised release.

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before Johnson was decided, but after Cassesse was sentenced, Congress

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amended the supervised release provisions to provide explicitly that

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a renewed term of supervised release may be imposed for a supervised

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release violation.

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of 1994, Pub. L. No. 103-322, § 110505, 108 Stat. 1796, 2017, codified

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at 18 U.S.C.

As we have noted, section

In 1994,

See Violent Crime Control and Law Enforcement Act

§ 3583(h).

The amending language not only authorized a

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renewed term of supervised release not to exceed the maximum allowable

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for

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relevant to this appeal, of a reduction of the maximum allowable term

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of supervised release by the length of time spent in prison for the

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supervised release violation.

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which provides:

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the

underlying

violation,

but

also

introduced

the

concept,

The amendment added section 3583(h),

When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment, the
court may include a requirement that the defendant be placed
on a term of supervised release after imprisonment. The
length of such a term shall not exceed the term of
supervised release authorized by statute for the offense
that resulted in the original term of supervised release,
less any term of imprisonment that was imposed upon
revocation of supervised release.
18 U.S.C. § 3583(h) (2012) (emphasis added).

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Both parties agree, in effect, that once the Supreme Court ruled

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in Johnson that a renewed term of supervised release may be imposed

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for violations that occurred under the 1991 version of section

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3583(e)(3), the imprisonment reduction concept of the later enacted

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section 3583(h) should apply to such a renewed term.

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reasons as follows:

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The Appellant

Under current law, “[t]he length of such a term of
supervised release shall not exceed the term of supervised
release authorized by statute for the offense that resulted
in the original term of supervised release, less any term of
imprisonment that was imposed upon revocation of supervised
release.” 18 U.S.C. § 3583(h); see also USSG § 7B1.3(g)(2).
The law in effect when Mr. Cassesse committed his narcotics
offense is to the same effect, even though the underlying
statutory basis is different. As the Supreme Court stated,
under Section 3583(e):
[I]t is not a “term of imprisonment” that is to
be served, but all or part of “the term of
supervised release.” But if “the term of
supervised release” is being served, in whole or
part, in prison, then something about the term of
supervised release survives the preceding order
of revocation.
Johnson, 529 U.S. at 705. Thus, if some “part” of the term
of supervised release is served in prison after a violation,
then the “part” of the term that remains after that prison
sentence is served is less than the whole, original release
term.
. . .
Thus, the pre-1994 Section 3583(e) and the current Section
3583(h) are in accord on this point. That is, any reimposed
supervised-release term must be reduced by the length of the
prison term the defendant serves for the violation.
Brief for Appellant at 14-16 (footnote omitted).
The Government essentially reaches the same result by contending

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that although “the pre-1994 version of § 3583(e) did not require

39

subtraction of the incarceratory sentence,” it did require that “the

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combined term of supervised release and incarceration did not exceed

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the original term of supervised release.” Brief for Appellee at 26.

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Thus, for example, if the prior term of supervised release was ten

43

years and the period of incarceration for the violation was one year,
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the only way the “combined term” could not exceed the original term is

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if the one year term of imprisonment is subtracted from the prior ten

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years of supervised release, yielding a maximum allowable renewed term

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of nine years.

5

The intriguing question is whether and how the prison term

6

reduction concept applies to a renewed lifetime term of supervised

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release.

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subtraction concept into an addition concept.

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although Cassesse’s one year term in prison plus the renewed lifetime

10

term of supervised release “may equal the original lifetime term of

11

supervised release, they do not exceed it.” Id.

The Government elides this question by converting the
It observes that

12

Cassesse advances the subtraction concept and insists that his

13

one year of imprisonment must somehow be subtracted from his lifetime

14

term of supervised release.

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contends that the lifetime term should be abandoned in favor of a

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fixed term of years from which the one year term of imprisonment would

17

be subtracted. See Brief for Appellant at 21.

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that the lifetime term of supervised release should be converted to

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the corresponding offense level 43 in the Sentencing Table of the

20

Sentencing Guidelines from which some appropriate reduction should be

21

made, after which the reduced offense level would presumably be

22

converted back into a term of years. Cf. United States v. Nelson, 491

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F.3d 344, 349 (7th Cir. 2007) (affirming conversion of mandatory life

24

sentence to offense level 43 and then reducing that level by 40

25

percent to reflect substantial assistance).

He suggests three techniques.

9

First, he

Second, he suggests

Third, he suggests that

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one year could be subtracted from his life expectancy at the time of

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sentencing.3

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Intriguing as are the question and some possible answers to it,

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we conclude that the more appropriate course is simply to recognize

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that this is one of those rare situations where Congress did not

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expect the literal terms of its handiwork to be applied to a lifetime

7

term of supervised release, even if we assume that the subtraction

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concept of section 3583(h) should be applied to a fixed term of

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supervised release imposed under the pre-1994 version of section

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3583(e)(3). Cf. Holy Trinity Church v. United States, 143 U.S. 457,

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472 (1892) (statute prohibiting prepayment of transportation of alien

12

into United States to perform service of any kind held inapplicable to

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church’s contract to bring resident of England to render service as

14

rector and pastor, even though contract was “within the letter” of

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statute).

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First,

it

is

highly

unlikely

that

Congress

expected

the

17

subtraction concept to be applied to a lifetime term of supervised

18

release.

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make a subtraction in some fashion, the judge could easily circumvent

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such a requirement by selecting a supervised release term of many

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years, 99 for example, and then imposing a term of “only” 98 years.

Second, even if a sentencing judge were to feel obliged to

3

A variant of Cassesse’s third suggestion was offered by the
Seventh Circuit, in the context of a reduction for substantial
assistance from a mandatory life sentence.
That Court suggested
making the substantial assistance reduction from 470 months, the
average life expectancy of federal defendants at the time of
sentencing, as determined by the United States Census Bureau. See
Nelson, 491 F.3d at 349-50.
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Third, use of the defendant’s life expectancy would introduce a

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variable bearing little, if any, relation to penological purposes for

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defendants who outlive their life expectancy and would introduce

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reverse age discrimination.

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term of supervised release was not unlawful. See United States v.

6

Rausch,

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impossible to predict the precise length of any individual’s life, a

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[supervised release] sentence of ‘life less two years[‘ imprisonment]’

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has only conceptual--not practical--meaning.”). But see United States

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v. Shorty, 159 F.3d 312, 316 (7th Cir. 1998) (“[T]he maximum amount of

11

supervised release possible would have been life minus the amount of

12

imprisonment imposed during the sentencing for revocation”; no method

13

of subtraction suggested).4

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C. Explanation of Sentence

638

F.3d

1296,

We conclude that the unadjusted lifetime

1303

(10th

Cir.

2011)

(“Because

it

is

15

Cassesse contends that the District Court committed procedural

16

error during the sentencing for his supervised release violation by

17

failing to consider the statutory factors required by 18 U.S.C.

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§ 3583(e) and by failing to explain the reasons for the sentence as

19

required by 18 U.S.C. § 3553(c).

The statutory requirements are set

4

We note that in a recent summary order,
United States v.
McNaught, 396 F. App’x 772 (2d Cir. 2010), our Court appeared to
endorse Cassesse’s argument. See id. at 774 (stating that section
3583(h) “required the district court to subtract Appellant’s term of
30 months’ imprisonment from the maximum lifetime term of supervised
release”). That statement, made without considering whether or how
such a subtraction should be made, was dictum; the holding was that a
five-year term of supervised release was lawful. In any event, the
summary order in McNaught was non-precedential. See 2d Cir. I.O.P.
32.1.1.
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out in the margin.5
The District Court’s failure to explicitly consider the section

3

3553(a) factors does not rise to the level of plain error.

“As long

4

as the judge is aware of both the statutory requirements and the

5

sentencing range or ranges that are arguably applicable, and nothing
5

Section 3583(e) requires courts to “consider[]” a subset of the
section 3553(a) factors, namely:
(1)
(2)

(4)

(5)
(6)
(7)

the nature and circumstances of the offense and the
history and characteristics of the defendant;
the need for the sentence imposed-. . .
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner;
. . .
the kinds of sentence and the sentencing range
established for-. . .
(B) in the case of a violation of . . . supervised
release, the applicable guidelines or policy
statements issued by the Sentencing Commission
pursuant to section 994(a)(3) of title 28 . . . ;
any pertinent policy statement . . . issued by the
Sentencing Commission . . . that . . . is in effect on
the date the defendant is sentenced[;]
the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
the need to provide restitution to any victims of the
offense.

18 U.S.C. § 3553(a).
Section 3553(c) provides:
The court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence.
18 U.S.C. § 3553(c).
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in the record indicates misunderstanding about such materials or

2

misperception about their relevance, we will accept that the requisite

3

consideration [required by 18 U.S.C. § 3583(e)] has occurred.” United

4

States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005).

5

every reason to believe that Judge Townes knew she had to consider,

6

and did consider, the relevant statutory factors.

7

considered nearly identical factors during her discussion of the

8

racketeering conviction that resulted from the same criminal acts.

9

During

that

discussion,

moreover,

she

commented

Here, there is

She thoroughly

on

Cassesse’s

10

supervised release violation and how that violation affected her

11

overall

12

offender.

13

violation itself, in lieu of a detailed explanation she stated

14

generally, “I have reviewed everything.”

15

that Judge Townes was aware of the appropriate policy statements and

16

the relevant advisory terms of imprisonment.

17

The

assessment

of

the

Defendant

as

an

unremorseful

repeat

Then, after turning specifically to the supervised release

Finally, the record shows

explanation requirement of section 3553(c) is also

18

sufficiently satisfied to preclude a finding of plain error.

19

3553(c) requires no specific formulas or incantations; rather, the

20

length and detail required of a district court’s explanation varies

21

according to the circumstances. See Villafuerte, 502 F.3d at 210.

22

Where, as here, the sentence concerns a violation of supervised

23

release and the ultimate sentence is within the recommended range

24

compliance with the statutory requirements can be minimal.

25

Verkhoglyad, 516 F.3d at 132-33 (“[A] court’s statement of its reasons

26

for going beyond non-binding policy statements in imposing a sentence
13

Section

,

See

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. . . need not be as specific as has been required when courts

2

departed from [G]uidelines . . . .” (emphases original)); Villafuerte,

3

502 F.3d at 210 (“When the district court imposes a Guidelines

4

sentence, it may not need to offer a lengthy explanation . . . .”).

5

Furthermore, section 3553(c) has likely been satisfied when a court’s

6

statements meet the goals “of (1) informing the defendant of the

7

reasons for his sentence, (2) permitting meaningful appellate review,

8

(3)

9

particular sentence, and (4) guiding probation officers and prison

10

officials in developing a program to meet the defendant’s needs.” Id.

11

The District Court adequately fulfilled its duties under the

enabling

the

public

to

learn

why

the

defendant

received

a

12

statute, and the error, if any, was not plain.

13

briefly described some reasons for her supervised release violation

14

sentence,

15

Cassesse’s cooperation because she had already given him credit for

16

that in her racketeering sentence and noting that Cassesse differed

17

from his co-defendants because he was the only one with a violation of

18

supervised release.

19

intertwined analysis of the supervised release violation and the

20

racketeering crime clearly provided a sufficient explanation of the

21

sentence she ultimately imposed for the violation.

stating

that

she

would

not

First, Judge Townes

reduce

the

sentence for

Second, and more importantly, Judge Townes’s

22

United States v. Lewis, 424 F.3d 239 (2d Cir. 2005), upon which

23

Cassesse principally relies, involved quite different circumstances.

24

First, in Lewis the District Court imposed a sentence above that

25

recommended by the relevant Sentencing Commission policy statements,

26

triggering a higher descriptive obligation on the part of the District
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Court.

Id. at 245; see 18 U.S.C. § 3553(c)(2) (requiring district

2

court to provide “the specific reason for the imposition of a sentence

3

different from that described” in the relevant policy statements or

4

Guidelines).

Second, unlike inLewis, Judge Townes provided a lengthy

5

explanation,

albeit

6

discussion of a different (but closely related) crime.

9

that

technically

occurred

during

the

Conclusion

7
8

one

For the foregoing reasons, the judgment of the District Court is
affirmed.

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11

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