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United States of America v. Rasheed Freeman

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


January 12, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
RASHEED FREEMAN, DEFENDANT-APPELLANT.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Sandra L. Townes, Judge).

10-1550-cr

United States v. Freeman

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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 3 on the 12th day of January, two thousand twelve.

PRESENT: JOSE A. CABRANES, ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.

Defendant-appellant Rasheed Freeman appeals from a judgment of the District Court 8 sentencing him principally to a term of imprisonment of 346 months. We assume the parties' familiarity 9 with the underlying facts and the procedural history, some of which we briefly reiterate here. 10 This appeal arises out of Freeman's conviction at trial on charges of armed bank robbery, in 11 violation of 18 U.S.C. § 2113(a) ("Count 1"), and using a firearm during a crime of violence, in violation 12 of 18 U.S.C. § 924(c)(1)(A)(ii) ("Count 2"). At sentencing, the District Court deemed Freeman a career 13 offender based on his three previous felony convictions pursuant to U.S.S.G. §§ 4B1.1. The court then 14 considered each of the factors it was required to consider under 18 U.S.C. § 3553(a), and explained that 15 Freeman's extensive criminal and prison disciplinary record demonstrated a pattern of increasing 16 violence and lack of rehabilitation. Determining that a lengthy prison sentence was necessary to prevent 17 Freeman from committing other violent crimes, the court sentenced him to 262 months on Count 1, 18 and an additional 84 months--the statutory minimum sentence--on Count 2. The total term of 19 imprisonment imposed was 346 months.

20 Freeman argues on appeal only that (1) the District Court abused its discretion by not finding 21 that the career offender guideline overstated his previous criminal activity and therefore granting a 22 discretionary downward departure from the suggested Guidelines range of imprisonment, and (2) the 23 sentence imposed was substantively unreasonable because the term of imprisonment is significantly 24 longer than the terms of imprisonment he served for his prior felonies. Freeman does not dispute the 25 District Court's finding that his criminal history qualifies him as a career offender.

1 Because Freeman appears to challenge only the substantive reasonableness of his sentence,*fn1 we 2 review the District Court's decision for abuse of discretion. Gall v. United States, 552 U.S. 38, 41 (2007); 3 United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). "[O]ur role in sentencing appeals is to 4 'patrol the boundaries of reasonableness, while heeding the Supreme Court's renewed message that 5 responsibility for sentencing is placed largely in the precincts of the district courts.'" United States v. 6 Rigas, 583 F.3d 108, 122 (2d Cir. 2009) (quoting Cavera, 550 F.3d at 191). However, appellate review has 7 not become, and should not become, a "rubber stamp." Id. (quoting United States v. Rattoballi, 452 F.3d 8 127, 132 (2d Cir. 2006)). Instead, our review for substantive reasonableness is similar to the 9 consideration, in a motion for a new trial in a criminal case following a jury verdict, of "whether a guilty 10 verdict is manifestly unjust," id., and in adjudicating "intentional torts by state actors," where we ask 11 whether the state's action shocks the conscience, id. Accordingly, a "trial court's sentencing decision will 12 be classified as error only if it 'cannot be located within the range of permissible decisions.'" United States 13 v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (quoting Cavera, 550 F.3d at 189).

14 Freeman aims his substantive unreasonableness argument primarily at the District Court's 15 substantial reliance upon his criminal history in calculating his sentence. "At the substantive stage of 16 reasonableness review, an appellate court may consider whether a factor relied on by a sentencing court 17 can bear the weight assigned to it." Cavera, 550 F.3d at 191. In doing so, "we do not consider what 18 weight we would ourselves have given a particular factor. Rather, we consider whether the factor, as 19 explained by the district court, can bear the weight assigned it under the totality of circumstances in the 20 case." Id. (citation omitted). Given the reasons for sentence stated by the District Court on the record, 21 we cannot find that the sentence imposed gives inappropriate weight to Freeman's criminal history, or 22 indeed to any particular factor. On the contrary, the sentence appears to have been carefully tailored to 1 Freeman's unique circumstances in order to achieve the goals of sentencing.*fn2 See id. (a deferential 2 approach "is consistent with and follows from the Supreme Court's emphasis on 'individualized' 3 sentencing"). 4 In conclusion, we have considered each of the defendant's arguments and found them to be 5 meritless. Accordingly, we AFFIRM the April 8, 2010 judgment of the District Court.

FOR THE COURT,

Catherine O'Hagan Wolfe, Clerk of Court


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