UNITED STATES v. GRAHAM (2021)

United States Court of Appeals, Second Circuit.2021-03-25No. No. 20-888

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Holding. The judgment of the district court is affirmed because the record demonstrates that the district court did consider the substance of Graham's request for a departure under the family circumstances policy statement, even though its language suggested otherwise, and therefore did not impose a procedurally unreasonable sentence.

Kimone Graham appealed her 18-month sentence for drug importation and distribution offenses, arguing that the district court failed to consider a relevant Sentencing Guidelines policy statement regarding family circumstances when imposing her sentence. Under 18 U.S.C. § 3553(a)(5), sentencing judges must consider pertinent policy statements issued by the Sentencing Commission. Graham had requested a downward departure based on Guideline § 5H1.6, which permits courts to consider family ties and responsibilities in certain circumstances. She specifically argued that her role as sole caregiver for three children who would be separated and placed in different countries warranted such a departure.

The district court's language during and after sentencing suggested it had not considered the policy statement, stating that the fifth § 3553(a) factor was "not pertinent" to Graham's sentencing. However, the appellate court examined the full record and concluded that the district court had actually engaged with Graham's request. The court had reviewed her sentencing submission detailing the family circumstances, heard arguments from both parties about whether incarceration would cause extraordinary hardship, and demonstrated familiarity with the specific details of her situation. Although the district court may not have formally recognized § 5H1.6 as a "policy statement," it had substantively considered the content of Graham's request.

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Key issues

Whether a district court must explicitly acknowledge a sentencing policy statement to satisfy § 3553(a)(5)
What showing of consideration suffices when a court's statements appear to reject a policy statement argument
Whether extraordinary family hardship warrants departure from sentencing guidelines based on caretaking responsibilities

Procedural posture

Graham appealed from a district court judgment imposing an 18-month sentence for federal drug offenses, challenging the sentencing as procedurally unreasonable.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

SUMMARY ORDER

Defendant-Appellant Kimone Graham appeals from a judgment of the district court, entered on March 9, 2020, sentencing Graham principally to 18 months of imprisonment for her convictions for importing cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(3), and possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). She argues that the district court failed to consider a pertinent policy statement of the United States Sentencing Guidelines, in violation of 18 U.S.C. § 3553(a)(5), and thereby imposed a procedurally unreasonable sentence. We assume the readers familiarity with the record.

We review Grahams sentence for procedural reasonableness, which is “akin to a ‘deferential abuse-of-discretion standard.’ ”

United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We will find a sentence procedurally unreasonable if the district court “fail[ed] to consider the § 3553(a) factors.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). The fifth § 3553(a) factor requires the district court to consider “any pertinent policy statement” issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(5).

Graham requested that the district court grant a downward departure under one such policy statement, U.S.S.G. § 5H1.6, which states: “In sentencing a defendant convicted of an offense other than [certain offenses involving minors], family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted.” Grahams sentencing submission quoted Application Note 1(B) to § 5H1.6

and argued that the separation and placement of her children, for whom she had been the sole caregiver, in three different homes and three different countries warranted a departure. Graham raised the issue again during sentencing proceedings, referencing the application note and her family situation. The Government argued that the impact of incarceration on Grahams family would not be extraordinary because Graham generally had been unemployed since February 2018, and there was no corroboration of her claims that her children were in precarious placements.

The district court made a statement during sentencing that, Graham argues, suggested that the court did not consider § 3553(a)(5) or § 5H1.6. When it reached the fifth factor in its orderly assessment of the § 3553(a) factors, the court stated, “That is not pertinent to the defendants sentencing in this case.” Appx at 91. In its written memorandum, the court reiterated that “[t]he fifth § 3553(a) factor, requiring the Court to evaluate ‘any pertinent policy statement[’] ․ is not pertinent to Defendants sentencing.” Id. at 105 (quoting 18 U.S.C. § 3553(a)(5)). Graham argues on appeal that these statements show that the district court failed to consider the fifth factor and § 5H1.6, and thereby imposed a procedurally unreasonable sentence.

The record on the whole makes clear, however, that the court was well aware that Graham was asking for a departure under § 5H1.6 based on her family circumstances. We presume that the district court “has considered all arguments properly presented ․ unless the record clearly suggests otherwise.” Cossey, 632 F.3d at 87 (internal quotation marks and citation omitted). Here, the record demonstrates that the district court did consider Grahams request for a departure under § 5H1.6. The court acknowledged receiving Grahams sentencing submission, which detailed her request, and the court heard the parties argue whether Grahams incarceration would cause extraordinary hardship. The court acknowledged that the case would have an impact on Grahams family, and the court demonstrated its familiarity with the details of Grahams family situation during her sentencing presentation and when imposing sentence. The court also acknowledged that Graham had requested a downward departure, and the courts written sentencing memorandum cited the page in Grahams sentencing submission that quoted § 5H1.6 and detailed her family circumstances. Although the district court may not have realized that § 5H1.6 was a “policy statement,” we are satisfied that the district court did consider the substance of Grahams request and therefore did not impose a procedurally unreasonable sentence.

We have considered Grahams remaining arguments and conclude that they provide no basis for reversal. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOOTNOTES

. Because Graham preserved her claim of error by informing the court that she wished it to downwardly depart from the Guidelines range pursuant to § 5H1.6, Application Note 1(B), we review her sentence for reasonableness, and not under the tougher standard of plain error review urged by the Government. See United States v. Fernandez, 443 F.3d 19, 28 (2d Cir. 2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

. “A departure under this policy statement based on the loss of caretaking or financial support of the defendants family requires ․ the presence of the following circumstances: (i) The defendants service of a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essential financial support, to the defendants family[;] (ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily incident to incarceration for a similarly situated defendant. For example, the fact that the defendants family might incur some degree of financial hardship or suffer to some extent from the absence of a parent through incarceration is not in itself sufficient as a basis for departure because such hardship or suffering is of a sort ordinarily incident to incarceration[;] (iii) The loss of caretaking or financial support is one for which no effective remedial or ameliorative programs reasonably are available, making the defendants caretaking or financial support irreplaceable to the defendants family[; and] (iv) The departure effectively will address the loss of caretaking or financial support.” U.S.S.G. § 5H1.6, Application Note 1(B).