UNITED STATES OF AMERICA v. JEFFREY McKIVER

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United States Court of Appeals, Second Circuit.

UNITED STATES OF AMERICA, Appellee, v. JEFFREY McKIVER, Defendant-Appellant.

No. 16-3809-cr

Decided: December 01, 2017

Present: ROBERT A. KATZMANN, Chief Judge, JOHN M. WALKER, JR., GUIDO CALABRESI, Circuit Judges. For Defendant-Appellant: Neil B. Checkman, Georgia J. Hinde, New York, NY. For Appellee: Jennifer Gachiri, Drew Skinner, Karl Metzner, Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant Jeffrey McKiver appeals from the judgment of the United States District Court for the Southern District of New York (Berman, J.) sentencing him principally to 68 months' imprisonment and five years of supervised release for one count of distributing and possessing with the intent to distribute over 100 grams of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). On August 22, 2014, officers from the New York City Police Department detained McKiver after observing a knife protruding from his pants pocket. During a search of McKiver's backpack, the officers found, among other things, over 100 grams of heroin packaged for resale. McKiver pleaded guilty to the charge against him, which carried a mandatory minimum of five years' imprisonment. Id. § 841(b)(1)(B). The probation office, and the district court at sentencing, calculated a Sentencing Guidelines range of 70 to 87 months' imprisonment based on a total offense level of 23 and a criminal history category of IV. We assume the parties' familiarity with the remaining facts and the procedural history of the case.

The sole issue on appeal is whether McKiver's sentence was substantively unreasonable. We review the substantive reasonableness of a sentence under a “deferential abuse-of-discretion standard,” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)), and vacate a sentence as unreasonable “only in the proverbial ‘rare case’ ” in which “the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law,” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

McKiver principally argues that his sentence is substantively unreasonable because he has, from his pretrial detention to the present, received insufficient medical care for a fractured hand and sleep apnea, among other medical conditions. We are not persuaded. The district court expressly accounted for those conditions, as well as the remaining factors set forth in 18 U.S.C. § 3553(a), in sentencing McKiver to a below-Guidelines term of 68 months' imprisonment. We cannot conclude that the district court's decision to impose a sentence slightly above the mandatory minimum, but below the Guidelines range, was unreasonable.1

McKiver cites no authorities to the contrary. Only one of the decisions he cites even reviewed a district court's sentence, and that decision held only that a district court may impose a non-custodial sentence to a defendant living with medical conditions much more serious than McKiver's. United States v. McFarlin, 535 F.3d 808 (8th Cir. 2008). McKiver's remaining cases merely illustrate that other district courts have taken a similar approach, but none of the sentences imposed therein were subject to appellate review. See, e.g., United States v. Amarante, No. 08-CR-76, 2008 WL 4427917, at *1 (E.D.N.Y. Sept. 22, 2008); United States v. Willis, 322 F. Supp. 2d 76, 84–85 (D. Mass. 2004). These decisions therefore provide no basis to argue that the district court here lacked discretion to differently weigh McKiver's medical conditions, along with the remaining Section 3553(a) factors, in arriving at an individualized sentence modestly above the mandatory minimum.

McKiver also urges that the district court erred by imposing a five-year term of supervised release, instead of the four-year term recommended by the probation office. However, because McKiver makes no effort to show that the five-year term is “shockingly high,” Rigas, 583 F.3d at 123, we cannot conclude that this aspect of McKiver's sentence is substantively unreasonable.

We have considered all of McKiver's remaining arguments and conclude they have no merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, CLERK

FOOTNOTES

1.   Although we conclude that McKiver's medical conditions do not render his sentence substantively unreasonable, we note that there are other avenues for McKiver to challenge his medical care as inadequate. See, e.g., Smith v. Carpenter, 316 F.3d 178, 183–84 (2d Cir. 2003) (discussing 42 U.S.C. § 1983); Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citing 28 U.S.C. § 2241).

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