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United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. Kevin MOORE, Sr., Defendant-Appellant.

No. 17-1510-cr

Decided: February 26, 2018

PRESENT: JOHN M. WALKER, JR., PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges. FOR APPELLANT: Lisa A. Peebles, Federal Public Defender, Melissa A. Tuohey, Assistant Federal Public Defender, Office of the Federal Public Defender, Syracuse, New York. FOR APPELLEE: Rajit S. Dosanjh, Assistant United States Attorney, for Grant C. Jaquith, Interim United States Attorney for the Northern District of New York, Syracuse, New York.


Defendant Kevin Moore, Sr., who is presently serving a 78-month prison term for bank robbery, in violation of 18 U.S.C. § 2113(a), appeals from a judgment of conviction. Moore argues that the 78 months’ imprisonment imposed is substantively unreasonable because the district court did not account for all of the 18 U.S.C. § 3553(a) factors and placed too much weight on his criminal history. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

Our review of sentences for substantive reasonableness “amounts to review for abuse of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc). In determining whether a sentence imposed by the district court is substantively reasonable, we are deferential and do not ask whether we would assign the same weight to a factor the district court did, but rather whether that factor “can bear the weight assigned it under the totality of circumstances in the case.” Id. at 191. And “we will set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v. Ryan, 806 F.3d 691, 695 (2d Cir. 2015) (alteration omitted) (quoting United States v. Wagner-Dano, 679 F.3d 83, 95 (2d Cir. 2012) ). “[W]hile we have declined to adopt a per se rule, we recognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” Ryan, 806 F.3d at 695 (quoting United States v. Ingram, 721 F.3d 35, 37 (2d Cir. 2013) ).

Moore’s challenge to his 78-month sentence as substantively unreasonable fails. The term of imprisonment imposed was within the undisputed calculated Guidelines range. The record is clear that the district court considered the factors set forth in 18 U.S.C. § 3553(a), including the abuse Moore suffered as a child, his substance abuse, his mental health, the fact he was “motivated for substance abuse treatment, and motivated to learn coping skills”; and the fact that he did once go “about two years without any criminal arrest.” Appendix at 68. But the district court also took into account Moore’s multiple “convictions for robbery, burglary, and ․ acts of violence” and “the need to protect the public from further crimes by [Moore].” Appendix at 68. Moore’s criminal history in fact placed him in the highest criminal history category in the relevant Presentence Report, the accuracy of which is undisputed by the parties.

The district court understood the need “to impose a sentence that’s sufficient but not greater than necessary to comply with” the purposes of 18 U.S.C. § 3553(a). Appendix at 68. The 78-month sentence was well within its discretion.

We have considered all of Moore’s remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.

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