UNITED STATES of America, Appellee, v. Daryl SESSION, aka Dazzy, Defendant-Appellant, 378 F. App'x 115

SUMMARY ORDER Daryl Session was convicted on two counts of possession with intent to distribute cocaine and cocaine base, and one count of possessing a firearm in furtherance of a drug trafficking felony. He was sentenced principally to three concurrent terms of 396 months’ imprisonment. On appeal, Session argues that the district court committed various procedural errors at sentencing. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Session argues that the district court departed upward without providing the notice contemplated in Federal Rule of Criminal Procedure 32(h). There is some question as to whether sueh notice was required in this case in light of the Supreme Court’s decision in Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), but we need not resolve that issue.

Instead, we conclude that, even if notice was required, notice was given when the district court indicated at a pre-sentencing hearing that it was “thinking of matters that might lead the Court to impose a sentence outside the guidelines.” It then went on to delineate explicitly the very considerations of which Session now contends he was never made aware. Session argues that the district court contravened 18 U.S.C. § 3558(c)(2) by failing to explain in the written judgment the rationale for a non-Guidelines sentence. Session misreads the record.

The district court did, in fact, explain its reasons for the sentence in its written judgment, and it did so in detail more than sufficient to satisfy the statute. Session argues that the district court erred in relying on U.S.S.G. § 4A1.3(a)(

l) to depart upward for Session’s involvement in the murder-for-hire scheme. But the district court did not rely on § 4A1.3(a)(

l) for this purpose. Session’s involvement in the murder-for-hire plot was considered as part of the analysis of the 18 U.S.C. § 3553(

a) factors. As the district court observed, such conduct bears on the history and characteristics of the defendant, the need to deter, and the need to protect the public from future crimes. Session asserts that the sentence violates this Court’s decisions in United States v. Whitley, 529 F.3d 150 (2d Cir.2008), and United States v. Williams, 558 F.3d 166 (2d Cir.2009). We disagree. When Whitley applies, it operates to make non-mandatory the otherwise required consecutive sentence provided for in 18 U.S.C. § 924(c). United States v. Whitley, 540 F.3d 87, 89 (2d Cir.2008) (denial of petition for rehearing).

By the same token, Whitley “leaves sentencing judges free to impose precisely the same number of years” that would result from a mandatory application of the § 924(

c) consecutive sentence, “but authorizes them to do so as a matter of discretion, not as a requirement.” Id. Here, the record is clear that the 60-month increment to the applicable guideline range was in the exercise of discretion. The court explicitly noted that it was not required to do so. Finding no merit in Session’s remaining arguments, we hereby AFFIRM the judgment of the district court.