UNITED STATES of America, Appellee, v. William James DUNN, Defendant-Appellant, Britney Hall, Defendant, 529 F. App'x 30

SUMMARY ORDER Defendant-appellant William James Dunn appeals from the judgment of the district court, entered August 24, 2012, sentencing him to a total of 90 months’ imprisonment: 84 months for conspiring to distribute heroin and cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1), to be followed by 6 months for thereby violating the conditions of his supervised release from a previous federal firearms conviction. We assume the parties’ familiarity with the facts and procedural history of this case, as well as with the issues on appeal.

In 2008, Dunn was convicted of possessing a firearm as a convicted felon and was sentenced to 37 months’ imprisonment and three years of supervised release. In 2011, while on supervised release from the firearms conviction, he was arrested while transporting heroin and crack cocaine from Rhode Island to Vermont. Dunn pleaded guilty to conspiring to distribute heroin and cocaine base and admitted to violating the conditions of his supervised release. The district court sentenced him to 84 months for the drug conspiracy and 6 months for the supervised release violation, to be served consecutively. I.

Procedural Challenge Dunn argues that his sentence is procedurally unreasonable because the district court considered the commission of the offense during supervised release as an aggravating factor three separate times during its sentencing: (1) when calculating Dunn’s criminal history category, (2) when fashioning Dunn’s six-month consecutive sentence for violation of supervised release, and (3) when weighing the factors set forth in 18 U.S.C. § 3553(a). Because Dunn did not raise this argument before the district court, we review it for plain error. United States v.

Villafuerte, 502 F.3d 204, 208 (2d Cir.2007). To establish plain error, the defendant must establish (1) error (2) that is plain and (3) affects substantial rights, and (4) that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (alteration and internal quotation marks omitted).

We find no error in the district court’s sentencing, much less plain error. “We have repeatedly held ... that a district court calculating a Guidelines sentence may apply multiple Guidelines provisions based on the same underlying conduct where that is the result clearly intended by Congress and the Sentencing Commission.” United States v. Maloney, 406 F.3d 149, 152 (2d Cir.2005). “[D]ou-ble counting is permissible in calculating a Guidelines sentence where, as here, each of the multiple Guidelines sections applicable to a single act serves a distinct purpose or represents a discrete harm.” Id. at 153.

The criminal history category “principally estimates the likelihood of recidivism,” United States v. Pereira, 465 F.3d 515, 522 (2d Cir.2006) (internal quotation marks omitted), while the sentence for a violation of supervised release “ ‘sanctions] primarily the defendant’s breach of trust,’ ” United States v. Gonzalez, 529 F.3d 94, 98 (2d Cir.2008), quoting U.S.S.G. Ch. 7, Pt. A, intro, comment. 3(b). See also United States v.

Morales, 497 Fed.Appx. 111, 113-14 (2d Cir.2012) (holding that considering violation of supervised release both in calculating criminal history category and in imposing sentence for violation itself did not constitute impermissible double-counting). The district court also properly took Dunn’s violation into account when analyzing the § 3553(

a) factors. The § 3553(

a) analysis is not a procedure for enhancing Guidelines sentences that risks “double-counting” (or in this case, “triple-counting”) something that has already been factored into the Guidelines calculation. Rather, it is intended to consider all the facts relevant to sentencing, including those that have already been included in the Guidelines calculation, in order to determine an appropriate sentence. Before imposing a sentence, a district court must first calculate the applicable Guidelines range and then “consider all of the § 3553(

a) factors” in order to make “an individualized assessment based on the facts presented” at sentencing. Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In Dunn’s case, it would make no sense to ignore his criminal history and imperviousness to rehabilitative treatment in deciding what the right sentence — whether within, above or below the Guidelines — ought to be. II.

Substantive Challenge Dunn also argues that his sentence was substantively unreasonable. “In reviewing the substantive reasonableness of a sentence, ‘we take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.’ ” United States v. Chu, 714 F.3d 742, 746 (2d Cir.2013), quoting United States v. Cavera, 550 F.3d 180,190 (2d Cir.2008) (en banc).

We will set aside a district court’s sentence on substantive grounds “only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted). The district court’s 90-month sentence is well within the range of permissible decisions in these circumstances.

The total sentence for both Dunn’s underlying offense and his supervised release violation fell within the Guidelines range for the underlying offense alone, a range that was itself the product of the district court’s downward departure as to criminal history and variance as to offense level. For the reasons articulated by the district court in its thoughtful and careful sentencing proceeding, Dunn’s sentence was reasonable. For the foregoing reasons, the judgment of the district court is affirmed.