Full Opinion

25-2467 United States v. Yarborough UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of November, two thousand twenty-six. PRESENT: SUSAN L. CARNEY, MICHAEL H. PARK, EUNICE C. LEE, Circuit Judges. _____________________________________ United States of America, Appellee, v. 25-2467 Maurice Yarborough, Defendant-Appellant. _____________________________________ FOR APPELLEE: JORJA N. KNAUER (Michael D. Maimin, on the brief), Assistant United States Attorneys for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY. FOR DEFENDANT-APPELLANT: EDWARD S. ZAS, Federal Defenders of New York, Inc., New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Seibel, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendant-Appellant Maurice Yarborough pled guilty to one count of possessing ammunition after a felony conviction in violation of 18 U.S.C. § 922(g)(1). As described at the sentencing hearing, Yarborough “got into an argument,” “lost his temper,” and “fired one or two shots” in the victim’s direction when multiple bystanders were on the street. App’x at 95–96, 106. The parties and the district court arrived at a Sentencing Guidelines range of 24 to 30 months’ imprisonment, based on calculations that incorporated an aggravated assault cross-reference and Yarborough’s 2013 conviction for 2 possessing a firearm as a convicted felon. Yarborough also had prior convictions too old to affect the Guidelines calculation. These include forcible rape of a minor younger than 15 years old and participation in attempted armed robbery. The district court imposed an above-Guidelines sentence of 60 months’ imprisonment followed by three years of supervised release. Yarborough appeals, arguing that his sentence is both procedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. I. Procedural Reasonableness We apply “a particularly deferential form of abuse-of-discretion review” to claims alleging that a sentence was procedurally or substantively unreasonable. United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012). “A district court errs procedurally when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks omitted). As the parties agree, we review Yarborough’s procedural objections for plain error because he did not raise them below. See United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020). 3 Yarborough argues that his sentence is procedurally unreasonable because the district “never adequately explained why” a sentence of 60 months was justified “rather than a lesser sentence above the advisory range.” Appellant’s Br. at 23–24. But we have “never required a district court to explain in open court why any particular unselected sentence would be inappropriate (either because it is greater than necessary or because it is not sufficient to satisfy the goals of sentencing).” United States v. Rosa, 957 F.3d 113, 118 (2d Cir. 2020). Yarborough also asserts that the district court’s stated policy disagreement with the Guidelines is not enough to justify the variance. But “a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses.” United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc). Because the Guidelines calculation already incorporated a shooting-related aggravated assault cross-reference, Yarborough further argues that the district court’s upward variance was insufficiently explained. But the district court may “rel[y] on factors already incorporated into the Guidelines calculation to impose an upward variance,” so long as it “articulate[s] specifically the reasons that this particular defendant’s situation is different from the ordinary situation covered by the Guidelines 4 calculation.” United States v. Bagley, 188 F.4th 635, 643 (2d Cir. 2026). Here, the district court offered specific reasons sufficient to justify the variance. The court found that Yarborough “could have killed his victim” or “somebody else,” and it was “just dumb luck that Mr. Yarborough didn’t kill someone” in light of the location and timing of the shooting—“a residential neighborhood on a warm evening when people were outside.” App’x at 106, 109. It also discussed Yarborough’s “lengthy and serious criminal history” and the resulting need to incapacitate him, especially because previous sentences did not “seem to stop him from committing new crimes.” Id. at 106–07. Finally, it opined that the Guidelines are “just too low” in this context because they do not “fully account[] for the danger that occurs when people who shouldn’t have guns have guns.” Id. at 104–05. The district court’s explicit policy disagreement, “its context-specific view of the severity of [Yarborough’s] criminal history and conduct,” and its incapacitation-based rationale together adequately explain the imposed sentence. United States v. Murphy, No. 24-404-cr, 2025 WL 428420, at *2 (2d Cir. Feb. 7, 2025) (summary order). Yarborough further contends that the district court did not adequately consider “the need to avoid unwarranted sentence disparities” among similarly situated defendants under 18 U.S.C. § 3553(a)(6). In particular, he alleges that the court failed to 5 “engage with the Sentencing Commission data” showing the distance between Yarborough’s sentence and statistical averages. Reply Br. at 5. But we have never “require[d] robotic incantations that the district court has considered each of the § 3553(a) factors.” Cavera, 550 F.3d at 193 (internal quotation marks omitted). “[I]n the absence of record evidence suggesting otherwise, we presume that a sentencing judge has faithfully discharged her duty to consider the statutory factors.” United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (internal quotation marks omitted). Nothing in the record here disturbs that presumption. In any event, avoiding unwarranted sentence disparities is just one factor among many required to be considered under § 3553(a), so “the district court was well within its discretion in finding that the seriousness of [Yarborough’s] crime[] required a more substantial sentence than the nationwide averages for the crime[] of which he was convicted.” United States v. Kurti, 550 F. App’x 61, 63 (2d Cir. 2014) (summary order). Finally, Yarborough insists that this Court’s recent decision in United States v. Bagley requires vacatur. We disagree. In Bagley, the sentencing judge imposed an above-Guidelines sentence based on factors that on review we found had already “increased Bagley’s offense level by 13 levels.” 188 F.4th at 643. We found procedural error because the court “neither acknowledged that [those] factors were baked into the 6 Guidelines calculation nor explained why they bore greater-than-usual weight” in the case. Id. Here, by contrast, the district court expressly acknowledged the aggravated assault cross-reference and Yarborough’s criminal history level. See App’x at 104. And it explained its policy disagreement with the “counter-intuitive” Guidelines calculation, which produced a lower sentencing range for Yarborough’s second § 922(g)(1) conviction than for his first. Id. The district court thus sentenced Yarborough to an above- Guidelines sentence in accordance with its reasonable conclusion that his “really egregious, dangerous conduct” and his criminal history bore greater-than-usual weight. Id. at 110. II. Substantive Reasonableness A sentence is substantively unreasonable “only when [it] cannot be located within the range of permissible decisions.” Smith, 949 F.3d at 66. “Our review of a sentence for substantive reasonableness is particularly deferential, and we will set aside only those sentences that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice.” United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (cleaned up). Yarborough argues that his sentence “falls outside the range of permissible outcomes under § 3553(a)” because “the Probation Department recommended a within- 7 Guidelines sentence” and because “the Guidelines already treated the offense as a shooting-related aggravated assault.” Appellant’s Br. at 27. Yarborough also alleges a substantively unreasonable disparity between his sentence and the statistical average for similarly situated defendants. Finally, he asserts that the district court incorrectly relied on “generalized concerns about deterrence, public safety, and public perception.” Id. at 32. The district court did not err on any of these counts, so Yarborough’s substantive challenge fails. First, the district court did not err in diverging from the Probation Office recommendation or by emphasizing the circumstances of the shooting when it imposed the upward variance. The Probation Office’s position is “a recommendation that does not bind a district court.” United States v. Avello-Alvarez, 430 F.3d 543, 545 (2d Cir. 2005). And as discussed above, the district court satisfied its explanatory obligation when it articulated that Yarborough’s egregiously dangerous conduct and prior gun convictions justified an upward variance from the ordinary Guidelines calculation. See Bagley, 188 F.4th at 643. Second, there is no substantively unreasonable disparity here because this sentence is not “shockingly high.” We routinely affirm comparable sentences for similar § 922(g)(1) convictions. See, e.g., United States v. Ford, No. 24-1454, 2025 WL 2423907, at 8 *1 (2d Cir. Aug. 22, 2025) (summary order) (affirming 60-month sentence for “carrying a gun loaded on a residential street at 9 p.m. and [shooting] at least six times at a complete stranger without provocation.”); United States v. Feaster, 833 F. App’x 494, 498 (2d Cir. 2020) (summary order) (affirming 60-month sentence for a repeat-offender, parolee defendant who tossed aside a loaded firearm during a struggle with a police officer). Moreover, statistics about “defendants with similar offense levels and criminal-history categories . . . offer no details about the Section 3553(a) considerations underlying those other sentences.” Murphy, 2025 WL 428420, at *3. The Probation Office’s statistics alone thus do not invalidate Yarborough’s sentence. Third, the district court did not abuse its discretion by voicing concerns about general deterrence and public safety in addition to recidivism. Yarborough emphasizes our decision in United States v. Singh, 877 F.3d 107 (2d Cir. 2017), where we vacated a sentence in part because the sentencing judge’s conclusions about the defendant’s “consistent history of criminal conduct” and “very high likelihood of recidivism” did not justify a sentence that was nearly three times the top of the Guidelines range. Id. at 116– 17 (internal quotation marks omitted). We found it important that none of the defendant’s previous convictions “involved violence or narcotics trafficking” and many were “so minor they resulted in conditional discharges.” Id. at 117. Here, 9 Yarborough’s prior convictions, for forcible rape and involvement in attempted armed robbery, are much more serious. In light of these facts, the “factor[s] relied on by” the district court “can bear the weight assigned [them] under the totality of circumstances.” Id. at 117 n.4. * * * We have considered Yarborough’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 10