United States v. Terry Brooks

25-2373(L) United States v. Terry Brooks 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 28th day of October, two thousand twenty-six. PRESENT: DEBRA ANN LIVINGSTON, SARAH A. L. MERRIAM, MATTHEW A. SCHWARTZ, Circuit Judges. __________________________________________ UNITED STATES OF AMERICA, Appellee, v. 25-2373 (Lead) 26-121 (Con) TERRY BROOKS, Defendant-Appellant. __________________________________________ FOR APPELLEE: KEVIN GROSSINGER (James G. Mandilk, Jacob R. Fiddelman, on the brief), Assistant United States Attorneys for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY. 1 FOR DEFENDANT-APPELLANT: ASHOK CHANDRAN, Of Counsel, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Garnett, J.). UPON DUE CONSIDERATION, the January 16, 2026, amended judgment 1 of the District Court is AFFIRMED. Defendant-Appellant Terry Brooks appeals from a judgment entered in the District Court following his plea of guilty to two counts of possession of firearms and ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced Brooks principally to 120 months of imprisonment and three years of supervised release. On appeal, Brooks contends that the District Court committed procedural error by (1) miscalculating his Criminal History Category and by (2) considering his history of arrests in determining his sentence. Brooks also argues that his 120-month sentence is substantively unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. 1 The District Court imposed the original judgment on September 22, 2025, and an amended judgment on January 16, 2026. The amended judgment makes changes to the conditions of supervised release that are not relevant to this appeal. Brooks filed separate (timely) notices of appeal challenging each judgment. Because the amended judgment completely supersedes the original judgment, we use “judgment” to refer to the amended judgment. 2  BACKGROUND In December 1995, Brooks committed a series of eight armed robberies, to which he pled guilty in New York state court. On June 19, 1996, Brooks was sentenced to an indeterminate term of eight to sixteen years’ imprisonment on all eight convictions; he was released on parole on October 19, 2006. On February 13, 2007, his parole was revoked and he was reincarcerated until April 10, 2008. On January 21, 2009, Brooks’s parole was revoked for a second time, and he was reincarcerated until December 7, 2009. For the next fourteen years, Brooks had no arrests. In 2023, however, he purchased several firearms, and on November 12, 2023, he shot a woman. On November 20, 2023, Brooks was arrested in connection with the shooting and charged in New York state court with attempted second-degree murder. Law enforcement executed search warrants on August 14, 2024, resulting in the recovery of eight firearms from two different residences associated with Brooks. On August 21, 2024, Brooks was arrested pursuant to a bench warrant, having failed to appear; at the time of that arrest, police recovered an additional firearm. In January 2025 Brooks was charged with federal crimes. Brooks pled guilty, pursuant to a plea agreement, to two counts of possession of ammunition and firearms after a felony conviction. The plea agreement stated, as relevant here: “Based upon [the United States Attorney’s] Office’s current understanding (including from representations by the defense), the defendant has zero criminal history points.” App’x at 14. The plea agreement expressly stated the parties’ understanding that the 1996 robbery convictions did not result in any criminal history points “because this sentence was imposed more than fifteen years prior to the defendant’s commencement of the offenses in 3 Counts One and Two of the Indictment and the defendant’s incarceration did not extend into” the fifteen-year period preceding the commission of the offenses of conviction. Id. The plea agreement provided that “neither the Probation Office nor the Court is bound” by this stipulation. Id. at 15. At the plea hearing, the District Court advised Brooks that it would conduct its “own independent calculation of the sentencing guidelines” and “then make a decision as to what . . . the appropriate sentence is.” Id. at 36. Brooks stated that he understood. In the Pre-Sentence Report (“PSR”) 2 the Probation Office calculated Brooks’s Criminal History Category to be III, rather than I. See PSR at 22 ¶¶ 89–90; App’x at 88. Brooks did not object to this calculation. See Brooks Br. at 19. At sentencing, the District Court “adopt[ed] the factual recitations as set forth in the PSR,” App’x at 85, and “accept[ed] the guideline calculation in the PSR,” Id. at 89. The District Court specifically adopted the PSR’s calculation of Brooks’s criminal history, explaining that the calculation differed because the PSR determined that the revocation of parole for his robbery convictions resulted in the sentences for those convictions falling within the 15-year lookback window for purposes of calculating criminal history. See id. at 88. The District Court confirmed that both the Government and Brooks agreed with the PSR’s revised calculation. See id. at 88–89. The District Court explained the basis for its chosen sentence, stating, at the outset: 2 The 2024 Edition of the U.S. Sentencing Guidelines was used to calculate the advisory Guidelines range for Brooks. All references to the Sentencing Guidelines herein refer to that edition of the manual, unless otherwise noted. 4 “For 16 years, beginning at age 14, and running through a string of serious armed robberies in 1996, when he was nearly 30 years old, Mr. Brooks had one of the most continuous and serious criminal records I’ve seen in some time, with dozens of arrests and convictions for a range of offenses.” Id. at 106. Applying Criminal History Category III, the District Court calculated the advisory Guidelines range to be 121 to 151 months of imprisonment. After reviewing the statutory sentencing factors, the District Court imposed a just-below Guidelines sentence of 120 months of imprisonment. This appeal followed. DISCUSSION We ordinarily review a sentence under “a deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (citation modified). But “when a defendant had a meaningful opportunity to make objections and failed to raise them before the district court at sentencing,” we review for plain error. United States v. McAdam, 165 F.4th 688, 698 (2d Cir. 2026) (citation modified). Brooks had a meaningful opportunity to object but concedes that “he did not challenge the calculation of his criminal history score or the meaning of application note 11 in U.S.S.G. § 4A1.2. Nor did he object to the district court’s references to his arrests as part of its finding about his criminal history.” Brooks Br. at 19; see also App’x at 88. This Court thus reviews Brooks’s challenges for plain error. Brooks brings both procedural and substantive reasonableness challenges to his sentence. “A district court commits procedural error where it makes a mistake in its Guidelines calculation.” United States v. Wernick, 691 F.3d 108, 113 (2d Cir. 5 2012) (citation modified). As for substantive reasonableness, “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” will be set aside as unreasonable. United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (citation modified). I. Criminal History Category Calculation Section 4A1.1(a) of the Sentencing Guidelines provides that, when determining a defendant’s criminal history score, the court should “[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a). Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period. Id. at § 4A1.2(e)(1) (emphasis added). The “[r]evocation of probation, parole, supervised release, special parole, or mandatory release may affect the time period under which certain sentences are counted” under this section. Id. at § 4A1.2(k)(2). Specifically, a sentencing court determines the lookback period “in the case of an adult term of imprisonment totaling more than one year and one month, [by using] the date of last release from incarceration on such sentence (see § 4A1.2(e)(1)).” Id. at § 4A1.2(k)(2)(a). In sum, to determine whether a prior conviction and sentence falls within the fifteen- year lookback period, the sentencing court determines the date of last release from incarceration that “resulted” from the conviction, id. at § 4A1.2(e)(1), including any term of incarceration resulting from the revocation of parole on that conviction. See United States v. Ingrao, No. 23-7687, 2025 WL 1261696, at *7 (2d Cir. May 1, 2025). 6  Brooks was last released from incarceration resulting from the sentence imposed for his robbery convictions on December 7, 2009, following the second revocation of his parole on that sentence. Thus, any offense commenced before December 7, 2024, would fall within the fifteen-year lookback period. The instant offenses commenced on November 12, 2023, and were completed by August 21, 2024. The Probation Office therefore concluded that all eight 1996 convictions (and the single sentence imposed on all eight) fell within the lookback period. As a result, three points were added for the first of the eight convictions under § 4A1.1(a). See PSR ¶ 80. Three additional points were added under § 4A1.1(d), which assigns one point to “each prior sentence resulting from a conviction of a crime of violence that did not receive any points under subsection (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.” U.S.S.G. § 4A1.1(d); see PSR ¶¶ 81–83. That resulted in a total of six criminal history points, placing Brooks in Criminal History Category III. On appeal, Brooks does not contest the addition of three criminal history points under § 4A1.1(a) for one of the eight robbery convictions. He argues, however, that the addition of three points under § 4A1.1(d) was error. He contends that the two revocations of his parole must necessarily have related to the sentence on only one of the eight robberies, that is, the same sentence for which he was assigned three points under § 4A1.1(a). Thus, he contends, none of the other seven robbery convictions may be counted because none of these other convictions falls within the fifteen-year lookback window, and his total criminal history score is three, not six, placing him in Criminal History Category II, not III. Brooks also argues that Application Note 11 to § 4A1.2 7 supports his approach. We disagree. First, Application Note 11, by its own terms, does not apply to the lookback period for the sentence at issue here. Application Note 11 indicates that it addresses those cases in which “a revocation applies to multiple sentences, and such sentences are counted separately under §4A1.2(a)(2).” U.S.S.G. § 4A1.2, cmt. n.11. The original sentences at issue here were counted as a single sentence, not separately, under § 4A1.2(a)(2). 3 Second, the District Court adopted the factual findings in the PSR indicating that parole was revoked as to the sentence for each of the eight robbery convictions. See PSR ¶¶ 81–87 (listing revocations of parole under each separate conviction). Brooks does not challenge this factual finding. Rather, he states, in a conclusory fashion: “[T]he Guidelines are clear: a single revocation sentence resulting from a single violation can only be attached to a single prior sentence.” Brooks Br. at 21. But this argument assumes the unknown: that only one of Brooks’s eight prior convictions was subject to the two revocations of parole. In any event, we need not pursue the issue. Even assuming arguendo Brooks is correct that his two parole revocations related to the sentence on only one of his eight robbery convictions, Application Note 11 does not apply, and Brooks points to nothing else 3 The Government argues that Application Note 11 only applies to revocations where the original term of imprisonment imposed did not exceed thirteen months, citing the first sentence of the note: “Section 4A1.2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed, if any, did not exceed one year and one month.” Gov’t Br. at 19; U.S.S.G. § 4A1.2, cmt. n.11. But it is clear from Application Note 11, read in full, that this sentence is not a limitation because Note 11 expressly contemplates longer sentences. The fourth sentence reads: “If the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned.” Id. (emphasis added); see also United States v. Rasco, 963 F.2d 132, 135 n.3 (6th Cir. 1992) (“[T]he first sentence of the commentary to note eleven … was clearly not meant to exclude sentences of greater than thirteen months from the strictures of § 4A1.2(k).”). 8 in the Guidelines to support his claim that when a defendant is serving multiple concurrent terms of release, revocation based on a single act that violates all of those terms of release can only be attached to one of the prior sentences. II. Consideration of Prior Arrests Brooks next contends that the District Court erred by considering his arrest history as a basis for imposing its 120-month sentence. When imposing a sentence, a sentencing court must consider the factors set forth in 18 U.S.C. § 3553(a), including “the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). “In deciding upon a sentence, a district court has the discretion to rely on the wide array of facts before it, including information set forth in the pre-sentence report, as well as evidence that would not be admissible at trial, so long as the defendant is given an opportunity to contest the accuracy of that information.” United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam). As part of this consideration, a sentencing court may consider an individual’s arrest record. “[W]hile a sentencing judge may not be able to consider a prior arrest that led to a dismissal as a conviction, the judge can still consider it as evidence of the defendant’s background.” United States v. Ortiz, 742 F.2d 712, 714 n.3 (2d Cir. 1984). The District Court’s reference to Brooks’s uncontested history of arrests, as detailed in the PSR, without any indication that it relied on the conduct underlying those arrests, is permissible as part of its consideration of the § 3553(a) sentencing factors. We accordingly hold that the District Court did not commit plain error by mentioning Brooks’s lengthy arrest record. 9 III. Substantive Reasonableness Finally, Brooks argues that his sentence is substantively unreasonable. “Our review for substantive unreasonableness is particularly deferential.” United States v. Solis, 18 F.4th 395, 401 (2d Cir. 2021) (citation modified). Brooks contends that the sentence “is unreasonably severe, particularly in light of his complete lack of any law enforcement contact for the fourteen years preceding the instant offense.” Brooks Br. at 45. He further emphasizes that “he immediately accepted responsibility for his conduct,” expressing “genuine remorse.” Brooks Br. at 47–48. But “we will not substitute our own judgment for the district court’s on the question of what is sufficient to meet the § 3553(a) considerations in any particular case.” Cavera, 550 F.3d at 189. The District Court properly considered the factors, including the serious nature of the offense conduct, Brooks’s criminal history, and the fact that even after the shooting incident, Brooks continued to acquire and possess firearms. See App’x at 109. We conclude that the 120- month sentence, which was below the advisory Guidelines range, is comfortably below a “shockingly high” sentence in light of the record before the District Court, such that “allowing [it] to stand would damage the administration of justice.” Solis, 18 F.4th at 401– 02 (citation modified). CONCLUSION We have considered Brooks’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 10