11‐2429‐cr
United States v. Sanchez
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2014
No. 11‐2429‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN SANCHEZ, AKA T, AKA TRIX,
Defendant‐Appellant,
EDGAR NIEVES, AKA K, JORGE MORALES, AKA FAT GEORGIE,
LEONIDAS DEJESUS PEREZ‐DOMINGUEZ, AKA LOCA,
ANTONIO PESANTE, MICHAEL PESANTE, MARCO TACCO,
AKA SOFT, JOSE RODRIGUEZ, AKA JOE CRACK, JUSTIN RILEY,
LUIS JUSTINIANO, AKA CRAZOR, MIGUEL NEGRON, AKA
MIKEY, GREG BENITEZ, GLENDA BLANCO, VICTOR COLON,
AKA JUNIE, MICHAEL JACKSON, AKA UG, ALAN ROGERS, AKA
SHUG, RUBEN CARDONA, AKA CHRIS, CARLOS CINTRON,
Defendants.
________
Appeal from the United States District Court
for the District of Connecticut.
No. 3:06‐cr‐272‐1 ― Alan H. Nevas, Judge.
2 No. 11‐2429‐cr
________
ARGUED: AUGUST 19, 2014
DECIDED: DECEMBER 4, 2014
________
Before: CABRANES, STRAUB, and LIVINGSTON, Circuit Judges.
________
Defendant Edwin Sanchez appeals from a sentence of 288
months’ imprisonment and 10 years’ supervised release imposed by
the District Court (Alan H. Nevas, Judge). We conclude that, in the
circumstances presented here, Sanchez’s rights were substantially
affected and the fairness and integrity of the judicial proceedings
were seriously compromised—that is, there was “plain error”—
where Sanchez’s mandatory minimum sentence was miscalculated
and where the record reflects that this miscalculation had an impact
on the sentence imposed.
Accordingly, we VACATE the sentence imposed by the
District Court and REMAND for resentencing consistent with this
opinion.
________
DEVIN MCLAUGHLIN, Langrock Sperry & Wool,
LLP, Middlebury, VT, for Appellant Edwin Sanchez.
ALINA P. REYNOLDS, Assistant United States
Attorney (Edward Chang, Assistant United States
Attorney, on the brief), for Deirdre M. Daly, United
3 No. 11‐2429‐cr
States Attorney for the District of Connecticut,
Bridgeport, CT, for Appellee United States of
America.
________
JOSÉ A. CABRANES, Circuit Judge:
Defendant Edwin Sanchez appeals from a sentence of 288
months’ imprisonment and 10 years’ supervised release imposed by
the District Court (Alan H. Nevas, Judge).1 We conclude that, in the
circumstances presented here, Sanchez’s rights were substantially
affected and the fairness and integrity of the judicial proceedings
were seriously compromised—that is, there was “plain error”—
where Sanchez’s mandatory minimum sentence was miscalculated
and where the record reflects that this miscalculation had an impact
on the sentence imposed.
Accordingly, we VACATE the sentence imposed by the
District Court and REMAND for resentencing consistent with this
opinion.
BACKGROUND
Sanchez pleaded guilty to one count of conspiring to possess,
with intent to distribute, over 1,000 grams of heroin in violation of
21 U.S.C. §§ 841(a)(1) & (b)(1)(A). The statutory mandatory
minimum for this crime is normally 10 years’ imprisonment and five
years’ supervised release. Id. § 841(b)(1)(A).
Judge Nevas retired from the bench after sentencing, and this case was
1
subsequently reassigned to Judge Stefan R. Underhill.
4 No. 11‐2429‐cr
The same day as the guilty plea, however, the Government
filed a second‐offender information under 21 U.S.C. § 851, alleging
that Sanchez was subject to enhanced penalties based on his prior
Connecticut conviction for possession of narcotics. This provision
increased the mandatory minimum for Sanchez’s crime to 20 years’
imprisonment and 10 years’ supervised release. Id. § 841(b)(1)(A).2
Sanchez’s applicable Guidelines range was calculated to be
360 months’ to life imprisonment. (The Government, however,
agreed in Sanchez’s plea agreement not to seek a sentence higher
than 360 months.) The change in the mandatory minimum did not
affect the Guidelines calculation, and that calculation is not
challenged on appeal. At the sentencing hearing, the District Court
In relevant part, the statute’s provisions for imprisonment state:
2
[An offender under this subsection] shall be sentenced to a term of
imprisonment which may not be less than 10 years or more than
life . . . . If any person commits such a violation after a prior
conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment which may not be less
than 20 years and not more than life imprisonment . . . .
21 U.S.C. § 841(b)(1)(A) (emphasis supplied). In relevant part, the statute
provides with respect to supervised release that
any sentence under this subparagraph shall, in the absence of such
a prior conviction, impose a term of supervised release of at least 5
years in addition to such term of imprisonment and shall, if there
was such a prior conviction, impose a term of supervised release of at
least 10 years in addition to such term of imprisonment.
Id. (emphasis supplied).
5 No. 11‐2429‐cr
did not make any mention of the mandatory minimum, and
ultimately sentenced Sanchez to 288 months’ imprisonment and 10
years’ supervised release.
DISCUSSION
This appeal arises from the fact that the District Court’s
imposition of a prior‐conviction enhancement—which raised
Sanchez’s mandatory minimum sentence—was improper. Because
Sanchez did not object at his sentencing hearing, we review only for
plain error. Plain error exists where
(1) there is an error; (2) the error is clear or obvious,
rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights, which in the
ordinary case means it affected the outcome of the
district court proceedings; and (4) the error seriously
affects the fairness, integrity or public reputation of
judicial proceedings.
United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (quoting
United States v. Marcus, 560 U.S. 258, 262 (2010)).
The first two prongs of the plain error test are not in dispute.
The Government concedes that it was a clear error to treat Sanchez’s
Connecticut narcotics conviction as a prior felony drug conviction,
because the State narcotics law for which Sanchez was convicted
was not coterminous with the federal narcotics laws. See McCoy v.
United States, 707 F.3d 184, 187 (2d Cir. 2013). It was therefore
6 No. 11‐2429‐cr
improper for the District Court to rely on this conviction under the
“categorical approach”—that is, “consider[ing] the offense
generically, . . . and not in terms of how an individual offender
might have committed it on a particular occasion.” Begay v. United
States, 553 U.S. 137, 141 (2008) (citing Taylor v. United States, 495 U.S.
575, 602 (1990)). The Government concedes also that it did not and
cannot demonstrate that Sanchez’s prior conviction actually qualified
as a felony drug offense, because the pertinent records are no longer
available. See generally Shepard v. United States, 544 U.S. 13, 19–23
(2005). Accordingly, it is undisputed that the appropriate mandatory
minimum was imprisonment of 10 years, rather than 20 years (and,
concomitantly, supervised release of five years, rather than 10
years).
With respect to the term of supervised release, the
Government concedes that remand is necessary. Appellee’s Br. 2.
This is undoubtedly so, because the District Court sentenced
Sanchez to the exact mandatory minimum term of 10 years, which
was incorrectly calculated.
With respect to the term of imprisonment, however, the
Government argues that Sanchez fails to meet his burden to
establish plain error, because his substantial rights were not affected,
and because the fairness and integrity of his sentence was not
seriously compromised.
7 No. 11‐2429‐cr
A. Sanchez’s Substantial Rights
The Government’s argument regarding the substantial rights
prong rests primarily on our previous case, United States v.
Deandrade, 600 F.3d 115 (2d Cir. 2010). In Deandrade, the defendant
similarly argued that a prior juvenile conviction did not constitute a
prior felony conviction under § 841(b)(1)(A). We did not reach the
merits of that argument, however, because we concluded it was
“clear that the sentence was unaffected by Deandrade’s juvenile
drug offense.” Id. at 120. We concluded that that was so because
[t]he Guidelines sentence, correctly calculated by the
court, was 360 months to life—independent of any
consideration of the contested juvenile adjudication. . . . The
300‐month sentence actually imposed exceeded (by 60
months) the 20‐year mandatory minimum prescribed by
§ 841(b)(1)(A). It is hard to see how any consideration of
the juvenile adjudication—which mattered only as to
that mandatory minimum—contributed to the sentence
imposed.
Id. (emphasis in original).
The holding of Deandrade was, therefore, that an error in
calculating the mandatory minimum must have made a difference in
the defendant’s sentence in order to affect a defendant’s substantial
rights. Cf. Williams v. United States, 503 U.S. 193, 203 (1992)
(“Accordingly, in determining whether a remand is required under
§ 3742(f)(1), a court of appeals must decide whether the district court
8 No. 11‐2429‐cr
would have imposed the same sentence had it not relied upon the
invalid factor or factors.”). To determine whether the District
Court’s erroneously‐calculated mandatory minimum affected
Sanchez’s sentence, we are required to look to “the record as a
whole.” Id. In Deandrade, we found it clear from the entirety of the
record that the error did not make a difference to the sentence,
because the defendant’s Guidelines range was well above the
mandatory minimum, and because the District Court specifically
stated that the mandatory minimum was irrelevant to the sentence it
imposed. 600 F.3d at 120.
Here, by contrast, the record reflects that the erroneously‐
calculated mandatory minimum did affect Sanchez’s sentence.
Unlike in Deandrade, where the District Court said it was imposing
sentence that was “greater than 20 years without regard to the
mandatory minimum,” 600 F.3d at 120, the District Court here made
no such statement. And although the District Court did not mention
the mandatory minimum, the assumption of a 20‐year minimum
sentence permeates the record. Indeed, throughout the sentencing
hearing, Sanchez’s counsel argued that the range for the District
Court to consider was between the mandatory minimum sentence
(which he believed to be 20 years) and 30 years.3 The Government,
too, invoked the mandatory minimum, arguing “if the Court is
considering imposing a non‐guideline sentence, . . . we urge the
3 Although the Guidelines range was 360 months’ to life imprisonment, as
a practical matter, the “ceiling” for Sanchez’s possible term of imprisonment was
at the very bottom of that range, because of the Government’s agreement not to
seek a sentence higher than 360 months. See text following note 2, supra.
9 No. 11‐2429‐cr
Court to impose a sentence above the mandatory minimum in the
case.” Joint App’x 119; see also id. at 117 (arguing that the District
Court should not “reward” Sanchez with a sentence of the
mandatory minimum of 20 years). Thus, both parties relied on the
(mis‐)calculation of a 20‐year mandatory minimum in their
arguments, and the District Court ultimately sentenced Sanchez to
288 months’ imprisonment—a sentence closer to 20 years than to 30.
Sanchez appears to agree with the Government that, under
our Court’s existing precedent, his appeal should fail on plain error
review. See, e.g., Appellant’s Reply Br. 2. As noted above, however,
we disagree with the broad reading of Deandrade subscribed to by
both the Government and Sanchez. See, e.g., id. (“Prior to [Alleyne v.
United States, 133 S. Ct. 2151 (2013)], this Circuit held that a
defendant is not prejudiced by an incorrect mandatory minimum
when the defendant’s Guidelines range is not impacted, and the
defendant receives a sentence above the incorrect mandatory
minimum.”). We have never adopted such a bright‐line test, either
in Deandrade or in subsequent cases. The sole basis for our decision
to affirm the sentence in Deandrade was that the erroneously‐
calculated mandatory minimum “had no influence on the sentence
that was imposed.” 600 F.3d at 120. Here, our review of the record
leads us to the opposite conclusion—that the error in calculating the
mandatory minimum did affect Sanchez’s sentence.
The other two cases relied upon by the Government are not to
the contrary. In Sapia v. United States, we declined to remand solely
because there was “no indication that any error affected the
10 No. 11‐2429‐cr
sentence.” 433 F.3d 212, 218 (2d Cir. 2005). And in United States v.
Dominguez, the Government conceded that the mandatory minimum
was miscalculated, but we concluded that that error too was
harmless. 393 F. App’x 773, 779 (2d Cir. 2010) (summary order).
Although the dicta in Dominguez—a non‐precedential summary
order—was perhaps phrased more broadly than necessary, the sole
basis for our holding was that the error had not affected the sentence
imposed. Again, in this case, unlike in Sapia and Dominguez, we have
concluded that the error in calculating the mandatory minimum did
affect Sanchez’s sentence and that, therefore, a remand is required.4
Accordingly, based upon our review of the record, we
conclude that Sanchez has met his burden under plain error review
to establish that his substantial rights were affected. See United States
v. Olano, 507 U.S. 725, 734 (1993).
B. The Fairness and Integrity of Sanchez’s Sentence
We next assess whether this error seriously affected the
“fairness, integrity or public reputation of judicial proceedings.”
Marcus, 560 U.S. at 262; see also Puckett v. United States, 556 U.S. 129,
135 (2009); Tarbell, 728 F.3d at 126.
Because we conclude that a remand is required under our precedents,
4
we do not address Sanchez’s primary argument—that the Supreme Court’s
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), requires us to find
prejudice whenever a sentencing judge miscalculates the mandatory minimum
sentence.
11 No. 11‐2429‐cr
As stated above, the assumption of a 20‐year minimum
sentence permeates the record, and the District Court never stated
affirmatively that it had not considered the miscalculated
mandatory minimum in imposing its 288‐month sentence. Indeed,
the record strongly suggests that the District Court relied on the
incorrect minimum in imposing sentence. If this error were to stand
uncorrected, Sanchez might face a longer sentence—perhaps
substantially longer—than he otherwise would. We therefore
conclude that the fairness and integrity of judicial proceedings were
seriously affected by the District Court’s error. Cf., e.g., United States
v. Folkes, 622 F.3d 152, 158 (2d Cir. 2010) (vacating and remanding
sentence affected by inflated Guidelines range on plain‐error
review).
Accordingly, we vacate and remand for resentencing. We of
course intimate no view as to the sentence that should be imposed
on remand or as to the substantive reasonableness of the 288‐month
sentence the District Court imposed.
CONCLUSION
To summarize, we hold that, in the circumstances presented
here, Sanchez’s rights were substantially affected and the fairness
and integrity of the judicial proceedings were seriously
compromised—that is, there was “plain error”—where Sanchez’s
mandatory minimum sentence was miscalculated and where the
record reflects that this miscalculation had an impact on the sentence
imposed.
12 No. 11‐2429‐cr
For the reasons set forth above, we VACATE the sentence and
REMAND the cause for resentencing consistent with this Opinion.