13-3025
United States v. Nelson
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 A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of February, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-3025
16
17 DION NELSON, also known as “Booquan,”
18 Defendant-Appellant.
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20
21 FOR APPELLANT: Susan G. Kellman, Brooklyn, New
22 York.
23
24 FOR APPELLEE: Shreve Ariail, Amy Busa,
25 Assistant United States
26 Attorneys, for Loretta E. Lynch,
27 United States Attorney for the
1
1 Eastern District of New York,
2 Brooklyn, New York.
3
4 Appeal from a judgment of the United States District
5 Court for the Eastern District of New York (Garaufis, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Defendant-appellant Dion Nelson appeals from a judgment
12 of the United States District Court for the Eastern District
13 of New York (Garaufis, J.), sentencing him to 25 years of
14 imprisonment for unlawful use and discharge of a firearm in
15 furtherance of a drug-trafficking crime, in violation of 18
16 U.S.C. § 924(c)(1)(A)(iii). We assume the parties’
17 familiarity with the underlying facts, the procedural
18 history, and the issues presented for review.
19
20 Nelson argues that: (1) statutory language authorizing
21 a sentence “not less than ten years” requires a sentence of
22 exactly ten years; (2) the sentence was procedurally
23 unreasonable because the district court failed to explain in
24 open court the reasons for imposing an above-guidelines
25 sentence, and because of inaccuracies on the statement of
26 reasons form; and (3) the 25-year sentence was so long as to
27 be substantively unreasonable. We affirm the sentence, but
28 we remand for the limited purpose of allowing the district
29 court to issue a corrected statement of reasons.
30
31 1. Nelson argues that the 25-year sentence conflicts
32 with the statute, which authorizes “a term of imprisonment
33 of not less than 10 years.” However, 25 years is “not less
34 than 10 years”; so the sentence is permissible. See, e.g.,
35 United States v. Farmer, 583 F.3d 131, 151 (2d Cir. 2009).
36 Nelson relies on (ambiguous) legislative history, inferences
37 from Supreme Court oral argument transcripts, and the rule
38 of lenity. However, “[w]e are bound by the decisions of
39 prior panels” of this Court. Gelman v. Ashcroft, 372 F.3d
40 495, 499 (2d Cir. 2004). This claim fails.
41
42 2. Nelson argues that the sentence was procedurally
43 unreasonable because of two separate violations of 18 U.S.C.
44 § 3553(c): (1) the district court did not explain why it
45 imposed a sentence that substantially exceeded the
46 guidelines recommendation of 10 years; and (2) the district
2
1 court’s statement of reasons contains inaccurate information
2 and insufficient justification for the sentence.
3
4 a. Nelson claims that the district court violated 18
5 U.S.C. § 3553(c) by failing to justify in open court its
6 decision to impose an above-guidelines sentence. But Nelson
7 made no relevant objection in the district court; so this
8 claim is reviewed for plain error. See United States v.
9 Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007) (“We now hold
10 that plain error analysis in full rigor applies to
11 unpreserved claims that a district court failed to comply
12 with § 3553(c).”).
13
14 The plain error standard is a familiar one: “an
15 appellate court may, in its discretion, correct an error not
16 raised” before the district court
17
18 only where the appellant demonstrates that (1)
19 there is an error; (2) the error is clear or
20 obvious, rather than subject to reasonable
21 dispute; (3) the error affected the appellant’s
22 substantial rights, which in the ordinary case
23 means it affected the outcome of the district
24 court proceedings; and (4) the error seriously
25 affects the fairness, integrity or public
26 reputation of judicial proceedings.
27
28 United States v. Marcus, 560 U.S. 258, 262 (2010) (internal
29 quotation marks omitted).
30
31 Nelson is correct that the district court erred, and
32 that its error was plain. To be sure, the district court
33 provided ample justification for imposing a sentence with a
34 lengthy term of incarceration. But the court did not
35 acknowledge that it was imposing an above-guidelines
36 sentence, so it therefore could not have satisfied its
37 obligation to explain its reasons for doing so.
38
39 But Nelson’s claim fails nonetheless, because the
40 district court’s error, though plain, did not “seriously
41 affect[] the fairness, integrity or public reputation of
42 judicial proceedings.” Marcus, 560 U.S. at 262. The
43 district court was clearly aware that it was departing from
44 the guidelines recommendation--even if the court never
45 adequately explained why. Early in the proceeding, the
46 district court observed that, because Nelson’s extensive
47 criminal history was not captured by the guidelines
3
1 recommendation, there was “no issue here regarding whether
2 there should be notice about a possible sentence above the
3 guidelines.”
4
5 b. As Nelson points out, the statement of reasons form
6 inaccurately states that the sentence imposed was within the
7 guidelines range; and the document contains no explanation
8 for why an above-guidelines sentence was appropriate in this
9 case. Like Nelson’s other procedural challenges, these are
10 clear violations of 18 U.S.C. § 3553(c)(2) (requiring that
11 the explanation for an above-guidelines sentence appear in
12 the written statement of reasons). This claim, too, is
13 raised for the first time on appeal.
14
15 Recognizing that such a claim will almost never survive
16 plain error review (this one is no exception), our cases
17 suggest that the proper remedy is a limited remand to allow
18 the district court to issue a corrected statement of
19 reasons. See United States v. Verkhoglyad, 516 F.3d 122,
20 133 (2d Cir. 2008). (The government does not oppose such a
21 remand here.) So although we affirm the sentence in all
22 respects, we will remand this case to the district court so
23 that a corrected statement of reasons may be issued.
24
25 3. Nelson argues that his 25-year sentence is so long
26 as to be substantively unreasonable. The precise sentence
27 chosen by the district court, if within lawful bounds, is
28 reviewed only for an abuse of discretion. Gall v. United
29 States, 552 U.S. 38, 51 (2007). That highly deferential
30 standard “provide[s] a backstop for those few cases that,
31 although procedurally correct, would nonetheless damage the
32 administration of justice because the sentence imposed was
33 shockingly high, shockingly low, or otherwise unsupportable
34 as a matter of law.” United States v. Rigas, 583 F.3d 108,
35 123 (2d Cir. 2009). Given Nelson’s extensive criminal
36 history, well-documented in the pre-sentence report and in
37 open court at the sentencing hearing, the district court did
38 not abuse its discretion in imposing a 25-year sentence.
39
40 ***
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1 For the foregoing reasons, and finding no merit in
2 Nelson’s other arguments, we hereby AFFIRM the judgment of
3 the district court, and REMAND for the limited purpose of
4 allowing the district court to issue a corrected statement
5 of reasons.
6
7 FOR THE COURT:
8 CATHERINE O’HAGAN WOLFE, CLERK
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