United States v. Nelson

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. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 13-3025 16 17 DION NELSON, also known as “Booquan,” 18 Defendant-Appellant. 19 - - - - - - - - - - - - - - - - - - - -X 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 *** 41 42 43 44 45 46 47 4 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 9 10 11 12 5