16-2616
United States v. Facen
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 20th day of July, two thousand seventeen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 16-2616
16
17 TABARI FACEN,
18 Defendant-Appellant.
19
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21
22
23 FOR APPELLANT: ROBIN CHRISTINE SMITH, San
24 Rafael, California.
25
26 FOR APPELLEE: MONICA J. RICHARDS, for
27 James P. Kennedy, Jr.,
28 Acting United States
1
1 Attorney for the Western
2 District of New York.
3
4 Appeal from a judgment of the United States District
5 Court for the Western District of New York (Larimer, J.).
6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
7 AND DECREED that the judgment of the district court be
8 AFFIRMED.
9 Tabari Facen appeals from the judgment of the United
10 States District Court for the Western District of New York
11 (Larimer, J.) sentencing him to ten years’ imprisonment. We
12 assume the parties’ familiarity with the underlying facts,
13 the procedural history, and the issues presented for review.
14 We affirm because any delay in giving Facen a copy of his
15 Presentence Report (“PSR”) was harmless error.
16 In 2013, Facen was convicted after a jury trial on
17 various gun and drug counts. The district court then
18 partially overturned the jury verdict by granting a partial
19 motion for acquittal, and it sentenced Facen to 41 months’
20 imprisonment on the surviving counts of conviction. On
21 appeal, this Court vacated the district court’s ruling of
22 acquittal and remanded the case for resentencing. United
23 States v. Facen, 812 F.3d 280, 290 (2d Cir. 2016). This
24 Court’s decision triggered a mandatory minimum, and Facen
25 was resentenced to ten years’ imprisonment on July 13, 2016.
2
1 Federal Rule of Criminal Procedure 32(e) requires that
2 the probation officer “give the presentence report to the
3 defendant, the defendant's attorney, and an attorney for the
4 government at least 35 days before sentencing.” While
5 Facen’s attorney received the PSR several months before the
6 July 13, 2016 resentencing, Facen himself only received a
7 copy of the PSR 30 days before the sentencing date. Facen
8 challenges his sentence on the basis of that five-day gap
9 between the date he was supposed to receive the PSR and the
10 date he actually received it.
11 We see no good reason why–-when the defendant asked and
12 the rule expressly required–-the district court did not
13 adjourn for five days. However, procedural sentencing
14 mistakes such as this one are subject to harmless error
15 review. United States v. Jass, 569 F.3d 47, 68 (2d Cir.
16 2009). Facen’s counsel had the PSR several months before
17 sentencing, Facen himself had the PSR 30 days before
18 sentencing, and the 2016 PSR was virtually identical to the
19 one from 2013. It is clear that the district court would
20 have sentenced Facen to the same prison term even if he had
21 received the PSR five days earlier, and the error is
22 therefore harmless. Id.
3
1 For the foregoing reasons, and finding no merit in
2 Facen’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, CLERK
8
4