United States v. Smith , 617 F. App'x 21 ( 2015 )

13-2147
United States v. Smith
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 19th day of June, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 REENA RAGGI,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-2147
16
17 BRIAN AVERY SMITH,
18 Defendant-Appellant.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: HERBERT L. GREENMAN, Lipsitz
22 Green Scime Cambria LLP,
23 Buffalo, New York.
24
25 FOR APPELLEE: MONICA RICHARDS (with Joseph J.
26 Karaszewski on the brief) for
27 William J. Hochul, Jr., United
28 States Attorney for the Western
29 District of New York, Buffalo,
30 New York.
1
2 Appeal from a judgment of the United States District
3 Court for the Western District of New York (Arcara, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the judgment of the district court be
7 REMANDED.
8
9 Brian Avery Smith challenges the reasonableness of the
10 sentence imposed, after a plea agreement entered for
11 violations of his probation, in the United States District
12 Court for the Western District of New York (Arcara, J.). We
13 assume the parties’ familiarity with the underlying facts,
14 the procedural history, and the issues presented for review.
15
16 By the time of the sentencing hearing on the probation
17 violations, Smith had been incarcerated for 14 months.
18 Smith requested a within-guidelines sentence of between four
19 and ten months. Defense counsel advocated for a guidelines
20 sentence because he hoped that any term of incarceration
21 above that range could be attributed to a future sentence if
22 there was a conviction or guilty plea to other then-pending
23 charges. The government advocated for a sentence at the
24 highest end of the guideline range.
25
26 The record is not clear as to whether the court
27 intended to impose an above-guidelines sentence of time
28 served (14 months) or to impose a sentence within the
29 guidelines range. Compare Sentencing Tr. at 9:3-10, United
30 States v. Smith, No. 11-CR-024 (W.D.N.Y. May 10, 2013)
31 (discussing possibility of consecutive sentence totaling 13
32 months), with id. at 11:21-22 (“I have sentenced to time
33 served, which is within the guidelines range.”). And, if
34 the court intended an above-guidelines sentence achieved
35 through consecutive terms, an in-court statement of reasons
36 was required. See 18 U.S.C. § 3553(c)(2); United States v.
37 Lewis, 424 F.3d 239, 245 (2d Cir. 2005).
38
39 We therefore remand in accordance with the procedure
40 set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d
41 Cir. 1994), for the district court to clarify whether it
42 intended to impose an above-guidelines sentence of
43 consecutive terms totaling 14 months, and if so, for a
44 statement of reasons pursuant to 18 U.S.C. § 3553(c)(2).
45 The government does not object to the district court holding
46 a hearing for this purpose.
47
2
1 For the foregoing reasons, we hereby REMAND the
2 judgment of the district court for further proceedings
3 consistent with this order.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
3