     14-367
     United States of America v. Faustin

                          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 30th day of April, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                PETER W. HALL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       United States of America,
13                Appellee,
14
15                    -v.-                                               14-367
16
17       Flaubert Faustin,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Murray Singer, Law Office of
22                                             Murray E. Singer, Port
23                                             Washington, New York.
24
25       FOR APPELLEE:                         Christopher L. Nasson, Jo Ann M.
26                                             Navickas, Assistant United
27                                             States Attorneys (for Kelly T.
28                                             Currie, Acting United States

                                                  1
 1                              Attorney for the Eastern
 2                              District of New York), Brooklyn,
 3                              New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Eastern District of New York (Irizarry, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the sentence imposed by the district court
10   be VACATED, and the case REMANDED for resentencing.
11
12        Flaubert Faustin appeals from the judgment of the
13   United States District Court for the Eastern District of New
14   York (Irizarry, J.), sentencing him to 24 months’
15   imprisonment for violating the conditions of his supervised
16   release. See 18 U.S.C. § 3583(e)(3). We assume the
17   parties’ familiarity with the underlying facts, the
18   procedural history, and the issues presented for review.
19
20        Faustin contends that the 24-month sentence is both
21   procedurally and substantively unreasonable. We agree that
22   the district court committed procedural error, so we vacate
23   the judgment and remand for resentencing. We do not address
24   Faustin’s argument that the sentence was so long as to be
25   substantively unreasonable.
26
27        1. “We review a challenged sentence for
28   reasonableness. This inquiry has both procedural and
29   substantive components.” United States v. Friedberg, 558
30   F.3d 131, 133 (2d Cir. 2009) (internal citation and
31   quotation marks omitted).
32
33        Examples of procedural error include “failing to
34   calculate (or improperly calculating) the Guidelines range,
35   treating the Guidelines as mandatory, failing to consider
36   the § 3553(a) factors, selecting a sentence based on clearly
37   erroneous facts, or failing to adequately explain the chosen
38   sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
39
40        Unpreserved claims of procedural error are reviewed
41   under the plain error standard. United States v.
42   Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). On plain
43   error review, “an appellate court may, in its discretion,
44   correct an error not raised” before the district court
45
46            only where the appellant demonstrates that (1)
47            there is an error; (2) the error is clear or

                                  2
 1            obvious, rather than subject to reasonable
 2            dispute; (3) the error affected the appellant's
 3            substantial rights, which in the ordinary case
 4            means it affected the outcome of the district
 5            court proceedings; and (4) the error seriously
 6            affects the fairness, integrity or public
 7            reputation of judicial proceedings.
 8
 9   United States v. Marcus, 560 U.S. 258, 262 (2010) (internal
10   quotation marks omitted).
11
12        If a sentence is procedurally sound, the Court then
13   reviews its substance. “We will set aside sentences as
14   substantively unreasonable only in exceptional cases where
15   the trial court’s decision cannot be located within the
16   range of permissible decisions.” United States v.
17   Thavaraja, 740 F.3d 253, 259 (2d Cir. 2014) (internal
18   quotation marks omitted).
19
20        2. During Faustin’s plea allocution, the district
21   court asked Faustin several questions about whether he knew
22   what he did was wrong. Each time, Faustin answered that he
23   did. See Hr’g Tr. at 24 (Q: “Did you understand that you
24   were committing a crime by doing that?”; A: “Of course I
25   understand that, yeah, yes.”); Hr’g Tr. at 33 (“It was hard
26   for me, but I knew it was wrong.”).
27
28        However, one justification stated by the court for
29   imposing the statutory maximum sentence was that Faustin was
30   “act[ing] like [he] didn’t really know that it was wrong
31   . . . to have a phony driver’s license.” Hr’g Tr. at 34.
32   The district court implied that Faustin was being dishonest,
33   and threatened to “have the prosecutor go ahead and indict
34   [Faustin] for perjury.” Hr’g Tr. at 24.
35
36        By “selecting a sentence based on clearly erroneous
37   facts,” the district court erred. Gall, 552 U.S. at 51.
38   That error was plain--no reasonable reader of the hearing
39   transcript could conclude that Faustin was “act[ing] like
40   [he] didn’t really know that it was wrong . . . to have a
41   phony driver’s license.” Hr’g Tr. at 34.
42
43        As to the third prong of the plain error test, Faustin
44   has satisfied his burden to show a “reasonable probability
45   that the error affected the outcome” of the sentencing
46   proceedings. Marcus, 560 U.S. at 262. The district court
47   explicitly cited the misinterpreted comments and Faustin’s

                                  3
 1   perceived dishonesty as justification for imposition of the
 2   statutory maximum sentence. See Hr’g Tr. at 34.
 3
 4        Finally, we exercise our discretion to correct the
 5   error under the fourth prong of the plain error test,
 6   because allowing the error to stand would “seriously
 7   affect[] the fairness . . . of judicial proceedings.”
 8   Marcus, 560 U.S. at 262. Apparently because of a
 9   significant factual misunderstanding, Faustin was sentenced
10   to the statutory maximum sentence--above the guidelines
11   range, and above the government’s recommendation. And
12   correcting the error would not entail a significant further
13   investment of judicial resources.
14
15        We vacate the sentence as procedurally unreasonable and
16   remand for resentencing.
17
18        3. Faustin also contends that the 24-month sentence
19   was substantively unreasonable. Because we vacate the
20   sentence as procedurally unreasonable, we express no view on
21   substantive unreasonableness.
22
23                            *    *   *
24
25        For the foregoing reasons, we hereby VACATE the
26   sentence imposed by the district court, and REMAND for
27   resentencing. Because Faustin has by now served at least 15
28   months of his 24-month sentence, the mandate shall issue
29   forthwith.
30
31                                FOR THE COURT:
32                                CATHERINE O’HAGAN WOLFE, CLERK
33




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