16-529
United States v. Shaday

                    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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
31st day of March, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         DEBRA ANN LIVINGSTON,
              Circuit Judges,
         LEWIS A. KAPLAN,
              District Judge.

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UNITED STATES OF AMERICA,
         Appellee,

             -v.-                                                  16-529

YOVA KANA SHADAY, AKA LUCAS AVRAM, AKA LUCAS
AMRAM, AKA LUCIS ARON,
         Defendant-Appellant.

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
 Judge Lewis A. Kaplan, of the United States District Court for
the Southern District of New York, sitting by designation.
                                           1
FOR APPELLANT:                    Philip L. Weinstein, Federal
                                  Defenders of New York, Inc.,
                                  New York, NY.

FOR APPELLEE:                     Michael P. Robotti, Susan
                                  Corkery, Assistant United
                                  States Attorneys, for Bridget
                                  M. Rohde, Acting United
                                  States Attorney for the
                                  Eastern District of New York,
                                  Brooklyn, NY.

     Appeal from a judgment of the United States District Court
for the Eastern District of New York (Korman, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the sentence of the district court be AFFIRMED in
part and VACATED and REMANDED in part.

     Defendant Yova Kana Shaday, who pleaded guilty to failing
to register as a sex offender in violation of 18 U.S.C.
§ 2250(a), appeals from the supervised release part of his
sentence. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     “Our review of criminal sentences includes both procedural
and substantive components and amounts to review for abuse of
discretion.” United States v. McIntosh, 753 F.3d 388, 393-94
(2d Cir. 2014) (per curiam) (internal quotation marks omitted).
“A district court commits procedural error where it fails to
calculate the Guidelines range . . . , makes a mistake in its
Guidelines calculation, or treats the Guidelines as mandatory.”
United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en
banc).

     The district court sentenced Shaday to a term of
twenty-four months’ imprisonment (which was within the
Guidelines range of twenty-four to thirty months) followed by
ten years’ supervised release. The ten-year term of supervised
release was within the three-years-to-life Guidelines range
calculated by the Probation Department and adopted by the


                              2
district court. However, as the government concedes, this
calculation was incorrect. The correct supervised release
Guidelines range was a fixed term of five years, half the
sentence imposed.1

     Because Shaday did not object to the Guidelines calculation
at the time of sentencing, we review for plain error. United
States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007).
Under this standard, the defendant must demonstrate that:

         (1) there is an error; (2) the error is clear or
         obvious, rather than subject to reasonable dispute;
         (3) the error affected the appellant’s substantial
         rights, which in the ordinary case means it affected
         the outcome of the district court proceedings; and (4)
         the error seriously affects the fairness, integrity
         or public reputation of judicial proceedings.

United States v. Marcus, 560 U.S. 258, 262 (2010) (brackets and
internal quotation marks omitted).

     The miscalculation of the Guidelines range -- three years
to life rather than a fixed term of five years -- constitutes
plain error. See Molina-Martinez v. United States, 136 S. Ct.
1338, 1349 (2016) (observing that “a defendant sentenced under
an incorrect Guidelines range should be able to rely on that
fact to show a reasonable probability that the district court
would have imposed a different sentence under the correct range”
and that “[t]hat probability is all that is needed to establish
an effect on substantial rights”); United States v. Dorvee, 616
1
  Section 5D1.2(c) of the Guidelines provides that “[t]he term
of supervised release imposed shall not be less than any
statutorily required term of supervised release.” Because the
statutory minimum term of supervised release for a violation
of 18 U.S.C. § 2250 is five years, see 18 U.S.C. § 3583(k), which
exceeds the one- to three-year term otherwise applicable to
Shaday under § 5D1.2(a)(2), and because the failure to register
as a sex offender does not constitute a “sex offense” under
§ 5D1.2(b)(2) (providing for a supervised release term of up
to life), § 5D1.2(c) converts Shaday’s supervised release
Guidelines range to a fixed term of five years. See U.S.S.G.
§ 5D1.2, cmt. n.6.
                               3
F.3d 174, 182 (2d Cir. 2010) (“If the district court
miscalculates the typical sentence at the outset, it cannot
properly account for atypical factors and we, in turn, cannot
be sure that the court has adequately considered the § 3553(a)
factors. That is what happened here, and constitutes
procedural error.”).

     Although we may deem an error harmless if “the record
indicates clearly that the district court would have imposed
the same sentence in any event,” United States v. Mandell, 752
F.3d 544, 553 (2d Cir. 2014), there is no such indication as
to the term of supervised release here. See Molina-Martinez,
136 S. Ct. at 1348 (stating that “there [was] at least a
reasonable probability that the District Court would have
imposed a different sentence” absent the miscalculated
Guidelines range when the court “said nothing to suggest that
it would have imposed [the same] sentence regardless of the
Guidelines range”). The court mistakenly believed it was
imposing a within-Guidelines sentence,2 and it therefore had no
occasion to consider an upward departure. Remand is
appropriate so that the district court may determine Shaday’s
term of supervised release in light of the correct Guidelines
calculation.

     Accordingly, the sentence of the district court is hereby
AFFIRMED in part and VACATED in part, and the case is REMANDED
for further proceedings consistent with this order.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




2
  In its Statement of Reasons, the district court checked the
box stating that “[t]he sentence is within an advisory guideline
range . . . and the court finds no reason to depart.”
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