11-2958-cr
United States v. Green

                              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.

       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 fourteen.

PRESENT:
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
            SUSAN L. CARNEY,
                         Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                           No. 11-2958-cr

MONTAQUE GREEN, AKA Q, AKA U,

                        Defendant-Appellant.
_____________________________________

FOR APPELLEE:                                  NICOLE BOECKMANN (Peter A. Norling, on the brief),
                                               Assistant United States Attorneys, for Loretta E.
                                               Lynch, United States Attorney for the Eastern
                                               District of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                       JOSEPH W. RYAN, JR., Mellville Law Center,
                                               Mellville, NY.

          Appeal from a judgment of the United States District Court for the Eastern District of New

York (Seybert, J.).
        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the sentence imposed by the District Court is VACATED and the case is

REMANDED for resentencing consistent with this order.

        Defendant-Appellant Montaque Green (“Green”) pleaded guilty to one count of conspiracy

to distribute and to possess with intent to distribute more than 50 grams of cocaine base in violation

of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii). The District Court sentenced Green principally

to 120 months’ imprisonment. Green appeals his sentence, arguing that the District Court erred at

his sentencing by not applying the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

(“FSA”). See Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012) (holding that the FSA applies to

sentencing proceedings occurring after August 3, 2010). The government concedes that the District

Court erred, but maintains that the error was harmless.

        Under the Anti-Drug Abuse Act of 1986, an offender like Green—who conspired to sell

more than 50 grams of cocaine base—potentially faced a mandatory minimum of ten years’

incarceration. 21 U.S.C. §§ 841, 846 (2006). The FSA reduced from ten to five years the mandatory

minimum sentence for offenses involving between 28 and 280 grams of cocaine base. 21 U.S.C.

§ 841(b)(1)(B)(iii) (2012). The government and Green agree that, because Green was sentenced on

May 31, 2011—after the FSA’s August 3, 2010 effective date—the FSA affects any mandatory

minimum sentence that might have applied. See Dorsey, 132 S. Ct. at 2335. Both parties also agree,

however, that under the circumstances presented here, the District Court was not bound by any

mandatory minimum provisions.

        When we identify a procedural error in sentencing, we may deem the error harmless if “the

record indicates clearly that the district court would have imposed the same sentence in any event.”

United States v. Baldwin, -- F.3d --, 2014 WL 657949, at *3 (2d Cir. Feb. 21, 2014) (internal quotation

marks omitted); see also United States v. Sanchez, 517 F.3d 651, 665 (2d Cir. 2008); Fed. R. Crim. P.

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52(a). Here, we cannot comfortably conclude that the District Court’s error (as Dorsey later held it to

be) did not affect the sentence the court imposed. At sentencing, the court expressly adopted the

Probation Department’s presentence report, which advised that “[t]he minimum term of

imprisonment is 10 years and the maximum is life.” The court also acknowledged the Probation

Department’s separately delivered sentencing recommendation of ten years’ incarceration, which the

Probation Department described as “the statutory minimum, and . . . viewed as appropriate in

meeting the need for punishment and deterrence.” Additionally, in their presentencing submissions

to the court, both defense counsel and the government referred to the “mandatory minimum” term

of ten years’ imprisonment and, during sentencing, the government mentioned that a ten-year term

was the “mandatory minimum.”

       It is true that the District Court acknowledged at sentencing that the mandatory minimum

was inapplicable and commented, among other things, that the ten-year sentence was “sufficient, no

more than necessary, in meeting” the goals of 18 U.S.C. § 3553(a). But on this record as a whole, we

cannot be confident that the District Court would have imposed the same ten-year sentence had it

(as well as the Probation Department and counsel) correctly recognized the FSA’s five-year

mandatory minimum. Accordingly, we remand this case to the District Court for resentencing.



                                          CONCLUSION

       For the reasons stated above, we VACATE the sentence imposed and REMAND the case

to the District Court for resentencing.

                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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