18-434-cr
United States of America v. Brown


                             UNITED STATES COURT OF APPEALS

                                    FOR THE SECOND CIRCUIT

                                        August Term 2018

       Argued: June 10, 2019                     Decided: August 16, 2019

                                       Docket No. 18‐434‐cr

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
UNITED STATES OF AMERICA,

               Appellee,

                       v.

LAWRENCE BROWN,

         Defendant‐Appellant.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

Before: NEWMAN, HALL, and CHIN, Circuit Judges.

       Appeal from the February 7, 2018, judgment of the District Court for the

Southern District of New York (Nelson S. Román, District Judge) sentencing

Lawrence Brown to an aggregate sentence of 39 years for firearms and robbery

offenses.




                                             1
      Court of Appeals rules that Dean v. United States, 137 S. Ct. 1170 (2017), has

abrogated the Court’s decision in United States v. Chavez, 549 F.3d 119 (2d Cir.

2008), and permits sentencing judges to consider the severity of mandatory

consecutive minimum sentences required by 18 U.S.C. § 924(c) in determining

sentences for underlying predicate offenses. Encountering uncertainty whether

sentencing judge was aware of the discretion authorized by Dean, court remands

for resentencing.

      Convictions affirmed in summary order filed this day; case remanded for

resentencing.



                               John S. Wallenstein, Law Office of John S.
                                    Wallenstein, Garden City, NY for
                                    Defendant‐Appellant Lawrence Brown.

                               Allison Nichols, Asst. U.S. Atty., New York, NY
                                     (Geoffrey S. Berman, U.S. Atty., Anden
                                     Chow, Daniel B. Tehrani, Asst. U.S. Attys.,
                                     on the brief), for Appellee United States of
                                     America.


JON O. NEWMAN, Circuit Judge:

      This appeal presents two sentencing issues. One issue is whether a district

judge is permitted to consider the severity of one or more mandatory consecutive

minimum sentences imposed for firearms offenses under 18 U.S.C. § 924(c) when

                                         2
the judge selects sentences for underlying predicate offenses. The Supreme Court

has recently ruled that such severity may be considered. See Dean v. United States,

137 S. Ct. 1170 (2017). The other issue is whether a court of appeals, encountering

uncertainty as to whether a sentencing judge was aware of the discretion

permitted by Dean should (a) remand for clarification of the sentencing judge’s

understanding of the discretion permitted by Dean, with resentencing required

only if the judge was not aware of such discretion, or (b) remand for resentencing.

      These issues arise on an appeal by Lawrence Brown from the February 7,

2018, judgment of the District Court for the Southern District of New York (Nelson

S. Román, District Judge) sentencing him to 39 years’ imprisonment. Concurrent

terms of 7 years (84 months) were imposed for two robberies in violation of 18

U.S.C. § 1951, a mandatory consecutive sentence of 7 years was imposed for

brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii), and a mandatory consecutive sentence of 25 years was imposed

for a second firearms offense in furtherance of a crime of violence in violation of

18 U.S.C. §§ 924(c)(1)(A)(ii), (C)(i).

      In a summary order filed this day, we have rejected Brown’s challenges to

all four convictions. In this opinion, we consider issues arising from Brown’s



                                         3
sentence. First, we conclude that the Supreme Court’s decision in Dean has

abrogated this Court’s decision in United States v. Chavez, 549 F.3d 119, 135 (2d Cir.

2008), which had precluded a sentencing judge from considering the severity of

mandatory consecutive minimum sentences required by section 924(c) in

determining     sentences   for   underlying   predicate    counts;   Dean   permits

consideration of such severity. We then explain why we encounter uncertainty as

to whether Judge Román was aware of the discretion that Dean allowed him to

exercise and why we conclude that the appropriate disposition is to remand for

resentencing.

                                    Background

      Brown was convicted of robbing at gunpoint a Rite‐Aid pharmacy in

November 2013 and a ShopRite grocery in April 2014. He brandished a firearm at

employees in both stores, tied their hands, and took money from the stores’ safes.

A jury found Brown guilty of the two robbery offenses and the two firearms

offenses.

      At sentencing, defense counsel argued that, in view of the severity of the

mandatory consecutive minimum sentences on the firearms counts, Judge Román

should impose lenient sentences on the robbery counts. He specifically suggested



                                          4
one day on each robbery count, which would have resulted in an aggregate

sentence of 32 years and two days. The presentence report calculated a Guidelines

range of 70 to 87 months for the robbery offenses. Judge Román imposed

concurrent sentences of 84 months (7 years) on the two robbery counts and

consecutive sentences of 7 and 25 years, respectively, on the two firearms counts

for an aggregate sentence of 39 years.1 Judge Román did not say whether he had

considered the severity of the mandatory consecutive minimum firearms

sentences in determining the sentences on the robbery counts.

                                           Discussion

       In 2008, we ruled that a sentencing judge was not permitted to consider the

severity of mandatory consecutive minimum sentences under section 924(c) in

determining sentences on underlying predicate offenses. See United States v.

Chavez, 549 F.3d 119, 135 (2d Cir. 2008). In 2017, the Supreme Court abrogated that



       1  Subsection 924(c)(1)(C) was amended last year to provide that only a second section
924(c) conviction “that occurs after a prior conviction under [section 924(c)] has become final”
requires the consecutive minimum 25‐year sentence provided by subsection 924(c)(1)(C)(i). See
First Step Act of 2018 (“the Act”), Pub. L. No. 115‐391, § 403(a), 132 Stat. 5194, 5221–22. The new
provision applies only “going forward,” United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019), and
therefore provides no benefit to Brown in the pending appeal at this point. However, at the
resentencing, which will occur as a result of our remand, Brown will have the opportunity to
argue that he is nevertheless entitled to benefit from section 403(b) of the Act, which provides:
“[T]he amendment[] . . . shall apply to any offense that was committed before the date of
enactment of this Act, if a sentence for the offense has not been imposed as of such date of
enactment.”
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decision, ruling that such severity may be “considered.” Dean v. United States, 137

S. Ct. 1170, 1175–78 (2017).2

       There is a slight ambiguity in Dean as to the sentencing judge’s options in

selecting a sentence on an underlying predicate offense. The unanimous opinion

of Chief Justice Roberts initially states that the “question presented is whether, in

calculating the sentence for the predicate offense, a judge must ignore the fact that

the defendant will serve the mandatory minimums imposed under § 924(c),” id. at

1174 (emphasis added), and later states that “the District Court could not

reasonably ignore the deterrent effect of [the defendant’s] mandatory minimum,”

id. at 1176 (emphasis added). A prohibition on “ignor[ing]” a section 924(c)

mandatory consecutive minimum sentence might imply that the sentencing judge

is required to consider such a sentence in determining a sentence for the predicate

offense. However, in passages set forth in the margin,3 the Chief Justice’s opinion


       2  We previously noted Dean’s possible impact on Chavez. See United States v. Pike, 717 F.
App’x 9, 11–12 (2d Cir. 2017) (declining to consider issue); United States v. Bonilla, 700 F. App’x
82, 84 (2d Cir. 2017) (same).
        3 “As a general matter, [various] provisions permit a court imposing a sentence on one

count of conviction to consider sentences imposed on other counts.” Dean, 137 S. Ct. at 1176
(emphases added). “Nothing in § 924(c) restricts the authority conferred on sentencing courts by
§ 3553(a) and [other] provisions to consider a sentence imposed under § 924(c) when calculating a
just sentence for the predicate count.” Id. at 1176–77 (emphasis added). A limitation imposed by
subsection 924(c)(1)(A) “says nothing . . . about what information a court may consider in
determining [a predicate] sentence.” Id. at 1177 (emphasis added). “The bar on imposing
concurrent sentences does not affect a court’s discretion to consider a mandatory minimum when
calculating each individual sentence.” Id. (emphasis added).
                                                6
repeatedly makes the point that a sentencing judge is permitted to consider a

mandatory consecutive minimum sentence when calculating a sentence for a

predicate offense. We think that the Court in Dean intended to rule that a

sentencing judge, selecting a sentence for a predicate offense, was not prohibited

from considering the severity of a mandatory consecutive minimum sentence, and

has the discretion, but not the obligation, to consider such severity. Because

Brown’s case is pending on direct review, Dean, thus understood, is applicable. See

United States v. Booker, 543 U.S. 220, 268 (2005); Griffith v. Kentucky, 479 U.S. 314,

328 (1987).

      On appeal, Brown renews his argument that Judge Román should have

imposed minimal sentences, i.e., one day, on the robbery counts in view of the

severity of the mandatory consecutive minimum 7‐ and 25‐year sentences on the

firearms counts. Although Brown did not explicitly argue in the District Court that

Judge Román was unaware of the discretion permitted by Dean, nor make such a

contention on appeal, we are satisfied that his plea for minimal one‐day sentences

on the robbery counts adequately preserved a claim that the sentencing judge was

permitted to consider the severity of the sentences on the firearms counts.




                                          7
      That conclusion raises the issue whether the sentencing judge erred by

imposing the concurrent 84‐month sentences on the predicate robbery counts in

the absence of any indication that he was aware of his discretion to consider the

severity of the mandatory consecutive section 924(c) sentences. Although “[w]e

may generally assume ‘that the sentencing judge understood all the available

sentencing options,’” United States v. Preacely, 628 F.3d 72, 80 (2d Cir. 2010)

(quoting United States v. Sanchez, 517 F.3d 651, 665 (2d Cir. 2008)) (unclear whether

sentencing judge “understood” option to depart from career offender guideline,

U.S.S.G. § 4B1.1(b)), that assumption is not warranted in the unusual

circumstances of this case. First, the Supreme Court has decided Dean, removing

the prohibition on considering the severity of mandatory consecutive minimum

sentences under section 924(c). Second, our decision in Chavez, precluding

consideration of the severity of such sentences, had not been disavowed by this

Court, even though abrogated by the Supreme Court in Dean. Third, neither the

prosecutor nor the defense counsel called Dean to the attention of the sentencing

judge, and it was not mentioned in the presentence report. Under these

circumstances, we are uncertain whether Judge Román was aware of the discretion

permitted by Dean.



                                          8
       That uncertainty raises the further issue of the appropriate disposition an

appellate court should make of a sentencing appeal when it is not clear whether a

sentencing judge was aware of or understood a relevant aspect of sentencing law.

There are two possibilities. One is to remand to afford the sentencing judge the

opportunity to clarify whether he was aware of the discretion permitted by Dean,

and, if not, then to vacate the sentence and resentence. The other is simply to

remand for resentencing. This Court has used both types of remand in comparable

circumstances.

       In several cases of uncertainty on our part, we remanded for clarification.

See, e.g., United States v. Regalado, 518 F.3d 143, 147–49 (2d Cir. 2008) (uncertainty

whether sentencing judge “understood” discretion to impose non‐Guidelines

sentence because of disparity between sentences for cocaine base and cocaine

powder offenses);4 United States v. Keller, 539 F.3d 97, 101–02 (2d Cir. 2008) (same;

remanded pursuant to Regalado); Sanchez, 517 F.3d at 665 (uncertainty concerning

sentencing judge’s understanding of 28 U.S.C. § 994(h)); United States v. Rivers, 50

F.3d 1126, 1129–31 (2d Cir. 1995) (uncertainty whether sentencing judge relied on




       4 The statement of the holding in the Westlaw report incorrectly states, “The Court of
Appeals held that case had to be remanded to district court for resentencing.” Regalado, 518 F.3d
at 143 (Westlaw statement of Holding); see also id. at 145 (Westlaw headnote No. 14).
                                               9
“erroneous belief” in not making Guidelines departure and employed the correct

legal standard in making its relatedness finding); United States v. Ogbondah, 16 F.3d

498, 501 (2d Cir. 1994) (uncertainty whether sentencing judge “understood”

authority to depart from Guidelines because of “bureaucratic confusion that led to

the loss of sentence credit”); United States v. Ritchey, 949 F.2d 61, 63 (2d Cir. 1991)

(uncertainty whether sentencing judge had “mistaken conception” of authority to

depart from Guidelines for various reasons); United States v. Sharpsteen, 913 F.2d

59, 63‐64 (2d Cir. 1990) (uncertainty whether sentencing judge “recognized”

authority to depart from Guidelines because of family ties and responsibilities).5

       In several other cases of uncertainty on our part, we remanded for

resentencing. See, e.g., United States v. Jones, 531 F.3d 163, 181–83 (2d Cir. 2008)

(uncertainty concerning sentencing judge’s “understanding” of discretion to

consider disparity between sentences for cocaine base and cocaine powder

offenses); United States v. Toohey, 448 F.3d 542, 546 (2d Cir. 2006) (uncertainty

whether sentencing judge “felt compelled” to impose Guidelines sentence); United


       5  We also remanded for clarification in the somewhat similar situation where, in the
aftermath of the remedy opinion in Booker, 543 U.S. at 244–68, rendering the Guidelines advisory,
we knew the sentencing judge had been unaware of the discretion that Booker would
subsequently authorize, but were uncertain whether the sentencing judge would have imposed
virtually the same sentence as had been imposed under the mandatory Guidelines regime. See
United States v. Crosby, 397 F.3d 103, 117–19 (2d Cir. 2005), abrogated in part on other grounds as
recognized in United States v. Lake, 419 F.3d 111, 113 n.2 (2d Cir. 2005).
                                                10
States v. Thorpe, 191 F.3d 339, 344 (2d Cir. 1999) (uncertainty whether sentencing

judge “correctly understood” that probationary sentence could be imposed

without making Guidelines departure); United States v. Sweeney, 90 F.3d 55, 58 (2d

Cir. 1996) (uncertainty whether sentencing judge “might have misapprehended”

effect of Sentencing Commission’s policy statement), abrogated in part as recognized

in United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); United States v. Ekhator,

17 F.3d 53, 55–56 (2d Cir. 1994) (uncertainty whether sentencing judge “was

aware” of authority to depart from Guidelines sentencing range because of

extraordinary family circumstances); United States v. Speenburgh, 990 F.2d 72, 75

(2d Cir. 1993) (uncertainty whether sentencing judge “understood” authority to

give minor role adjustment, see U.S.S.G. § 3B1.2); United States v. Califano, 978 F.2d

65, 66 (2d Cir. 1992) (uncertainty whether sentencing judge erroneously believed

himself without authority to depart under Guidelines for extraordinary family

circumstances); United States v. Rogers, 972 F.2d 489, 495 (2d Cir. 1992) (uncertainty

whether sentencing judge was aware of authority to depart from Guidelines

sentencing range despite defendant’s career offender status).6



       6 We also remanded for resentencing in Lake, 419 F.3d at 114, in the situation, similar to
Crosby, 397 F.3d at 117–19, where we were uncertain whether the sentencing judge would have
imposed virtually the same sentence as had been imposed under the mandatory Guidelines
regime, but, unlike Crosby, the Booker error had been preserved, obviating plain error analysis.
                                               11
      In one case, United States v. Preacely, a divided panel reflected both

approaches. Encountering an “ambiguity,” 628 F.3d at 80, as to whether the

sentencing judge understood the option to make a horizontal departure from the

career offender guideline, U.S.S.G. § 4B1.1(b), Judge Wallace, sitting by

designation, with the concurrence of Judge Lynch, explained why the remand

should be for resentencing. See Preacely, 628 F.3d at 82 n.2. Judge Raggi, in dissent,

explained why a remand only for clarification was appropriate. See id. at 87.

      There are considerations supporting both approaches. A remand for

clarification, with resentencing to follow only if the sentencing judge indicates a

prior misunderstanding, avoids the inconvenience and expense of returning the

defendant to court in the event that the judge explains that no misunderstanding

existed, and the sentence therefore remains undisturbed. On the other hand, a

remand for resentencing avoids the risk of the appearance that the sentencing

judge has unjustifiably claimed a correct prior understanding. Although we are

confident that district judges will faithfully report their true prior understanding,

some defendants and perhaps some defense counsel would likely be suspicious.

      We see no reason to express a categorical preference for either approach.

Instead, we think an appellate court should make an individualized decision



                                         12
whether to remand for clarification or resentencing, taking into account all the

relevant circumstances, including those giving rise to the ambiguity that the court

encounters.7 In the pending appeal, we conclude that a remand for resentencing is

appropriate in light of our now‐abrogated decision in Chavez and the failure of

both counsel and the Probation Office to bring Dean to the District Court’s

attention. Resentencing will also afford Brown the opportunity to argue that he

should benefit from section 403(b) of the First Step Act of 2018. See footnote 1,

supra.

         Brown also challenges the substantive unreasonableness of his aggregate 39‐

year sentence. We need not consider that argument because we are remanding for

resentencing.

                                           Conclusion

         We therefore remand for resentencing. Should any appeal ensue after

resentencing, either party may restore our jurisdiction pursuant to the procedure

outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), in which event

the appeal will be referred to this panel.




         7
        We would not remand for clarification or resentencing “if the record indicated clearly
that the district court would have imposed the same sentence had it had an accurate
understanding of its authority.” Sanchez, 517 F.3d at 665. There is no such indication in this case.
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