15-229-cr
U.S. v. White
15-229-cr
U.S. v. White

                             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 20th day of July, two thousand sixteen.

PRESENT:        JOSÉ A. CABRANES,
                CHRISTOPHER F. DRONEY,
                             Circuit Judges,
                JEFFREY ALKER MEYER,
                             District Judge. *


UNITED STATES OF AMERICA,

                        Appellee,

                        v.                                           15-229-cr

DAWN A. WHITE,

                        Defendant-Appellant,

JENNIFER T. FORD,

                        Defendant.




         *
        The Honorable Jeffrey Alker Meyer, of the United States District Court for the District of
Connecticut, sitting by designation.

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15-229-cr
U.S. v. White
FOR APPELLEE:                                               Richard A. Resnick, Assistant United
                                                            States Attorney, for William J. Hochul, Jr.,
                                                            United States Attorney for the Western
                                                            District of New York, Rochester, NY.

FOR DEFENDANT-APPELLANT:                                    Devin McLaughlin, Langrock Sperry &
                                                            Wool, LLP, Middlebury, VT.

       Appeal from a judgment of the United States District Court for the Western District of New
York (Charles J. Siragusa, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the cause is REMANDED to the District Court for further
proceedings consistent with this order.

        Defendant-appellant Dawn A. White appeals the District Court’s amended judgment of
January 16, 2015 imposing a prison sentence of time served, restitution, and a three-year term of
supervised release. For the reasons that follow, we remand to the District Court for further
proceedings consistent with this order.

         In March 2013, White was convicted of one count of conspiring to file a false claim against
the United States, in violation of 18 U.S.C. § 286, and three counts of making or presenting a false
or fraudulent claim, in violation of 18 U.S.C. § 287. She was sentenced to thirty-three months’
imprisonment, restitution, and a three-year supervised-release term. See App. 13; United States v.
White, 571 F. App’x 20, 22-23 (2d Cir. 2014) (summary order).

        White appealed her conviction and sentence. White, 571 F. App’x at 22-23. We affirmed the
conviction but remanded for resentencing on the ground that the District Court had failed to make
the factual findings necessary for application of an enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i);
we instructed the Court to either make the requisite findings or sentence White without regard to
the enhancement. Id. at 26. At resentencing, White—emphasizing, among other factors, her
rehabilitation while incarcerated—sought a sentence of time served and a shortened term of
supervised release. The District Court (after deeming the enhancement inapplicable) imposed the
sentence described above, and White appealed.

         We have observed that “a court’s duty is always to sentence the defendant as he stands
before the court on the day of sentencing.” United States v. Quintieri, 306 F.3d 1217, 1230 (2d Cir.
2002) (internal quotation marks omitted). A district court is thus obliged at resentencing to take into
account such material changes in circumstance as have arisen since the original proceeding.
Acknowledging this principle, the parties agree that in fashioning a new sentence, the District Court
was not at liberty to ignore evidence of White’s post-sentencing rehabilitation. See Gov’t Br. at 9; see
also Pepper v. United States, 562 U.S. 476, 481 (2011); Quintieri, 306 F.3d at 1232. They also agree that

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U.S. v. White
the Court formed a mistaken impression to the contrary. See Gov’t Br. at 9; App. 67 (“I really don’t
think that in this case, Ms. White, . . . I am required to consider post sentencing rehabilitation . . . .”).

        Here White and the government part company. According to the government, “the district
court, while believing it was not required to [do] so, did in fact consider post-sentencing
rehabilitation” in imposing sentence. Gov’t Br. at 9. According to White, the District Court
“believed that the remand was limited to the single enhancement issue, and found that Ms. White’s
postsentencing rehabilitation did not change this limitation.” Def.’s Br. at 13.

         On our review of the record, we are unable to say with confidence whether the District
Court did or did not consider evidence of post-sentencing rehabilitation. We think that the judge’s
remarks are susceptible of multiple interpretations. One of those interpretations—perhaps the most
plausible one—is that he sentenced White without regard to her rehabilitation while in prison. This,
then, is a case in which “the judge’s sentencing remarks [have] create[d] ambiguity as to whether the
judge correctly understood” the relevant law. United States v. Preacely, 628 F.3d 72, 80 (2d Cir. 2010)
(internal quotation marks omitted); see also United States v. Toohey, 448 F.3d 542, 545 (2d Cir. 2006)
(“[W]here the record indicates misunderstanding by a district court as to the statutory requirements
and the sentencing range or ranges that are arguably applicable, or misperception about their
relevance, we may conclude that the requisite consideration has not occurred.”); United States v.
Montez-Gaviria, 163 F.3d 697, 703 (2d Cir. 1998) (“When the record is ambiguous as to whether a
district court has allowed a mistake of law to affect its sentencing decision, we have regularly
remanded to allow the court to reconsider its decision in light of our correction of the mistake.”).
We therefore “deem it prudent to remand” for the limited purpose of permitting the District Court
to consider whether White’s post-sentencing rehabilitation warrants a reduction in her term of
supervised release. See United States v. Thorpe, 191 F.3d 339, 342 (2d Cir. 1999) (alteration and internal
quotation marks omitted).

        In so holding, we pause to observe that the government’s interpretation of the proceeding
below is not by any means incredible; that is, it may be the case that the District Court considered
White’s evidence and simply found it wanting. The Court noted, for example, that White’s efforts at
rehabilitation (completing a number of programs while incarcerated) did not compare favorably to
those of the defendant in Pepper (making extraordinary progress while out of custody). See App. 67.
Such reasoning is consonant with the theory that the District Court properly discharged its
obligations.

       Other portions of the record, however, give us cause for doubt. In particular, we are unsure
what to make of the remarks that followed the District Court’s discussion of White’s rehabilitation
when viewed through the lens of the Supreme Court’s teaching in Pepper:

                 I don’t know that post sentencing rehabilitation would really apply. But
        again, in the abundance of caution even if I did consider it I wouldn’t find it was the

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U.S. v. White
       basis for going outside the parameters of the remand and that is to consider whether
       or not the enhancement which is now not in dispute, that it doesn’t apply. I’ll make
       a decision on that.

Id.

         The statement, “I don’t know that post sentencing rehabilitation would really apply” appears
to indicate that the able district judge was not disposed to think that White’s evidence was especially
convincing (which favors the government), but it appears just as strongly to indicate that he did not
in fact consider that evidence in imposing sentence (which favors White). It is, after all, both
tentative (“I don’t know . . . .”) and conditional (“. . . would really apply” (emphasis supplied)) in
nature. It may most naturally be read to say that the District Court probably would not have been
convinced by White’s argument if the District Court were to take it into account—which suggests
that the Court did not do so.

         We are likewise uncertain about the District Court’s next statement: “[E]ven if I did consider
it I wouldn’t find it was the basis for going outside the parameters of the remand.” White interprets
this remark to evince a misunderstanding that this Court’s remand was limited to consideration of a
single issue—the applicability vel non of the § 2B1.1(b)(11)(C)(i) enhancement—unless she made
some threshold showing of an unusual degree of rehabilitation while incarcerated. We think that
reading plausible. The District Court seems to have been saying that White’s evidence of
rehabilitation, even if taken into account, was insufficiently strong to justify opening the field of
inquiry beyond consideration of the enhancement. But—as we have explained—evaluation of
White’s evidence was very much within the scope of the remand; White did not have some initial
burden to show that it deserved to be considered.

        The District Court’s sentencing remarks are, we conclude, ambiguous. In saying, “I don’t
know that post sentencing rehabilitation would really apply,” the judge might have meant to
communicate that White’s evidence of rehabilitation had been considered and rejected; similarly,
“even if I did consider it I wouldn’t find it was the basis for going outside the parameters of the
remand” might have been intended to mean that the evidence, properly weighed, did not justify
departing from the original supervised-release term. The District Court might simply have chosen
its words poorly. But its words are all we have to go by; and, having considered them at length, we
are substantially uncertain whether they reflect an accurate understanding of the law. Accordingly,
we remand the cause for the limited purpose of permitting the District Court to consider whether
White’s post-sentencing rehabilitation warrants a reduction in her term of supervised release.




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15-229-cr
U.S. v. White
                                      CONCLUSION

       For the foregoing reasons, the cause is REMANDED to the District Court for further
proceedings consistent with this order.



                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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