                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 17-1703
                                    _______________

                           UNITED STATES OF AMERICA

                                            v.

                                  MIKHAIL AMINOV,
                                            Appellant
                                        ___

       On Appeal from the District Court for the Eastern District of Pennsylvania
                               (No. 2-10-cr-00538-009)
                   District Judge: The Honorable Edward G. Smith
                                  _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 19, 2018

             Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges

                            (Opinion Filed: March 12, 2018)
                                   _______________

                                       OPINION
                                    _______________


FUENTES, Circuit Judge

       This case arises from the revocation of Appellant Mikhail Aminov’s supervised

release. Aminov was found to be in violation of the terms of his supervised release and



 This disposition is not an Opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
the District Court sentenced him based on the erroneous belief that Aminov had received

a lenient sentence for his prior conviction. As this sentence was based, in part, on

incorrect information, we will vacate the sentence and remand to the District Court for

resentencing.

                                             I.

       On September 6, 2011, Aminov pled guilty to one count of conspiracy and aiding

and abetting the production of an identification document without lawful authority in the

District Court for the Eastern District of Pennsylvania. The Presentence Report

recommended a Sentencing Guidelines range of zero to six months’ imprisonment, which

the District Court (Shapiro, J.) adopted instead of the Government’s suggested range of

12 to 16 months. Aminov was sentenced to six months’ imprisonment, followed by three

years’ of supervised release. On June 29, 2012, Aminov began his supervised release.

       On January 8, 2015, while still on supervised release, Aminov was arrested in the

Southern District of New York and charged with one count of healthcare fraud. Aminov

pled guilty on January 31, 2017. The District Court (Engelmayer, J.) sentenced Aminov

to 15 months’ imprisonment.

       On March 28, 2017, the District Court for the Eastern District of Pennsylvania

(Smith, J.) held a hearing on Aminov’s violation of supervised release. Aminov admitted

to the violation and the District Court found him to be in violation of the terms of his

supervised release. The Sentencing Guidelines range was four to ten months’

imprisonment. Aminov requested a concurrent sentence or, in the alternative, a

consecutive sentence at the low end of the guideline range. The Government sought a

                                              2
consecutive sentence at the high end of the range. In support of its position, the

Government argued that Aminov had already benefited from lenity. In its sentencing

memorandum, the Government stated: “[a]t his original

sentencing in this case, the government advocated for a term of imprisonment in the

range of 10 to 16 months. Judge Shapiro imposed a sentence below the government’s

recommended range.”1 This was repeated at the hearing, with the Government stating

that “although the Government advocated a sentence of 12 to 16 months . . . , Judge

Shapiro gave him a lower sentence, the six months.”2

       After hearing the parties’ arguments, the District Court imposed a ten-month

sentence, a sentence at the top of the guideline range. In explaining the sentence, the

Court stated “I am looking back at what Judge Shapiro saw in you and she imposed a

below guideline range sentence, significantly below guideline range sentence. And in

return for her doing that, you immediately went back out and engaged in further similar

criminal conduct.”3

                                            II.4

       Aminov appeals his sentence, claiming it was based on the erroneous conclusion

that he was granted lenity with his previous sentence. Because he did not object to the




1
  App. 34.
2
  App. 50.
3
  App. 54-55 (emphasis added).
4
  The District Court had jurisdiction under 28 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
                                             3
sentence before the District Court, our review is for plain error.5 The test for plain error

is well established. For Aminov to be entitled to relief, he must show: (1) an error; (2)

that is plain or obvious; (3) that affects the defendant’s substantive rights; and (4) the

error seriously affects the fairness, integrity, or public reputation of judicial proceedings.6

Aminov has made such a showing.

       Aminov has shown that there was a plain error in his sentencing. A District Court

errs when it bases a sentence on incorrect facts.7 An error is said to be “plain” when it is

“‘clear’ or, equivalently, ‘obvious.’”8 Here, the District Court sentenced Aminov, in part,

on the belief that his initial sentence was below the guidelines range. However, as noted

in Section I, supra, the guidelines range for Aminov’s initial conviction was zero to six

months, and 12 to 16 months was the range advocated by the Government. Thus, Judge

Shapiro’s six-month sentence was not a downward departure from the guidelines range, it




5
  Johnson v. United States, 520 U.S. 461, 466-67 (1997) (“[B]efore an appellate court can
correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that
‘affects substantial rights.’”) (citation omitted).
6
  United States v. Mateo-Medina, 845 F.3d 546, 550 (3d Cir. 2017) (citing United States
v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008)); see also United States v. Olano, 507 U.S.
725, 732 (1993)).
7
  Gall v. United States, 552 U.S. 38, 51 (2007) (An appellate court reviewing a sentence
“must first ensure that the district court committed no significant procedural error, such
as . . . selecting a sentence based on clearly erroneous facts . . . .”); United States v. Grier,
475 F.3d 556, 570 (3d Cir. 2007) (en banc) (“A sentence imposed as a result of a clearly
erroneous factual conclusion will generally be deemed ‘unreasonable’ and, subject to the
doctrines of plain and harmless error, will result in remand to the district court for
resentencing.”); Moore v. United States, 571 F.2d 179, 183 (3d Cir. 1978) (“[T]he
Supreme Court made it clear that a sentence cannot be predicated on false information.”).
8
  Olano, 507 U.S. at 734.
                                                4
was at the top of the range. Accordingly, the District Court crafted its sentence in

consideration of incorrect facts, and, in doing so, committed a plain error.9

       Aminov has also shown that the error affected his substantive rights. An error

affects substantive rights when it is “prejudicial,” that is to say it “affected the outcome of

the district court proceedings.”10 Here, the error impacted the outcome of the District

Court proceedings because the District Court explicitly relied on it in supporting its

sentencing decision.11

       Finally, allowing Aminov’s sentence to stand would “affect the fairness, integrity,

or public reputation of judicial proceedings” because allowing a sentence based on

incorrect information to stand would undermine public confidence in the judicial

process.12

                                             III.

       For the reasons set forth above, we vacate the sentence and remand to the District

Court for resentencing consistent with this Opinion.




9
   See Gall, 552 U.S. at 51; Olano, 507 U.S. at 734.
10
    Olano, 507 U.S. at 734.
11
    See Mateo-Madina, 845 F.3d at 554.
12
    See Moore, 571 F.2d at 183 (vacating a sentence based on a pre-sentence report that
contained erroneous factual information because “a defendant should not be sentenced on
the basis of information about him that is materially incorrect . . . .”).
                                              5
