                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 13-3177
                                  ________________

                           UNITED STATES OF AMERICA

                                           v.

                                NIYAZ SAINUDEEN,
                                                  Appellant
                                 ________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. No. 5-12-cr-00194-001)
                    Honorable James Knoll Gardner, District Judge
                                 ________________

                      Submitted under Third Circuit LAR 34.1(a)
                                   June 10, 2014

           BEFORE: AMBRO, GREENBERG, and BARRY, Circuit Judges

                                 (Filed: June 19, 2014)
                                   ______________

                                      OPINION
                                   ______________


GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal by Niyaz Sainudeen from a

judgment of conviction and sentence entered on his guilty plea on June 25, 2013.

Sainudeen pleaded guilty to all four counts of an indictment charging him with
distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) (two counts);

receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (one count); and

possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (one count).

The District Court sentenced him to a single 151-month custodial term on all four counts

without division among the counts. The Court also imposed a single term of supervised

release of five years, required restitution of $10,000, and imposed a single special

assessment of $400, all without division among the four counts.

       Sainudeen appeals, challenging only his sentence. He contends that (1) the

sentence was procedurally and substantively unreasonable, (2) the District Court violated

his double jeopardy rights when it did not merge the separate counts at sentencing, and

(3) the Court erred in not specifying a separate sentence on each count and, instead,

imposed a general custodial sentence on all four counts that exceeded the statutory

maximum custodial sentence allowed on one of the counts. The District Court had

jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291. Inasmuch as we will vacate the judgment and remand the case for

resentencing solely because we accept Sainudeen’s third contention which he did not

advance in the District Court, we are exercising a plain error standard of review. See

United States v. Olano, 507 U.S. 725, 734-35, 115 S.Ct. 1770, 1777-78 (1993). Thus, for

Sainudeen to obtain relief on this appeal he must demonstrate that the District Court

made an obvious error when it imposed the general sentence that abridged his substantial

rights to a separate sentence on each count.



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         It is clear that the District Court committed a plain error when it imposed the

general custodial sentence. The parties agree that under 18 U.S.C. § 2252(b)(1) the

maximum allowable custodial sentence on each of the three counts under 18 U.S.C. §

2252(a)(2) was 20 years, and under 18 U.S.C. § 2252(b)(2) the maximum allowable

custodial sentence on the count under 18 U.S.C. § 2252(a)(4)(B) was ten years. Thus, if

we treated the custodial sentence as having been imposed on each count the sentence

would be illegal as the sentence on the fourth count of 151 months exceeded the statutory

maximum custodial sentence of ten years on the count. Moreover, as we made clear in

United States v. Ward, 626 F.3d 179, 184 (3d Cir. 2010), citing U.S.S.G. § 5G1.2(b), a

court should impose a separate sentence on each count on which it is sentencing a

defendant, and the sentence here was defective because the Court did not do so.1

         We are aware that in imposing the sentence the District Court, after concluding

that it could have imposed a 70-year sentence, said that it “chose to impose a concurrent

sentence and a much lower sentence than 20 years, 20 years, 20 years, plus 10 years

respectively.” App. at 211.2 Thus, it is clear that the Court considered imposing

concurrent sentences. Nevertheless, in its oral sentence the Court indicated that

Sainudeen was “committed to the custody of the Bureau of Prisons to be imprisoned for a

term of 151 months.” App. at 199. Accordingly, there is no escape from the fact that the

Court imposed a single general sentence rather than four concurrent sentences. The


1
    Usually the court can direct that sentences run concurrently.

2
 Though the transcript indicates that the District Court used the word “respectively,”
which in context was appropriate, the Court may have said “consecutively.”
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judgment continued this error as, after listing the four offenses of which Sainudeen was

guilty, it recited that “[t]he defendant is hereby committed to the custody of the United

States Bureau of Prisons to be imprisoned for a total term of 151 MONTHS.” App. at 4.

Therefore, even though the Court may have believed that, in effect, it was imposing

concurrent sentences, the Court could not have done so as it did not impose sentences

separately on each count.

       Finally, in addressing the merits of Sainudeen’s third contention we note that the

prosecutor acknowledges that “[u]nder Ward . . . Sainudeen has demonstrated that the

district court erred and the error was obvious under the law at the time of review.”

Appellee’s br. at 46. But the prosecutor’s proposed remedy that “this Court should affirm

the judgment, and order that the sentence on Count Four be lowered to 120 months,” id.

at 48, would not correct the Ward problem. To the contrary, inasmuch as the Court did

not impose a separate sentence on Count Four the prosecutor is suggesting that we should

direct the District Court to enter a two-part hybrid sentence, i.e., a general sentence on the

first three counts and a separate sentence on Count Four. But we hardly can adopt that

suggestion as we will not direct the District Court to enter even in part a general sentence

that is not permissible under our holding in Ward. Therefore, the District Court must

resentence Sainudeen on all four counts.

       We make two final points. First, we are not suggesting that we would disapprove

a sentence that included a 151-month custodial term as we do not consider the substantive

merits of the appeal from the sentence. Rather, we reiterate that we vacate the sentence

only because the Court did not structure the sentence correctly and thus abridged

                                              4
Sainudeen’s right to be sentenced separately on each count. Second, our disposition of

this appeal is without prejudice to either party on the resentencing advancing any

contention that it deems appropriate, including the first two contentions that Sainudeen

made on this appeal.

       For the foregoing reasons we will vacate the judgment entered June 25, 2013, and

remand the case to the District Court for resentencing de novo.




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