     13-3025
     United States v. Nelson

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 4th day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                REENA RAGGI,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-3025
16
17       DION NELSON, also known as “Booquan,”
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Susan G. Kellman, Brooklyn, New
22                                             York.
23
24       FOR APPELLEE:                         Shreve Ariail, Amy Busa,
25                                             Assistant United States
26                                             Attorneys, for Loretta E. Lynch,
27                                             United States Attorney for the


                                                  1
 1                              Eastern District of New York,
 2                              Brooklyn, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Garaufis, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Defendant-appellant Dion Nelson appeals from a judgment
12   of the United States District Court for the Eastern District
13   of New York (Garaufis, J.), sentencing him to 25 years of
14   imprisonment for unlawful use and discharge of a firearm in
15   furtherance of a drug-trafficking crime, in violation of 18
16   U.S.C. § 924(c)(1)(A)(iii). We assume the parties’
17   familiarity with the underlying facts, the procedural
18   history, and the issues presented for review.
19
20        Nelson argues that: (1) statutory language authorizing
21   a sentence “not less than ten years” requires a sentence of
22   exactly ten years; (2) the sentence was procedurally
23   unreasonable because the district court failed to explain in
24   open court the reasons for imposing an above-guidelines
25   sentence, and because of inaccuracies on the statement of
26   reasons form; and (3) the 25-year sentence was so long as to
27   be substantively unreasonable. We affirm the sentence, but
28   we remand for the limited purpose of allowing the district
29   court to issue a corrected statement of reasons.
30
31        1. Nelson argues that the 25-year sentence conflicts
32   with the statute, which authorizes “a term of imprisonment
33   of not less than 10 years.” However, 25 years is “not less
34   than 10 years”; so the sentence is permissible. See, e.g.,
35   United States v. Farmer, 583 F.3d 131, 151 (2d Cir. 2009).
36   Nelson relies on (ambiguous) legislative history, inferences
37   from Supreme Court oral argument transcripts, and the rule
38   of lenity. However, “[w]e are bound by the decisions of
39   prior panels” of this Court. Gelman v. Ashcroft, 372 F.3d
40   495, 499 (2d Cir. 2004). This claim fails.
41
42        2. Nelson argues that the sentence was procedurally
43   unreasonable because of two separate violations of 18 U.S.C.
44   § 3553(c): (1) the district court did not explain why it
45   imposed a sentence that substantially exceeded the
46   guidelines recommendation of 10 years; and (2) the district


                                  2
 1   court’s statement of reasons contains inaccurate information
 2   and insufficient justification for the sentence.
 3
 4        a. Nelson claims that the district court violated 18
 5   U.S.C. § 3553(c) by failing to justify in open court its
 6   decision to impose an above-guidelines sentence. But Nelson
 7   made no relevant objection in the district court; so this
 8   claim is reviewed for plain error. See United States v.
 9   Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007) (“We now hold
10   that plain error analysis in full rigor applies to
11   unpreserved claims that a district court failed to comply
12   with § 3553(c).”).
13
14        The plain error standard is a familiar one: “an
15   appellate court may, in its discretion, correct an error not
16   raised” before the district court
17
18            only where the appellant demonstrates that (1)
19            there is an error; (2) the error is clear or
20            obvious, rather than subject to reasonable
21            dispute; (3) the error affected the appellant’s
22            substantial rights, which in the ordinary case
23            means it affected the outcome of the district
24            court proceedings; and (4) the error seriously
25            affects the fairness, integrity or public
26            reputation of judicial proceedings.
27
28   United States v. Marcus, 560 U.S. 258, 262 (2010) (internal
29   quotation marks omitted).
30
31        Nelson is correct that the district court erred, and
32   that its error was plain. To be sure, the district court
33   provided ample justification for imposing a sentence with a
34   lengthy term of incarceration. But the court did not
35   acknowledge that it was imposing an above-guidelines
36   sentence, so it therefore could not have satisfied its
37   obligation to explain its reasons for doing so.
38
39        But Nelson’s claim fails nonetheless, because the
40   district court’s error, though plain, did not “seriously
41   affect[] the fairness, integrity or public reputation of
42   judicial proceedings.” Marcus, 560 U.S. at 262. The
43   district court was clearly aware that it was departing from
44   the guidelines recommendation--even if the court never
45   adequately explained why. Early in the proceeding, the
46   district court observed that, because Nelson’s extensive
47   criminal history was not captured by the guidelines

                                  3
 1   recommendation, there was “no issue here regarding whether
 2   there should be notice about a possible sentence above the
 3   guidelines.”
 4
 5        b. As Nelson points out, the statement of reasons form
 6   inaccurately states that the sentence imposed was within the
 7   guidelines range; and the document contains no explanation
 8   for why an above-guidelines sentence was appropriate in this
 9   case. Like Nelson’s other procedural challenges, these are
10   clear violations of 18 U.S.C. § 3553(c)(2) (requiring that
11   the explanation for an above-guidelines sentence appear in
12   the written statement of reasons). This claim, too, is
13   raised for the first time on appeal.
14
15        Recognizing that such a claim will almost never survive
16   plain error review (this one is no exception), our cases
17   suggest that the proper remedy is a limited remand to allow
18   the district court to issue a corrected statement of
19   reasons. See United States v. Verkhoglyad, 516 F.3d 122,
20   133 (2d Cir. 2008). (The government does not oppose such a
21   remand here.) So although we affirm the sentence in all
22   respects, we will remand this case to the district court so
23   that a corrected statement of reasons may be issued.
24
25        3. Nelson argues that his 25-year sentence is so long
26   as to be substantively unreasonable. The precise sentence
27   chosen by the district court, if within lawful bounds, is
28   reviewed only for an abuse of discretion. Gall v. United
29   States, 552 U.S. 38, 51 (2007). That highly deferential
30   standard “provide[s] a backstop for those few cases that,
31   although procedurally correct, would nonetheless damage the
32   administration of justice because the sentence imposed was
33   shockingly high, shockingly low, or otherwise unsupportable
34   as a matter of law.” United States v. Rigas, 583 F.3d 108,
35   123 (2d Cir. 2009). Given Nelson’s extensive criminal
36   history, well-documented in the pre-sentence report and in
37   open court at the sentencing hearing, the district court did
38   not abuse its discretion in imposing a 25-year sentence.
39
40                               ***
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                                  4
 1        For the foregoing reasons, and finding no merit in
 2   Nelson’s other arguments, we hereby AFFIRM the judgment of
 3   the district court, and REMAND for the limited purpose of
 4   allowing the district court to issue a corrected statement
 5   of reasons.
 6
 7                              FOR THE COURT:
 8                              CATHERINE O’HAGAN WOLFE, CLERK
 9
10
11
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