12-2046-cr
United States v. Allen



                              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 26th
day of March, two thousand and thirteen.

PRESENT:

                     RALPH K. WINTER,
                     JOSÉ A. CABRANES,
                     CHESTER J. STRAUB,

                                  Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                                          Appellee,

                     v.                                                   No. 12-2046-cr

THOMAS MICHAEL ALLEN,

                     Defendant-Appellant.
_____________________________________

FOR DEFENDANT-APPELLANT:                                  Molly Corbett, Paul Evangelista, for Lisa A.
                                                          Peebles, Federal Public Defender, Albany,
                                                          NY.

FOR APPELLEE:                                             Paul D. Silver, Richard D. Bellis, for Richard S.
                                                          Hartunian, United States District Attorney for

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                                                        the Northern District of New York, Albany,
                                                        NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Mae A. D’Agostino, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that case is REMANDED, with instructions, for further
proceedings consistent with this order.

         Defendant-appellant Thomas Michael Allen, who was previously convicted of third-degree
rape in New York in 2010, pleaded guilty in 2012 to violating certain travel and registration
conditions, applicable to him because of that prior sex offense, in violation of the Sex Offender
Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a). In particular, following his 2010
conviction, Allen moved to Maryland without notifying New York authorities, and he then failed to
register as a sex offender with Maryland authorities. Consistent with the recommendation filed by
the probation office in the Presentencing Report (“PSR”), the District Court calculated an offense
level of 12, criminal history category of IV, and resulting Guidelines range of 21 to 27 months in
prison, followed by a term of supervised release between 5 years and life. The Court sentenced
Allen to a prison term of 27 months, followed by supervised release for the duration of his life.

        On appeal, Allen raises two arguments. First, Allen argues that the District Court erred by
concluding that his failure to comply with sex-offender-registration conditions is a “sex offense”
within the meaning of § 5D1.2 of the Guidelines, and the accompanying commentary note 1, which
defines that term. The government concedes error on this issue, arguing that “[w]hat constitutes a
sex offense is set forth in application note 1 to § 5D1.2(b), and does not include a SORNA
violation.” Appellee’s Br. at 13. Second, Allen asserts that the District Court erred in its calculation
of the Guidelines by adding a criminal-history point for his prior conviction in New York on two
counts of disorderly conduct. We assume the parties’ familiarity with the facts and procedural
history of this case.

                                            DISCUSSION

         We review a district court’s sentencing decision for an “abuse of discretion.” Gall v. United
States, 552 U.S. 38, 41 (2007). “A district court has abused its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a
decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117,
132 (2d Cir. 2008) (internal citations, quotation marks, and alteration omitted). Accordingly, a
district court abuses its discretion if it commits a “significant procedural error, such as failing to


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calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51. We review de novo a district
court’s interpretation and legal application of the Guidelines. See United States v. Cossey, 632 F.3d 82,
86 (2d Cir. 2011). Errors that do not affect substantial rights are considered harmless. See FED. R.
CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.”).

                                                      A.

        Allen argues that the District Court erred by considering his offense to be a “sex offense”
within the meaning of § 5D1.2(b)(2) of the Guidelines, which provides that “the length of the term
of supervised release shall be not less than the minimum term of years specified for the offense
under subdivisions (a)(1) through (3) and may be up to life, if the offense is . . . a sex offense.”
U.S.S.G. § 5D1.2(b)(2). As relevant here, the first application note to this section of the Guidelines
defines a sex offense as follows:

        “Sex offense” means (A) an offense, perpetrated against a minor, under (i) chapter
        109A of title 18, United States Code; (ii) chapter 109B of such title; (iii) chapter 110
        of such title, not including a recordkeeping offense; (iv) chapter 117 of such title, not
        including transmitting information about a minor or filing a factual statement about
        an alien individual; (v) an offense under 18 U.S.C. § 1201; or (vi) an offense under 18
        U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in
        subdivisions (A)(i) through (vi) of this note.

U.S.S.G. § 5D1.2(b)(2), cmt. n. 1. The parties agree that Allen’s violation of his conditions of release
under 18 U.S.C. § 2250(a) is not a “sex offense” under this definition.

         Because Allen failed to timely object to the application of this Guidelines provision, our
review is for “plain error.” See United States v. Reyes, 691 F.3d 453, 457 (2d Cir. 2012). “Plain error
exists where (1) the district court committed error; (2) the error is plain; (3) the error affects the
defendant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks omitted). We are not bound by
the parties’ conclusions, even if in agreement, regarding the proper interpretation of the Guidelines.
See generally Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). Moreover, “commentary in the
Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993); see also, e.g., United States v. Walker, 595 F.3d
441, 445 (2d Cir. 2010) (same).



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          We previously decided in a nonprecedential order that a violation of conditions of release
under 18 U.S.C. § 2250(a) does not count as a “sex offense” under § 5D1.2(b)(2) of the Guidelines,
and that a district court’s contrary calculation of the Guidelines constituted “plain error.” See United
States v. Herbert, 428 Fed. App’x 37, 39 (2d Cir. 2011) (summary order). Though not bound by this
prior decision, see United States v. Wagner-Dano, 679 F.3d 83, 91 n.7 (2d Cir. 2012), we agree with its
conclusion. The application note to § 5D1.2(b)(2) defines a “sex offense” as encompassing only
offenses “perpetrated against a minor.” U.S.S.G. § 5D1.2(b)(2), application note 1. Sex-registration
requirements facilitate the safety of minors, but a violation of those requirements plainly does not
count as an offense “perpetrated against a minor” within the meaning of § 5D1.2(b)(2).
Accordingly, we remand the case to the District Court with instructions to recalculate the relevant
Guidelines range and, if appropriate, impose a new sentence with respect to supervised release.

                                                           B.

         Allen also disputes the criminal-history point applied by the District Court based on his prior
sentence of “time served” after spending 34 days in jail. In particular, Allen argues that this sentence
should be excluded under § 4A1.2(c)(1) of the Guidelines because it was a petty offense where the
maximum sentence imposed was not at least 30 days. Disorderly conduct charges carry a maximum
jail sentence of 15 days under New York law. See N.Y. Penal Law §§ 70.15(4), 240.20.1 The
Government argues that because Allen spent at least 30 days in jail, his sentence for “time served”
qualifies as a 30-day sentence.

         A sentencing range under the Guidelines, now advisory under the teaching of United States v.
Booker, 543 U.S. 220 (2005), depends in part on a sentencing court’s calculation of a defendant’s
“criminal history category.” U.S.S.G. § 4A1.1. As relevant here, the Guidelines instruct the
sentencing court to “[a]dd 1 point for each prior sentence” of less than 60 days “up to a total of 4
points for this subsection,” id. § 4A1.1(c), but prior sentences for certain misdemeanors and petty
offenses “are counted only if (A) the sentence was a term of probation of more than one year or a term
of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense,” id.
§ 4A1.2(c)(1) (emphases added). The Guidelines further explain that “[t]he term ‘sentence of
imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed,” id.
§ 4A1.2(b)(1), and that “[i]f part of a sentence of imprisonment was suspended, ‘sentence of
imprisonment’ refers only to the portion that was not suspended,” id. § 4A1.2(b)(2).




     1 New York Penal Law § 70.15(4) provides: “Violation. A sentence of imprisonment for a violation shall be a

definite sentence. When such a sentence is imposed the term shall be fixed by the court, and shall not exceed fifteen
days.” New York Penal Law § 240.20 provides, in relevant part: “Disorderly conduct is a violation.”

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        The Guidelines also specify how to count sentences that were “imposed on the same day”
based on multiple charges. Id. § 4A1.2(a)(2). In this event, the Guidelines instruct the district court
to “use the longest sentence of imprisonment if concurrent sentences were imposed,” or, “[i]f
consecutive sentences were imposed, use the aggregate sentence of imprisonment.” Id.

        In this case, the PSR explains that Allen was sentenced on May 6, 2009, to “time served (34
days)” on two counts of “Disorderly Conduct (Violation),” stemming from an incident where
Allen—in the presence of his dad, fifteen-year-old brother, and police officers—“became violent
and began damaging property within reach . . . and menaced his father with a broken wooden chair
leg.” PSR ¶ 29. Id. The PSR further explains that “[w]hen advised he would be arrested, [Allen]
fled the scene on foot and had to be pursued by police and tackled to the ground . . . [and]
continued to resist arrest.” Id.

        Generally, a sentence of “time served” is treated “as an unambiguous pronouncement of a
specific term of imprisonment—the amount of time actually served.” United States v. D’Oliverira, 402
F.3d 130, 132 (2d Cir. 2005). New York cases, however, make clear that a sentence of “time served”
does not exceed the statutory maximum, even if a defendant has spent more than the relevant
number of days in pretrial detention. See, e.g., People v. Cortese, 79 A.D.3d 1281, 1284 (3d Dep’t 2010).

        Allen’s two counts of disorderly conduct in 2009 warranted maximum jail terms of 15-days
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each. See note 1, ante. Because these 15-day terms are, by themselves, less than 30 days each, the
District Court would then have had to decide whether the New York court had imposed those
sentences concurrently or consecutively, see U.S.S.G. § 4A1.2(a)(2)—an issue that the New York
court had no reason to consider in light of Allen having spent 34 days in jail. In other words,
§ 4A1.2(a)(2) of the Guidelines assumes the existence of a (here, nonexistent) state-court
determination regarding whether the two sentences were concurrent or consecutive. We presume
Guidelines ambiguities of this sort in favor of a defendant, see United States v. Simpson, 319 F.3d 81,
86–87 (2d Cir. 2002), and therefore we must remand to the District Court to recalculate Allen’s
Guidelines range and reconsider his sentence without adding a criminal-history point for his prior
convictions on May 6, 2009.




     2 The PSR also notes that “[p]olice records indicate the defendant also pled guilty to Endangering the Welfare of a

Child (Misdemeanor) and Criminal Possession of a Weapon 4th (Misdemeanor)” and was sentenced to time served on
the former count and an adjournment in contemplation of dismissal on the latter count. Id. On appeal, the government
does not mention, much less defend the judgment, on the basis of this information.

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                                          CONCLUSION

        For these reasons, the case is REMANDED with the following instructions: The District
Court should, consistent with this order, recalculate the relevant Guidelines ranges with respect to
Allen’s terms of imprisonment and supervised release, and, if appropriate, impose new terms of
imprisonment and supervised release.



                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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