     05-3677-cr
     United States v. Benjamin

 1                           UNITED STATES COURT OF APPEALS
 2
 3                               FOR THE SECOND CIRCUIT
 4
 5                                 August Term, 2006
 6
 7   (Argued: February 8, 2007                 Decided: September 27, 2007)
 8
 9      Docket Nos.      05-3677-cr(L), 05-4006-cr(XAP), 05-4009-cr(CON)
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12
13   UNITED STATES OF AMERICA,
14
15                Appellee-Cross-Appellant,
16
17                      v.
18
19   GREG HIRLIMAN, JIMMY LEON, also known as JIMMY DALE, AMOS KEITH,
20   JEFFREY EVANS, RONALD WILSON, EDWARD INGENITO, also known as
21   BUSTER, JOSEPH SCICCHITANO, CARLOS WIGGINS, JEFF BELLAMY, JOHN
22   BRYANT, SHERRY MARIE BOULA, OMAR T. FERGUSON, JAMIE FRIEL, JAMES
23   V. HAMILTON, also known as BLACK, GARY HANSON, THOMAS JOHNSON,
24   also known as T, KIM KOHL, DAVID SHARP, EARL THOMAS, also known
25   as SLIM, LORRAINE BENJAMIN, SCOTT CRANDALL, SUSAN FISHER, KEVIN
26   MARTINELLI, LAMONT PARKS, TERRI PEARMAN, MICHAEL RHODES,
27   DEMETRIOUS SAYLES,
28
29                Defendants,
30
31   DONALD BENJAMIN, JR., also known as DUCKY, NEAL BENJAMIN,
32
33                Defendants-Appellants-Cross-Appellees.
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37   B e f o r e:       WINTER, WALKER, and SACK, Circuit Judges.
38
39         Neal and Donald Benjamin appeal their sentences for various

40   drug-related offenses, entered in the United States District

41   Court for the Western District of New York (Elfvin, Judge).        The

42   government cross-appeals, arguing that Judge Elfvin failed BOTH


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 1   to give notice of his decision to depart from the Sentencing

 2   Guidelines and to provide any explanation of his decision to

 3   depart, as required by federal statute and by the order of this

 4   court in a previous appeal in this matter.   Because the district

 5   court once again did not explain its reasons for the sentences

 6   imposed, we vacate the sentences and remand with instructions

 7   that the case be assigned to a different judge for resentencing.

 8                                 JAMES P. KENNEDY, Assistant United
 9                                 States Attorney (Terrance P. Flynn,
10                                 United States Attorney for the
11                                 Western District of New York, on
12                                 the brief), Buffalo, New York, for
13                                 Appellee-Cross-Appellant.
14
15                                 JOHN J. LAVIN, John J. Lavin, P.C.,
16                                 Buffalo, New York, for Defendant-
17                                 Appellant-Cross-Appellee Neal
18                                 Benjamin.
19
20                                 VINCENT E. DOYLE III, Connors &
21                                 Vilardo, LLP, Buffalo, New York,
22                                 for Defendant-Appellant-Cross-
23                                 Appellee Donald Benjamin.
24
25   WINTER, Circuit Judge:

26        Neal and Donald Benjamin appeal their sentences imposed by

27   Judge Elfvin for various drug related offenses.1   The government

28   cross-appeals, arguing that the district judge violated 18 U.S.C.

29   § 3553 and a direction of this court in a previous appeal of this

30   matter, United States v. Evans, 352 F.3d 65 (2d Cir. 2003), by

31   failing for a second time to give notice of his decision to

32   deviate from the Sentencing Guidelines (“U.S.S.G.”) and to

33   provide an explanation for his non-Guidelines sentences.

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 1        Because we agree with the government, we vacate the

 2   sentences and remand with instructions that the case be assigned

 3   to a different judge for resentencing.

 4                                 BACKGROUND

 5        The relevant facts are exceedingly simple.         Between 1994 and

 6   1997, the Benjamin brothers ran a drug distribution ring in and

 7   around Olean, New York, along with dozens of co-conspirators.

 8   Id. at 67-68.   “The ring dealt in marijuana, cocaine, and crack

 9   and employed numerous individuals, including several youngsters

10   under age eighteen.”   Id. at 68.

11        The Presentence Investigation Reports (“PSR”) recommended an

12   offense level of 46 for each defendant and a criminal history

13   category of VI, the highest possible level, yielding a range of

14   life imprisonment under the U.S.S.G.       Id. at 70.   Because none of

15   the individual offenses for which the Benjamins were convicted

16   carried a life sentence, the PSRs invoked U.S.S.G. § 5G1.2(d),

17   which provides that sentences shall be served consecutively up to

18   the guidelines sentence.   Thus, the PSRs recommended stacking

19   Donald’s sentences to achieve a 240-year sentence, and Neal’s to

20   produce a 40-year sentence.    Id. at 70-71.

21        At sentencing, on April 12, 2002, the district judge

22   accepted the calculations of the PSRs, but departed downwards

23   from the Guidelines, sentencing Donald to three 10-year terms

24   (for a total of 30 years) and Neal to 20 years.         Id.   The judge


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 1   provided no coherent explanations for these departures.     With

 2   regard to Donald’s sentence, the district judge said only “I must

 3   have downward departed . . . to get those three segments of ten

 4   years.”    Id. At 72.   As to Neal’s sentence, he said “I would have

 5   to assume that I have departed.”       Id.

 6        The Benjamins and the government appealed.    The Benjamins

 7   challenged both their convictions and their sentences, while the

 8   government argued, inter alia, in its cross-appeal that the

 9   district court committed error by not giving notice of a possible

10   departure and by failing to articulate his reasons for departing.

11   We rejected all of the Benjamins’ arguments, in large part by

12   summary order.    United States v. Evans, 82 Fed.Appx. 726 (2d Cir.

13   2003).    By way of a published accompanying opinion, the panel

14   found that the district judge had “made no findings of fact or

15   conclusions of law justifying [his] departures and thus [left] us

16   at a total loss in reviewing defendants’ sentences.”     Evans, 352

17   F.3d at 72.    Accordingly, the panel vacated the sentences and

18   remanded for resentencing “in accordance with 18 U.S.C. §

19   3553(c)(2) and Sentencing Guidelines 5K2.0[,]” and “direct[ed]

20   the district court to provide clear notice to both parties of any

21   contemplated departure.”     Id.

22        The district court again provided no notice of any intention

23   to depart or otherwise deviate from the advisory Guidelines

24   ranges prior to the resentencing hearings.    At Donald’s


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 1   resentencing, the court heard from the defense and the

 2   prosecution, and then announced, “I adhere to that sentence, 360

 3   months imprisonment.”    D. Benjamin Resentencing Tr. at 23.    When

 4   the prosecutor asked how the court had arrived at that sentence,

 5   the judge said “I’ll write you a letter” and brought the hearing

 6   to a close.     Id. at 24.   Judge Elfvin provided no explanation of

 7   his sentence in his written judgment, other than to check boxes

 8   indicating that he “adopt[ed] the presentence report and the

 9   Guideline[s] application[] without change” but “did not apply the

10   federal sentencing guidelines at all in this case and imposed a

11   discretionary sentence.”

12        A month later, Neal was resentenced.     At the outset of the

13   hearing, the defense attorney asked about the letter the district

14   judge had promised to explain Donald’s sentence.     In response,

15   the judge asked his courtroom deputy to “give [him] a note to

16   remind [him] about that.”     N. Benjamin Resentencing Tr. at 3.

17   According to the government, no such explanatory note has been

18   received.

19        The district court again provided no advance notice of any

20   intention to deviate from the Guidelines prior to Neal’s

21   resentencing.    Evidently anticipating the judge’s enigmatic

22   behavior and fearing another overturning of the sentence, Neal’s

23   attorney came to the hearing with a proposed “notice” for the

24   judge to read into the record.     The “notice” was a brief summary


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 1   of several of the factors a sentencing judge is required to

 2   consider under § 3553, and read, in full:

 3              Notice is hereby given to the government and
 4              defendant, Neal Benjamin, that the Court
 5              intends to depart from the advisory
 6              guidelines sentence for the following
 7              reasons: The proposed sentence is sufficient
 8              but not greater than necessary to reflect the
 9              seriousness of the offense, to promote
10              respect for the law, to provide just
11              punishment for the offense, to protect the
12              public from further crimes of the defendant,
13              to afford adequate deterrence to criminal
14              conduct, and to avoid sentencing disparity.
15

16   Judge Elfvin duly read the “notice” into the record.     Id. at 8.

17   The prosecutor objected, suggesting that this did not constitute

18   proper notice.   After hearing from the defense and prosecution,

19   the judge announced that “[t]he sentence I impose, Neal, is that

20   you’re going to be sentenced to a period of incarceration of 240

21   months, period,” N. Benjamin Resentencing Tr. at 15, though he

22   once again adopted the calculations of the PSR -- which provided

23   for a 40-year sentence -- in his written judgment.

24         When, as before, the prosecutor pressed the court to explain

25   this departure, defense counsel volunteered that the reasoning

26   was contained in the notice read into the record.    The district

27   judge agreed with this suggestion, adding that he had “considered

28   Neal’s case along with his brother’s, and everything together,

29   for the long period of time that the case has been in front of

30   me.   I think everything is adequately on the record.”   N.


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 1   Benjamin Resentencing Tr. at 17.       In his written judgment, the

 2   judge stated that “[t]he Court imposed a non-guideline sentence

 3   pursuant to the factors set forth in 18 U.S.C. § 3553 as read

 4   into the record at sentencing.”        Once again, both sides appealed.

 5                              DISCUSSION

 6        Because of our disposition of the cross-appeal, the

 7   sentences must be vacated and the case remanded to another judge

 8   for yet another resentencing.    We therefore do not address the

 9   Benjamins’ claims at this time.

10        Title 18 U.S.C. § 3553(c) requires a sentencing court to

11   state the reasons for imposing a particular sentence.       It reads,

12   in relevant part, that “[t]he court, at the time of sentencing,

13   shall state in open court the reasons for its imposition of the

14   particular sentence . . . .”    18 U.S.C. § 3553(c).     If the

15   sentence is outside the range described in the Sentencing

16   Guidelines, the court must also provide “the specific reason for

17   the imposition of a sentence different from that described [in

18   the Guidelines], which reasons must also be stated with

19   specificity in the written order of judgment . . . .”        Id. §

20   3553(c)(2).

21        While United States v. Booker, 543 U.S. 220 (2005), rendered

22   the Sentencing Guidelines advisory rather than mandatory, it did

23   not alter a sentencing judge’s obligations under Section 3553(c).

24   “[T]he Supreme Court left unimpaired Section 3553(c), which


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 1   requires a district court to ‘state in open court the reasons for

 2   its imposition of the particular sentence’ and . . . state in

 3   writing ‘with specificity’ the reasons for imposing a sentence

 4   outside the calculated Guidelines range.”       United States v.

 5   Crosby, 397 F.3d 103, 116 (2d Cir. 2005) (quoting 18 U.S.C. §

 6   3553(c)).   A court’s “failure to comply ‘with the general

 7   provisions of § 3553(c) . . . regarding [the explanation of

 8   reasons for] departures from recommended sentencing ranges’

 9   constitutes ‘plain error,’ even when the length of the resulting

10   sentence would otherwise be reasonable.”       United States v.

11   Fuller, 426 F.3d 556, 565 (2d Cir. 2005) (quoting United States

12   v. Lewis, 424 F.3d 239, 246 (2d Cir. 2005)).2

13        The plain fact is that, with regard to Donald, the district

14   judge, although accepting the PSR calculations, once again failed

15   to give notice of a possible deviation and provided no

16   explanation whatsoever for his decision to impose a non-

17   Guidelines sentence.   When the prosecutor asked for an

18   explanation, he simply replied “I’ll write you a letter.”         D.

19   Benjamin Resentencing Tr. at 24.       Even if the judge had written

20   the promised letter -- which he did not -- it would not have

21   satisfied his obligation to “state in open court the reasons” for

22   imposing the particular sentence.      18 U.S.C. § 3553(c).   Nor did

23   the district judge explain his decision in the written judgment,

24   which simply stated that he “adopt[ed] the presentence report and


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 1   the Guideline[s] application[] without change” but “did not apply

 2   the federal sentencing guidelines at all in this case and imposed

 3   a discretionary sentence.”    “Stating no reasons at all plainly

 4   falls short of the requirement to state reasons that is set forth

 5   in § 3553(c), no matter what the required level of specificity

 6   may be.”    Lewis, 424 F.3d at 245 (internal quotation marks

 7   omitted).   As a result, Donald’s sentence must be vacated.

 8        Neal’s sentencing was as perfunctory as Donald’s.    It was

 9   not preceded by a notice of a possible deviation or accompanied

10   by a statement of reasons, save for the reading -- without

11   evident embarrassment -- of the defense-prepared “notice,” which

12   was provided at the hearing and was simply a statement of several

13   of the factors in Section 3553(a).    Although once again accepting

14   the PSR calculations, the judge then imposed a sentence 20 years

15   below the Guidelines recommendation.   Quite apart from the fact

16   that the “notice,” written by defense counsel before the

17   resentence was known, was hardly the product of the judge’s own

18   thinking, it made no attempt to explain how the individual

19   Section 3553(a) factors applied to Neal’s particular case and led

20   to the sentence imposed.   As before, the district judge “made no

21   findings of fact or conclusions of law justifying [his]

22   departures and thus leaves us at a total loss in reviewing

23   defendants’ sentences.”    Evans, 352 F.3d at 72.

24        The district judge’s behavior compels us to order that the


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 1   case be assigned to a different judge on remand.   In general,

 2   “reassignment to another judge may be advisable in order to avoid

 3   an exercise in futility (in which) the Court is merely marching

 4   up the hill only to march right down again.”    United States v.

 5   Robin, 553 F.2d 8, 11 (2d Cir. 1977) (en banc) (internal

 6   quotation marks omitted).

 7        Reassignments because of the failure of the district judge

 8   to impose a proper sentence are uncommon, but it is not

 9   unprecedented for a case to be remanded to a different judge

10   after a district court has twice used an improper sentencing

11   procedure.    See United States v. Brown, 470 F.2d 285, 288-89 (2d

12   Cir. 1972).   We note, moreover, that reassignments are not

13   uncommon in the case of Judge Elfvin.    This is the third case of

14   reassignment in less than two years based on his failure to give

15   notice of, and an explanation for, a departure in the original

16   sentencing proceeding and on a remand.    See United States v.

17   Toohey, 448 F.3d 542 (2d Cir. 2006), and United States v.

18   Sicurella, 2006 U.S.App. LEXIS 13546 (2d Cir. May 23, 2006)

19   (unpublished order).   In Toohey, we had remanded twice because

20   Judge Elfvin had not explained a sentence of probation.       448 F.3d

21   at 543.   At the third sentencing hearing, he explained that he

22   had imposed probation because of his personal relationship with

23   the defendant when both were practicing law.    Id. at 544.    On the

24   next appeal, we then remanded to a different judge.    Id. at 546.


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 1   In Sicurella, Judge Elfvin refused to explain his reasons for

 2   imposing the sentence, stating on the second remand:      “Upon

 3   reflection here and with further reflection to come in the

 4   future, I’m going to continue the sentence of 70 months.      I will

 5   give it further reflection and if I change my mind, I’ll let

 6   everyone know.”    2006 U.S.App. LEXIS 13546 at *3 n.2.    With

 7   little comment, the Sicurella panel determined that this

 8   “explanation” failed to satisfy the requirements of § 3553(a) and

 9   (c), and remanded, ordering reassignment to another judge.

10        This is, therefore, the third case in two years in which

11   Judge Elfvin failed in the initial sentencing proceeding to

12   comply with the requirements of notice and explanation for the

13   imposition of a non-Guideslines sentence and then, on remand,

14   failed to follow a direction of this court to comply with those

15   requirements.    This pattern of behavior is disturbing evidence of

16   willfulness.    The need to remove Judge Elfvin from this case

17   being self-evident, we order reassignment to a different judge.

18                                CONCLUSION

19        For the foregoing reasons, the sentencing orders of the

20   district court are vacated and the case is remanded with

21   instructions that it be assigned to a new judge for resentencing.

22

23

24


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1                                FOOTNOTES

2

    1. Donald Benjamin was convicted of (1) one count of conspiracy

    to possess with intent to distribute and conspiracy to distribute

    controlled substances in violation of 21 U.S.C. § 846 as it

    relates to 21 U.S.C. § 841(a)(1); (2) five substantive

    distribution counts, in violation of 21 U.S.C. § 841(a)(1); and

    (3) one count of using a minor to distribute controlled

    substances in violation of 21 U.S.C. § 861(a)(1) and (2).    Neal

    Benjamin was convicted of one count of the same conspiracy

    offense and one count of possession with intent to distribute and

    distribution of cocaine base, in violation of 21 U.S.C. §

    841(a)(1).   Evans, 352 F.3d at 68.



    2.   Nor did Booker alter the requirement that a district court

    provide parties with notice of possible departures and variances

    from the advisory Guidelines ranges.     See Fed. R. Crim. P. 32(h).

    Although we did not decide until after Donald and Neal Benjamin

    were resentenced that the notice requirement applied equally to

    non-Guidelines sentences as to departures, United States v.

    Anati, 457 F.3d 233, 236-37 (2d Cir. 2006), the district court

    could have been under no misapprehensions regarding its

    obligation to inform the parties of any intent to impose a

    sentence outside the applicable Guidelines ranges in light of our

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admonitions in Evans, see Evans, 352 F.3d at 72.




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