     12-1644-cr(L), 12-1654-cr(CON)
     United States v. Moore

                          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 17th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13
14                    Appellee,
15
16                    -v.-                Nos. 12-1644-cr(L), 12-1654-cr(CON)
17
18       NAQUAN HORNE, also known as Vincent
19       Horne, CHRISTOPHE LEE, also known as
20       Christopher Lee, WAYNE SCOTT,
21
22                    Defendants,
23
24                    and
25
26       KENNETH MOORE
27
28                Defendant-Appellant.
29       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1   FOR DEFENDANT-APPELLANT:      STEVEN Y. YUROWITZ, New York,
 2                                 NY.
 3
 4   FOR APPELLEE:                 ANDREA L. SURRATT (Brent S.
 5                                 Wible, on the brief) for Preet
 6                                 Bharara, United States Attorney
 7                                 for the Southern District of New
 8                                 York.
 9
10       Appeal from a judgment of the United States District

11   Court for the Southern District of New York (Forrest, J.).

12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

13   AND DECREED that the judgment of the district court be

14   AFFIRMED.    We REMAND only to allow the district court to

15   amend the Statement of Reasons (“SOR”) in order to

16   memorialize therein its orally stated reasons for imposing

17   the sentence, as required by 18 U.S.C. § 3553(c)(2).

18       Kenneth Moore appeals from the district court’s

19   sentence of 120 months’ imprisonment for Hobbs Act robbery,

20   conspiracy to commit Hobbs Act robbery, and two counts of

21   possession of a firearm as a felon.     We assume the parties’

22   familiarity with the underlying facts, the procedural

23   history, and the issues on appeal.

24       1.      Fed. R. Crim. P. 32(h).   Federal Rule of Criminal

25   Procedure 32(h) provides:

26       Before the court may depart from the applicable
27       sentencing range on a ground not identified for
28       departure either in the presentence report or in a
29       party’s prehearing submission, the court must give the
30       parties reasonable notice that it is contemplating such

                                     2
1        a departure. The notice must specify any ground on
2        which the court is contemplating a departure.

3        Rule 32(h)’s notice requirement applies only to

4    “departures,” not to “variances.”      See Irizarry v. United

5    States, 553 U.S. 708, 714-16 (2008).      “While the terms . . .

6    are often used interchangeably to describe deviations from

7    the recommended Guideline range, . . . a ‘departure’ refers

8    to a decision by the District Court to impose a sentence

9    outside the otherwise applicable Sentencing Guidelines range

10   pursuant to a provision of the Guidelines.       A ‘variance,’ on

11   the other hand, describes the District Court’s power

12   pursuant to 18 U.S.C. § 3553(a) to impose a sentence outside

13   of the otherwise applicable Guidelines range, which we call

14   a ‘non-Guidelines sentence.’”       United States v. Keller, 539

15   F.3d 97, 99 n.2 (2d Cir. 2008) (emphasis added) (citations

16   omitted).

17       Because Moore did not object at sentencing, we consider

18   whether there was “(1) [an] ‘error,’ (2) that is ‘plain,’

19   and (3) that ‘affect[s] substantial rights.’”      Johnson v.

20   United States, 520 U.S. 461, 466-67 (1997) (quoting United

21   States v. Olano, 507 U.S. 725, 732 (1993)).      “If all three

22   conditions are met, [we] may then exercise [our] discretion

23   to notice a forfeited error, but only if (4) the error

24   ‘seriously affect[s] the fairness, integrity, or public


                                     3
1    reputation of judicial proceedings.’”   Id. (quoting Olano,

2    507 U.S. at 732 (other internal quotation marks omitted)).

3    Moore’s claims do not withstand plain error review.

4        The district court alluded to “departure” twice during

5    the sentencing hearing, and never used the word “variance.”

6    Viewed in context, however, it is clear enough that the

7    court was imposing a non-Guidelines sentence.    See Keller,

8    539 F.3d at 100 (“While the record shows that the District

9    Court used both ‘departure’ and ‘non-[G]uideline[s]

10   sentence’ to describe the sentence it imposed, it is also

11   clear from the record that the District Court relied on its

12   power under § 3553(a)--and not on any Guidelines provision--

13   as a basis for the seven-level ‘departure.’”).

14       The context is as follows: At sentencing, the Judge

15   never mentioned a specific Guidelines provision that would

16   support a departure; she explained more than once that the

17   Guidelines were advisory, that she had discretion to

18   sentence Moore up to the statutory maximum, and that the

19   advisory range was too low; she emphasized the importance of

20   the § 3553 factors, including Moore’s offense conduct and

21   criminal history, and the need for deterrence and

22   rehabilitation; she observed that Moore’s statement of

23   remorse induced her to reduce her sentence, and was

24   “actually down by over a year from where I started out this

                                  4
1    morning.”    These circumstances all confirm that she was

2    imposing a non-Guidelines sentence rather than implementing

3    unspecified departures.

4        The court did check off three specific departures in

5    its SOR.    But the court also checked off boxes in a section

6    dedicated to a non-Guidelines sentence.   The overall intent

7    of the SOR is therefore ambiguous.   However, “[i]t is well

8    settled, as a general proposition, that in the event of

9    variation between an oral pronouncement of sentence and a

10   subsequent written judgment, the oral pronouncement

11   controls.”    United States v. Rosario, 386 F.3d 166, 168 (2d

12   Cir. 2004).   Because the sentencing hearing, in context,

13   reflects an intention to impose a non-Guidelines sentence,

14   that intention obviates the SOR’s inconsistencies.

15       The district court’s “clarification” hearing, held two

16   days after Moore filed notice of appeal, removed any doubt.

17   Judge Forrest explained that her references to “departure”

18   were mistaken and that she intended a non-Guidelines

19   sentence.    “While an effective notice of appeal does divest

20   the district court of its control over those aspects of the

21   case involved in the appeal, a district court still may act

22   in aid of the appeal.”    United States v. Nichols, 56 F.3d

23   403, 411 (2d Cir. 1995) (internal quotation marks omitted).

24   Nichols allowed a “district court [to] simply clarif[y] . .

                                    5
1    . its finding . . . , thereby aiding this court in avoiding

2    unnecessary construction of a statute and a possible remand,

3    the outcome of which would have been a foregone conclusion.”

4    Id. (emphasis added).   As in Nichols, the court acted to

5    clarify an ambiguous ruling and to avoid an unnecessary

6    remand premised solely on that ambiguity.

7        In any event, the hearing reconfirms what is already

8    clear from a contextual reading of the sentencing hearing

9    transcript: Judge Forrest intended a variance.    Therefore,

10   the lack of Rule 32(h) notice did not constitute plain

11   error.

12       At the same time, however, the stated sentencing

13   reasons are not memorialized in the SOR, as required by 18

14   U.S.C. § 3553(c)(2).    “‘[W]hile a remand to the district

15   court solely for the purpose of complying with section

16   3553(c)(2) will not result in any change in the conviction

17   or sentence[,] . . . a written statement of reasons is

18   beneficial because the Bureau of Prisons consults the

19   written judgment of conviction, which may contain

20   information relevant to a defendant’s service of sentence.’”

21   United States v. Verkhoglyad, 516 F.3d 122, 133-34 (2d Cir.

22   2008) (quoting United States v. Hall, 499 F.3d 152, 154-55

23   (2d Cir. 2007)).   Accordingly, although we do not identify

24   any procedural error warranting resentencing, we remand for

                                    6
1    the district court to file with the U.S. Sentencing

2    Commission a revised SOR to comply with 18 U.S.C. §

3    3553(c)(2) and 28 U.S.C. § 994(w)(1)(B).

4        2.   Substantive Reasonableness.       “Reasonableness

5    review does not entail the substitution of our judgment for

6    that of the sentencing judge.       Rather, the standard is akin

7    to review for abuse of discretion.      Thus, when we determine

8    whether a sentence is reasonable, we ought to consider

9    whether the sentencing judge exceeded the bounds of

10   allowable discretion, committed an error of law in the

11   course of exercising discretion, or made a clearly erroneous

12   finding of fact.”   United States v. Fernandez, 443 F.3d 19,

13   27 (2d Cir. 2006) (internal quotation marks and citation

14   omitted); see also United States v. Rigas, 583 F.3d 108, 123

15   (2d Cir. 2009) (reasonableness review is “deferential to

16   district courts and provide[s] relief only in the proverbial

17   ‘rare case’” that “damage[s] the administration of justice

18   because the sentence imposed was shockingly high, shockingly

19   low, or otherwise unsupportable as a matter of law”).

20       The district court’s sentence of 120 months’

21   imprisonment was by no means “shockingly high,”

22   “unsupportable as a matter of law,” or beyond the bounds of

23   discretion.   Moore’s history reflects multiple robberies and

24   instances of firearm possession.      He participated in a

                                     7
1    robbery in which guns were aimed at two victims, one an

2    infant.   The Pre-Sentence Report indicates multiple

3    incidents of misconduct while Moore was housed at the

4    detention complex and awaiting conviction.

5        Judge Forrest’s evaluation of the sentencing factors

6    was reasonable.   There is no reason to disturb the sentence

7    on appeal.

8        We have considered all of Moore’s remaining arguments

9    and conclude that they are without merit.    The judgment of

10   the district court is hereby affirmed.   We remand only to

11   permit the district court to correct the SOR.

12
13                               FOR THE COURT:
14                               CATHERINE O’HAGAN WOLFE, CLERK




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