     14-1210
     United States v. Baires
                               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
ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 29th day of January, two thousand sixteen.
 4
 5   PRESENT:
 6              GUIDO CALABRESI,
 7              GERARD E. LYNCH,
 8              RAYMOND J. LOHIER, JR.,
 9                    Circuit Judges.
10   _____________________________________
11
12   UNITED STATES OF AMERICA,
13                  Appellee,
14
15                     v.                                           No. 14-1210-cr
16
17   JOSE BARRERA, AKA Travieso, KEVIN
18   CARDONA, AKA Stalker, RUDY
19   GUEMBES-LORENA, AKA Darky, CARLOS
20   HERNANDEZ, AKA Morro, ABRAHAM
21   IRAHETA, AKA Lobo, ALEX MACHADO,
22   AKA Negro, CHRISTIAN MERINO, AKA
23   Casper, NELSON QUINTEROS, AKA Sonic,
24                   Defendants,
25
26   WILBER BAIRES, AKA Doofy,
27                    Defendant-Appellant,
28   ____________________________________
 1   FOR APPELLEE:                                   DARREN A. LAVERNE, Assistant
 2                                                   United States Attorney (Susan Corkery,
 3                                                   Assistant United States Attorney, on the
 4                                                   brief), for Robert Capers, United States
 5                                                   Attorney for the Eastern District of New
 6                                                   York, New York, NY.
 7
 8   FOR DEFENDANT-APPELLANT:                        DANIEL S. NOOTER, Washington, DC.
 9
10          Appeal from the United States District Court for the Eastern District of New York
11   (William F. Kuntz, II, Judge).
12
13          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

14   AND DECREED that the judgment of the district court is REMANDED for further

15   proceedings consistent with this order.

16          Defendant-Appellant Wilber Baires appeals from a judgment of conviction entered

17   on April 16, 2014 in the United States District Court for the Eastern District of New York

18   after he pled guilty to conspiracy to commit assault with a dangerous weapon in aid of

19   racketeering, in violation of 18 U.S.C. § 1959(a)(6). Baires challenges his sentence,

20   which was above the advisory U.S. Sentencing Guidelines range, as both procedurally and

21   substantively unreasonable. We assume the parties’ familiarity with the underlying facts

22   and procedural history of the case.

23          Baires and nine codefendants were charged in an indictment alleging activities

24   relating to a chapter of the Mara Salvatrucha (“MS-13”) gang. Baires himself was named

25   only in a single count charging conspiracy to assault members of a rival gang with

26   dangerous weapons from 2007 through 2011. According to the Presentence Investigation

27   Report (“PSR”), Baires participated in planning an attack on members of a rival gang in

                                                 2
 1   January 2011; the plan was forestalled by the police, and the attack was never carried out.

 2   Although no other specific incidents were mentioned in the PSR, Baires allocuted more

 3   generally to agreeing with other MS-13 members to assault members of rival gangs during

 4   the period charged. The PSR calculated the applicable guidelines range as 24 to 30

 5   months, and neither the PSR nor the government suggested any reason to impose a

 6   sentence in excess of that range. The district court adopted the PSR’s factual statements

 7   and guidelines analysis, but nevertheless imposed an above-guidelines sentence of 36

 8   months’ imprisonment, the maximum possible sentence under the statute.

 9          At the sentencing hearing, the district court stated only the following rationale for

10   the sentence: “Given the nature of the offense and your circumstances this court imposes a

11   sentence of 36 months. That appears to be sufficient but not greater than necessary to

12   comply with the purposes set forth in 18 U.S.C. Section 3553(a).” The court did not

13   discuss any particular § 3553(a) factors, identify any particular factual findings that formed

14   the basis for its decision to impose a sentence above the guidelines range, or articulate a

15   rationale for the sentence chosen.

16          We review the reasonableness of a sentence under a “deferential abuse-of-discretion

17   standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A district court commits

18   procedural error where it fails to calculate (or improperly calculates) the Sentencing

19   Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18

20   U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails



                                                   3
 1   adequately to explain the chosen sentence.” United States v. Morrison, 778 F.3d 396, 399

 2   (2d Cir. 2015) (alteration in original), quoting United States v. Robinson, 702 F.3d 22, 38

 3   (2d Cir. 2012). A district court is required, under 18 U.S.C. § 3553(c), to “state in open

 4   court the reasons for its imposition of [a] particular sentence.” Baires challenges the

 5   procedural reasonableness of his sentence because the district court did not adequately

 6   explain its reasons for imposing the sentence, which exceeds the highest point of the

 7   applicable guidelines range.

 8          We conclude that the district court plainly did not meet its obligation to state its

 9   reasons for imposing its sentence, particularly one that exceeds the guideline

10   recommendation. Because Baires did not raise the error at sentencing, we review only for

11   plain error, United States v. Cassesse, 685 F.3d 186, 188 (2d Cir. 2012), for which we may

12   reverse only if we find that an error affects a defendant’s substantial rights. We have held

13   that when the district court’s statements at sentencing provide an insufficient basis for a

14   reviewing court to determine the reason that the district court imposed the sentence, that

15   error affects a defendant’s substantial rights. United States v. Lewis, 424 F.3d 239, 247

16   n.5 (2d Cir. 2005). See also United States v. Fama, __ F. App’x __, 2016 WL 277750 (2d

17   Cir. Jan. 22, 2016). Certainly where, as here, the district court gave absolutely no

18   indication as to its reasons for the sentence imposed, we have no meaningful basis upon

19   which to review the reasonableness of the sentence.1


     1
       Baires also challenges his sentence as substantively unreasonable. Absent an explanation of the
     reasons why the sentence was imposed, we cannot (and thus do not) evaluate that claim.

                                                    4
 1          Moreover, the failure to explain a sentence can “seriously affect the . . . public

 2   reputation of judicial proceedings,” United States v. Olano, 507 U.S. 725, 736 (1993)

 3   (internal quotation marks and alteration omitted). The failure to explain a sentence leaves

 4   the public, and the defendant, in the dark about why a particular punishment is imposed;

 5   particularly when the sentence is outside the norm, unwarranted speculation that the

 6   sentence may have been chosen for inappropriate reasons may be unnecessarily

 7   encouraged.

 8          Accordingly, we remand with instructions to vacate Baires’s sentence and conduct

 9   resentencing proceedings. In view of the time that has passed since the sentence was

10   imposed, and the relatively short time remaining on the sentence, we expect the district

11   court to proceed with the utmost expedition in resentencing. In the interest of such

12   expedition, this panel will retain jurisdiction over any subsequent appeal, see United States

13   v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), and should there be such an appeal, the parties

14   should request expedited briefing and argument. Accordingly, the judgment of the district

15   court is REMANDED for further proceedings consistent with this order. The mandate

16   shall issue forthwith.

17                                              FOR THE COURT:
18                                              Catherine O’Hagan Wolfe, Clerk




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