16-2685-cr
United States v. Smith

                          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 2nd day of November, two thousand seventeen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,


                         v.                                              No.   16-2685-cr

JAMES SMITH,
                                 Defendant-Appellant,*

EDWIN CORNIEL, MARIO SANCHEZ,
AKA TICO, LEIVY ULERIO,
                    Defendants.

----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          MICHELLE ANDERSON BARTH, Law
                                                  Office of Michelle Anderson Barth, Burlington,
                                                  Vermont.



*
    The Clerk of Court is directed to amend the case caption as set forth above.

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APPEARING FOR APPELLEE:                    JUSTINA GERACI, Assistant United States
                                           Attorney (Karl N. Metzner, Assistant United
                                           States Attorney, on the brief), for Joon H. Kim,
                                           Acting United States Attorney for the Southern
                                           District of New York, New York, New York.

       Appeal from final judgment of the United States District Court for the Southern

District of New York (Richard M. Berman, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that we VACATE the sentence set forth in the final judgment entered

on July 28, 2016, and REMAND to the district court for the limited purpose of either

specifying the sentences imposed on Counts One and Two or resentencing the defendant.

       Defendant James Smith stands convicted based on his guilty plea to conspiracy to

commit Hobbs Act robbery (“Count One”), see 18 U.S.C. § 1951; conspiracy to traffic in

five kilograms or more of cocaine (“Count Two”), see 21 U.S.C. §§ 841(b)(1)(A), 846;

and discharging a firearm during one of the aforesaid crimes, resulting in death, see

18 U.S.C. § 924(j) (“Count Three”). On this appeal, he challenges only his 34-year

prison sentence.

       Specifically, Smith argues that the 24-year prison term pronounced on Count One

is unlawful because it exceeds the statutory maximum penalty of 20 years’ incarceration.

See 18 U.S.C. § 1951(a). We generally review sentencing challenges for abuse of

discretion, see United States v. Cavera, 550 F.3d 180, 187–88 (2d Cir. 2008) (en banc),

but where, as here, a defendant failed to assert the alleged sentencing error in the district

court, we review only for plain error, see United States v. Marcus, 560 U.S. 258, 262

(2010) (stating that plain error is (1) error, (2) that is “clear or obvious,” (3) that affects

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“substantial rights,” and (4) that “seriously affects the fairness, integrity, or public

reputation of judicial proceedings” (internal quotation marks omitted)). In applying that

standard here, we assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision.

       A district court plainly errs if it imposes a sentence that exceeds the maximum

authorized by law. See, e.g., United States v. Rodriguez, 775 F.3d 533, 536–37 (2d Cir.

2014) (identifying plain error in imposition of supervised release term exceeding

statutory maximum). It is not clear that the district court did so here. In imposing

Smith’s sentence, the district court stated:

       Having considered the factors at 18 U.S. Code, Section 3553(a), it is my
       judgment that James Smith be committed to the custody of the Bureau of
       Prisons to be imprisoned for a term of 34 years. That’s 24 for Counts One
       and Two and 10 consecutive for Count Three.

J.A. 57. The judgment of conviction similarly states that Smith is to be incarcerated for

a “total term of[] 34 years (24 years on counts one and two followed by a 10 year

consecutive term on count three).” Id. at 62. While the 20-year maximum sentence for

Hobbs Act robbery-conspiracy would not support a 24-year sentence on Count One

alone, the 10-year-to-life sentencing range for Smith’s narcotics conspiracy would allow

a 24-month sentence on Count Two alone or in conjunction with a 20-year sentence on

Count One.

       Thus, the district court did not err in imposing a total punishment of 24 years on

these two counts. What is not clear, however, is how the district court arrived at its

24-year total. The government contends that Smith “automatically received a sentence


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of 20 years on Count One and 24 years on Count Two, to run concurrently.” Appellee’s

Br. 12.   We think it possible that the district court so intended.            See U.S.S.G.

§ 5G1.2(b) (“The court shall determine the total punishment and shall impose that total

punishment . . . except to the extent otherwise required by law.”); id. cmt. n.1 (“Usually,

at least one of the counts will have a statutory maximum adequate to permit imposition of

the total punishment as the sentence on that count. The sentence on each of the other

counts will then be set at the lesser of the total punishment and the applicable statutory

maximum . . . .”). But such a sentence did not occur “automatically.” Title 18 U.S.C.

§ 3584(a), on which the government relies, only authorizes the concurrent or consecutive

nature of a prison term. It says nothing about the sentence’s length.

       “[T]he district court was required to specify the length of time to be served on

each count and whether those sentences run consecutively or concurrently.” United

States v. Kurti, 427 F.3d 159, 164 (2d Cir. 2005). We have excused a district court’s

failure to do so orally where the written judgment states the sentences imposed on each

count to arrive at the pronounced total. See United States v. Santopietro, 996 F.2d 17,

20 (2d Cir. 1993). That, however, is not this case.

      Some of our sister circuits have identified plain error in a district court’s failure to

pronounce sentence on each count. See United States v. Ward, 626 F.3d 179, 184–85

(3d Cir. 2010) (“[T]he District Court erred by failing to impose a sentence on each count,

and that error is plain.”); United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005)

(finding district court’s imposition of a 20-year general sentence on multiple counts to be

plain error where that sentence exceeded 10-year statutory maximum on one of counts).

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We need not decide that question today. We conclude only that because a sentence in

excess of 20 years on Count One would be plain error, and because the sentence on that

count cannot clearly be determined on the present record, it is appropriate to remand this

case for the limited purpose of allowing the district court to pronounce sentences on each

of Counts One and Two and, thus, to remove any doubt as to the legality of its total

24-year sentence. See United States v. Sanchez, 517 F.3d 651, 666 (2d Cir. 2008)

(remanding for clarification of district court’s understanding of its sentencing options).

       We have considered Smith’s remaining arguments and conclude that they are

without merit.    Accordingly, we VACATE Smith’s sentence and REMAND to the

district court either to specify the sentences imposed on Counts One and Two or to

resentence Smith.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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