09-0765-cr
USA v. Givens

                                    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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-sixth day of April, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                       Circuit Judges.*

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 09-0765-cr

TIMOTHY GIVENS, also known as Florida Tim,

                               Defendant-Appellant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR DEFENDANT-APPELLANT:                                       DONALD M. THOMPSON , Easton Thompson
                                                               Kasperek Shiffrin LLP, Rochester, NY.




          *
            The Honorable Rosemary S. Pooler, originally scheduled to be a member of the panel hearing this appeal, was
unable to participate. The appeal has been decided by the remaining two members of the panel, who are in agreement.
See 2d Cir. Local Rules, Internal Operating Procedure E(b).
                                                                    1
FOR APPELLEE:                                   MONICA J. RICHARDS, Assistant United States
                                                Attorney (Kathleen M. Mehltretter, United States
                                                Attorney, on the brief), Office of the United States
                                                Attorney for the Western District of New York,
                                                Buffalo, NY.

       Appeal from a judgment of the United States District Court for the Western District of New
York (Charles J. Siragusa, Judge).

        UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the cause is REMANDED for resentencing consistent
with this order.

         Defendant-appellant Timothy Givens (“defendant” or “Givens”) appeals from the District
Court’s order dated December 10, 2008 declining to resentence defendant and adhering to its
original sentence of 480 months’ imprisonment. We briefly recount the post-conviction procedural
history of the case, but we assume the parties’ familiarity with the remaining factual and procedural
history.

        Givens was convicted in 2002 of conspiracy to distribute cocaine base in violation of 21
U.S.C. § 846 (Count 2) and possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1) (Count 3). The District Court sentenced defendant to 420
months’ imprisonment on Count 2 and imposed a consecutive sentence of 60 months’
imprisonment on Count 3. See 18 U.S.C. § 924(c)(1)(A)(i). Defendant appealed both his conviction
and sentence to this Court.

        We affirmed defendant’s conviction but, in light of the Supreme Court’s intervening decision
in United States v. Booker, 543 U.S. 220 (2005), we remanded for further proceedings pursuant to our
opinion in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). See United States v. Givens (Givens I),
Nos. 03-1109-cr et al., 2005 WL 1317015 (2d Cir. June 1, 2005). On remand, the District Court
determined that its original sentence would not “have been nontrivially different under the post-
Booker[ ] regime,” Crosby, 397 F.3d at 119, and, accordingly, declined to vacate its original sentence.
Defendant again appealed his sentence to this Court.

         In a second summary order dated July 18, 2008, we remanded in light of Kimbrough v. United
States, 552 U.S. 85 (2007), and pursuant to this Court’s decision in United States v. Regalado, 518 F.3d
143 (2d Cir. 2008). See United States v. Givens (Givens II), Nos. 05-5189-cr et al., 2008 WL 2796341, at
*3 (2d Cir. July 18, 2008). Regalado adopted Crosby’s procedure of remanding sentences to allow the
District Court (1) to consider whether it would have imposed a different sentence in light of
intervening Supreme Court precedent, and, (2) if so, to vacate the original sentence and resentence
                                                   2
the defendant. See Regalado, 518 F.3d at 149. Although we indicated that we were remanding
Givens’ sentence “pursuant to” Regalado, our summary order “vacated” his original sentence and
remanded the case “for full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3. Thus, despite
purporting to remand “pursuant to” Regalado, we did not, in fact, follow the procedure set forth in
Regalado and Crosby.

         On remand for the second time defendant argued that, pursuant to our July 18, 2008 order,
the District Court was required to conduct a full resentencing. After hearing argument from both
parties the District Court concluded that our order did not require a full resentencing but, rather,
permitted the use of the more limited procedures set forth in Regalado and Crosby. Accordingly, the
District Court declined to conduct a full resentencing and it adhered to its original sentence of 420
months’ imprisonment on Count 2.

        Defendant has again appealed his sentence to this Court, arguing that (1) a remand is
required under the intervening decision in United States v. Williams, 558 F.3d 166, 168 (2d Cir. 2009)
(holding that “the mandatory minimum sentence under Section 924(c)(1)(A) is . . . inapplicable
where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking
offense that is part of the same criminal transaction or set of operative facts as the firearm offense”),
and (2) the District Court erred in not conducting a full resentencing pursuant to this Court’s July
18, 2008 order. The government concedes that a remand for resentencing is required under
Williams, but asks us to hold this appeal in abeyance until a petition for a writ of certiorari filed in
Williams is acted upon or that case is heard by the Supreme Court.

        We conclude that a remand for full resentencing is required pursuant to our July 18, 2008
order. As noted above, our July 18, 2008 summary order remanding defendant’s case for further
proceedings was far from clear. Ordinarily, when we remand a sentence pursuant to Regalado, the
decision to vacate the original sentence is left to the District Court. See 518 F.3d at 149. In this
case, however, we vacated the original sentence and remanded pursuant to Regalado. Moreover, we
ordered a “full re-sentencing” for defendant. See Givens II, 2008 WL 2796341, at *1, *3.

         Although remands based on a “specific sentencing error” are not ordinarily subject to a full
resentencing, “we must look to both the specific dictates of the remand order as well as the broader
spirit of the mandate” to determine the proper scope of proceedings on remand. United States v.
Quintieri, 306 F.3d 1217, 1227 (2d Cir. 2002) (internal quotation marks omitted). Here, the remand
order explicitly stated that Givens’ sentence was vacated and required the District Court to conduct a
“full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3 (emphasis added). Thus, despite the
ordinary procedure called for in Regalado, we conclude that the District Court was required to
comply with the specific terms of our July 18, 2008 order and conduct a full resentencing of Givens.


                                                    3
        We therefore remand for a full resentencing in accordance with our July 18, 2008 order. We
note that the District Court may, in its discretion, wish to postpone resentencing until the petition
for a writ of certiorari in United States v. Williams is acted upon or the issue is decided by the Supreme
Court.

                                               CONCLUSION

        In accordance with the foregoing, we REMAND the cause for full resentencing consistent
with this order.

                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




                                                    4
