15-1582-cr
U.S. v. Bobby Cain


15-1582-cr
U.S. v. Bobby Cain

                                 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 3rd day of October, two thousand sixteen.

PRESENT:             JON O. NEWMAN,
                     JOSÉ A. CABRANES,
                                  Circuit Judges,
                     JANE A. RESTANI,
                                  Judge. *


UNITED STATES OF AMERICA,

                            Appellee,

                            v.                                       15-1582-cr

BOBBY CAIN,

                            Defendant-Appellant,

ROBERT CAIN,

                            Defendant.




     *
      The Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.

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15-1582-cr
U.S. v. Bobby Cain


FOR APPELLEE:                                                 Michael Krouse and Karl Metzner,
                                                              Assistant United States Attorneys, for
                                                              Preet Bharara, United States Attorney for
                                                              the Southern District of New York, New
                                                              York, NY.

FOR DEFENDANT-APPELLANT:                                      Yuanchung Lee, Federal Defenders of
                                                              New York, Inc., New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Collen McMahon, Chief Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of conviction is AFFIRMED, and the cause
is REMANDED for the limited purpose of permitting the District Court to conform the written
judgment to its oral ruling regarding Cain’s obligation to make restitution payments amounting to 10
percent of his gross monthly income.

       Defendant-appellant Bobby Cain appeals from a judgment of conviction for conspiracy to
rob commercial establishments entered on May 12, 2015, following a guilty plea before the
Honorable Colleen McMahon in the Southern District of New York. On May 11, 2015, the District
Court sentenced Cain to 71 months’ imprisonment, three years’ supervised release, and restitution in
the amount of $4,608. We assume the parties' familiarity with the facts and procedural history of this
case.

         On appeal, Cain claims that that the District Court considered impermissible factors at
sentencing. See United States v. Leung, 40 F.3d 577, 586 (2d Cir. 1994). Upon review of the record in
its entirety, we conclude that Cain’s claim does not warrant relief. See United States v. Jacobson, 15 F.3d
19, 23 (2d Cir. 1994). The claim focuses on some of the sentencing judge’s statements in isolation,
but in context, it is clear that the statements were only comments on the unfortunate circumstances
of Cain’s early years.

         Nevertheless, a limited remand is appropriate in order to permit the District Court to correct
and conform its written judgment to the terms pronounced orally at sentencing. With regard to
Cain’s restitution obligations, the District Court’s written judgment reflected a 15 percent monthly
installment payment even though the District Court explicitly stated at sentencing that Cain was
responsible for “monthly installments of 10 percent” of his gross monthly income commencing
after his release from custody. A. 111. We have held that “[w]here an unambiguous oral sentence
conflicts with the written judgment, the constitutional right of a defendant to be present at
sentencing dictates that the oral pronouncement of sentence must control.” United States v. A-Abras
Inc., 185 F.3d 26, 29 (2d Cir. 1999). Because the District Court’s oral pronouncement was



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U.S. v. Bobby Cain


unambiguous in requiring Cain to pay 10 percent of his monthly income, we remand the cause with
instructions to correct the written judgment.

                                        CONCLUSION

         We have considered all of the arguments raised by defendant-appellant on appeal and find
them to be without merit except with respect to correcting the written judgment to conform with
the District Court’s controlling oral pronouncement. For the foregoing reasons, we AFFIRM the
judgment of conviction and REMAND the cause for the limited purpose of permitting the District
Court to conform the written judgment to its oral ruling regarding Cain’s obligation to make
restitution payments amounting to 10 percent of his gross monthly income.



                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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