17-2004-cr
United States v. Rosa




                                 In the
           United States Court of Appeals
                        for the Second Circuit


                            August Term, 2019
                             No. 17-2004-cr

                        UNITED STATES OF AMERICA,
                                 Appellee,

                                    v.

                            GILBERTO ROSA,
                           Defendant-Appellant.



             Appeal from the United States District Court
                 for the Eastern District of New York.
            No. 1:16-cr-101-1 — Sterling Johnson, Jr., Judge.



                        ARGUED: FEBRUARY 24, 2020
                         DECIDED: APRIL 17, 2020

           Before: LIVINGSTON, PARK, and NARDINI, Circuit Judges.



      Defendant-Appellant Gilberto Rosa appeals from a judgment entered
June 23, 2017, in the United States District Court for the Eastern District of
New York (Sterling Johnson, Jr., Judge), sentencing him to an 87-month term
of imprisonment. We conclude that Rosa’s sentence is procedurally
unreasonable because the district court failed to state its reasons for the
sentence imposed as required by 18 U.S.C. § 3553(c). We therefore
REMAND the case to the district court to conduct a resentencing.


                          DEVIN MCLAUGHLIN, Langrock Sperry &
                          Wool, LLP, Middlebury, VT, for Defendant-
                          Appellant.
                          MICHAEL P. ROBOTTI (Jo Ann M. Navickas, on the
                          brief), Assistant United States Attorneys, for
                          Richard P. Donoghue, United States Attorney for
                          the Eastern District of New York, Brooklyn, NY,
                          for Appellee.

WILLIAM J. NARDINI, Circuit Judge:

      Defendant-Appellant Gilberto Rosa appeals from a judgment entered

on June 23, 2017, in the United States District Court for the Eastern District

of New York (Sterling Johnson, Jr., Judge), sentencing him to an 87-month

term of imprisonment for conspiracy to commit wire fraud in violation of

18 U.S.C. § 1349 and aggravated identity theft in violation of 18 U.S.C.

§ 1028A.   Rosa argues that his sentence is procedurally unreasonable

because the district court failed to state in open court its reasons for the

sentence imposed. As we explain below, the district court did not state its




                                      2
reasons as required by 18 U.S.C. § 3553(c). We therefore remand the case to

the district court with instructions to vacate the sentence and to conduct a

resentencing that satisfies § 3553(c).

I.    BACKGROUND

      From January 2012 to June 2015, Rosa and several others took part in

a scheme to obtain car loans fraudulently. One of the ways they did this

was to use other people’s Social Security numbers in loan applications. On

March 10, 2016, Rosa pled guilty to an information charging him with

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 (Count One)

and aggravated identity theft in violation of 18 U.S.C. § 1028A (Count Two).

Under the plea agreement, Rosa agreed to pay his victims $798,542.43 in

restitution.

      Even after pleading guilty, Rosa kept committing crimes. In 2016, he

engaged in more fraud—this time in buying a used car dealership. Rosa

also failed to disclose to Pretrial Services that he made money through the

dealership, instead falsely claiming that he was working as a photographer.




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      In advance of sentencing, the Probation Office prepared a Presentence

Report (“PSR”) which described Rosa’s participation in more than thirty-

five fraudulent transactions—both before and after his plea—involving

$850,104.23 in fraudulently obtained funds. In calculating the range under

the United States Sentencing Guidelines, the PSR used a total offense level

of 26, which included a three-level enhancement pursuant to § 3C1.3 of the

Guidelines. The PSR used a criminal history category of II, yielding a range

of 70 to 87 months of imprisonment on Count One, to be followed by a

mandatory consecutive 24 months on Count Two, for a combined total

Guidelines range of 94 to 111 months.

      At Rosa’s sentencing hearing on April 27, 2017, the parties and the

district court agreed that the PSR had incorrectly applied § 3C1.3. That

enhancement applies only to post-plea conduct for which a defendant had

been separately convicted. The court recognized that, using an adjusted

offense level of 23, Rosa’s Guidelines range for Count One became 51 to 63




                                     4
months. Adding 24 consecutive months for Count Two, Rosa faced a total

range of 75 to 87 months.

      After hearing from both parties as well as three victims, the district

court sentenced Rosa to 63 months on Count One plus 24 consecutive

months on Count Two, for a total of 87 months. The court also ordered

restitution of $715,857.26. This was much less than the restitution amount

listed in the plea agreement: $798,542.43.

      During the hearing, the district court did not explain why it chose this

sentence. Nor did it adopt the PSR in open court. Rosa, however, did not

object to the sentence or ask the district court to explain its reasoning.

      On June 23, 2017, the district court entered its written judgment. The

judgment included a restitution order of $690,774.08, which was even lower

than the $715,857.26 that the court had announced at sentencing.

      The district court also issued a written statement of reasons dated

June 23, 2017 (“SOR”), which deviated from the oral sentencing in four

significant ways. First, the court checked a box indicating that it adopted




                                       5
the PSR without changes, even though at sentencing the district court had

adopted a materially different calculation by rejecting the § 3C1.3

enhancement. Second, the SOR identified the total offense level as 26

instead of 23, the level actually used at sentencing after rejection of the

enhancement. Third, the SOR incorrectly identified a Guidelines range of

70 to 87 months rather than the range of 75 to 87 months used at sentencing.

(The PSR had calculated 70 to 87 months only for Count One.) Fourth, the

SOR listed restitution as $690,774.08—the amount listed in the written

judgment—even though the court had orally ordered $715,857.26 at

sentencing.

       This appeal followed. 1




1 We note that, after Rosa filed his notice of appeal, the Government submitted a letter
request to the district court seeking an amended judgment altering the restitution amount
to $798,542.42, as proposed in the plea agreement (with a downward adjustment of one
cent, apparently accounting for a minor initial miscalculation). On June 7, 2018, the
district court granted that request.
         It is not apparent that the district court had jurisdiction to enter the amended
judgment. The Government’s letter cited Federal Rule of Criminal Procedure 36, which
permits the court to “correct a clerical error in a judgment,” but no clerical error, such as
a mistaken transcription, is apparent here. See United States v. DeMartino, 112 F.3d 75, 79
(2d Cir. 1997) (“Rule 36 . . . does not authorize the court to amend the oral sentence itself




                                             6
II.       DISCUSSION

          In reviewing the procedural reasonableness of a sentence, this Court

considers “whether the district court committed a significant procedural

error, ‘such as . . . failing to adequately explain the chosen sentence.’” 2

Section 3553(c) of Title 18 of the United States Code obligates a district court

to “state in open court the reasons for its imposition of the particular

sentence.” 3 This serves important goals, including:




or to modify the written judgment to effectuate an intention that the court did not express
in its oral sentence.”); United States v. Werber, 51 F.3d 342, 343 (2d Cir. 1995) (“Rule 36
authorizes a court to correct only clerical errors in the transcription of judgments, not to
effectuate its unexpressed intentions at the time of sentencing.” (footnote omitted)); see
also United States v. Thomas, 135 F.3d 873, 875 (2d Cir. 1998) (sentencing judge’s “desire . . .
to correct the sentence to comport with his original intentions (that were not stated at
sentencing) was not enough to justify modification under Rule 36”). Neither party has
raised any objections with respect to the amended judgment.
        Nevertheless, we need not address this issue because we remand with instructions
that the district court vacate the sentence and conduct a resentencing. On remand, we
expect the parties will be attentive to alerting the district court to the correct restitution
amount. Equipped with this information, the district court will have authority to order
restitution appropriately.

2United States v. Pruitt, 813 F.3d 90, 92 (2d Cir. 2016) (quoting Gall v. United States, 552 U.S.
38, 51 (2007)).

3   18 U.S.C. § 3553(c).




                                               7
          (1) to inform the defendant of the reasons for his sentence, (2) to
          permit meaningful appellate review, (3) to enable the public to
          learn why defendant received a particular sentence, and (4) to
          guide probation officers and prison officials in developing a
          program to meet defendant’s needs. 4

          We review for plain error where, as here, the defendant failed to raise

a § 3553(c) objection below. 5 To meet the plain error standard, Rosa must

establish four elements:

          (1) there is an error; (2) the error is clear or obvious, rather than
          subject to reasonable dispute; (3) the error affected the
          appellant’s substantial rights; and (4) the error seriously affects
          the fairness, integrity or public reputation of judicial
          proceedings. 6

We address each of these elements in turn.




4   United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004).

5 See United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007) (“We now hold that plain
error analysis in full rigor applies to unpreserved claims that a district court failed to
comply with § 3553(c).”); Fed. R. Crim. P. 52(b) (“A plain error that affects substantial
rights may be considered even though it was not brought to the court’s attention.”).

6United States v. Balde, 943 F.3d 73, 96 (2d Cir. 2019) (internal quotation marks omitted);
see Villafuerte, 502 F.3d at 209.




                                                 8
          A.       There is an error.

          First, we find error. At Rosa’s sentencing hearing, the district court

failed to provide any explanation of the sentence imposed. Notably, it did

not adopt the PSR in open court, which this Court has held can satisfy

§ 3553(c)’s requirement of an in-court explanation. 7 The district court stated

only that it reached its decision “[a]fter hearing arguments by the counsel

and reading the submissions and 3553(a) factors.” 8 Such a bare statement,

with nothing more, is insufficient to comply with § 3553(c). 9

          In arguing that the district court satisfied § 3553(c), the Government

points to precedent involving the separate procedural error of failing to




7   Molina, 356 F.3d at 277.

8   App’x at 38.

9See United States v. Genao, 869 F.3d 136, 141 (2d Cir. 2017) (no adequate explanation where
“the sentencing court explained only that it had ‘taken into consideration the factors of
3553(a), oral argument and the submissions, and . . . believe[d that] the sentence . . . [wa]s
sufficient but not greater than necessary to meet the aims of the statute,’” and failed to
offer any explanation for applying a contested 16-level enhancement (alterations in
original)); United States v. Zackson, 6 F.3d 911, 923 (2d Cir. 1993) (no adequate explanation
where sentencing court stated only “I have considered everything”).




                                              9
consider the sentencing factors set forth in 18 U.S.C. § 3553(a).                         The

Government is correct that this Court presumes that the sentencing judge

has considered all relevant § 3553(a) factors and arguments unless the

record suggests otherwise. 10 That presumption certainly applies here, and

is supplemented by the court’s explicit statement that it had considered the

§ 3553(a) factors. However, the fact that the court considered the § 3553(a)

factors and arguments does not satisfy the separate obligation under

§ 3553(c) to explain in open court how its consideration led to the sentence

imposed.

       To be sure, some of the same concerns animate our precedent on both

§ 3553(a) and § 3553(c). In both contexts, we have consistently refrained

from requiring the district court to explicitly address specific sentencing

considerations. We have also never required a district court to explain in

open court why any particular unselected sentence would be inappropriate




10See United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006), abrogated on other grounds by
Rita v. United States, 551 U.S. 338 (2007).




                                              10
(either because it is greater than necessary or because it is not sufficient to

satisfy the goals of sentencing); we do not oblige district courts to expressly

compare various numbers. Under § 3553(c), we simply expect the court to

identify the consideration or considerations driving the selection of the

sentence that was actually imposed. A district court’s explanation for why

it chose a particular sentence itself constitutes an explanation for why it

believed a higher or lower sentence would not have been “sufficient, but not

greater than necessary” to comply with the purposes of § 3553(a).

           There is no mechanical test for compliance with § 3553(c).      The

adequacy of an explanation is highly case specific, as “the length and level

of detail required varies depending upon the circumstances.” 11 This Court

has therefore refused to “encroach upon the province of district courts by

dictating a precise mode or manner in which they must explain the




11   Villafuerte, 502 F.3d at 210.




                                       11
sentences they impose.” 12 We have declined to “insist that the district court

address every argument the defendant has made or discuss every § 3553(a)

factor individually”; “prescribe any formulation a sentencing judge will be

obliged to follow in order to demonstrate discharge of the duty to consider

the Guidelines”; or otherwise require “robotic incantations by district

judges.” 13 This Court recognizes that “[s]entencing is a responsibility heavy

enough without our adding formulaic or ritualized burdens.” 14

           Indeed, the “statement” requirement of § 3553(c) sets a low threshold.

As the Supreme Court has explained: “The appropriateness of brevity or

length, conciseness or detail, when to write, what to say, depends upon

circumstances.” 15 Where, as here, “a judge decides simply to apply the




12United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007), superseded by statute on other
grounds as recognized in United States v. Smith, 949 F.3d 60, 64 (2d Cir. 2020).

13Villafuerte, 502 F.3d at 210 (punctuation, internal quotation marks, and citations
omitted); see United States v. Cassesse, 685 F.3d 186, 192 (2d Cir. 2012) (“Section 3553(c)
requires no specific formulas or incantations . . . .”).

14   United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc).

15   Rita, 551 U.S. at 356.




                                                12
Guidelines to a particular case, doing so will not necessarily require lengthy

explanation.” 16 “Circumstances may well make clear that the judge rests his

decision upon the Commission’s own reasoning that the Guidelines

sentence is a proper sentence . . . in the typical case, and that the judge has

found that the case before him is typical.” 17 Moreover, as this Court has

recognized, “a brief statement of reasons will generally suffice where the

parties have addressed only straightforward, conceptually simple

arguments to the sentencing judge.” 18 The “context and the record” may

render a district court’s explanation adequate even where “the judge might

have said more.” 19




16   Id.

 Id. at 357; see id. at 345, 358 (explanation adequate where sentencing judge stated that a
17

Guidelines sentence was appropriate as “the public needs to be protected”).

18   Cavera, 550 F.3d at 193 (internal quotation marks omitted).

19   Rita, 551 U.S. at 359.




                                              13
          Nonetheless, “[s]tating no reasons at all plainly falls short of the

requirement to state reasons that is set forth in § 3553(c), no matter what the

required level of specificity may be.” 20 Recently, this Court reaffirmed that

principle in United States v. Pugh, where the district court failed to explain a

sentence that involved consecutive statutory maximum terms on two

counts. 21       This Court recognized that the absence of any explanation

obscured the district court’s decision-making process, including but not

limited to the decision to impose consecutive rather than concurrent terms.

We do not read Pugh to deviate from longstanding precedent of this Court

holding that a district court need not use any particular set of words to

satisfy       § 3553(c)     or    expressly      address         any   particular   sentencing




20   United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005) (internal quotation marks omitted).

21   United States v. Pugh, 945 F.3d 9, 16, 27 (2d Cir. 2019).




                                                 14
consideration. 22 Pugh simply applies the settled principle that a district

court must provide some oral account of its reasoning that would permit an

understanding of how the district court weighed the relevant considerations

and selected the sentence imposed. Although the requisite detail will differ

by case, and may often be stated with concision, the utter absence of

explanation will never suffice.

       In the case before us, the district court understandably might not have

felt a need to explain its sentence in light of Rosa’s sheer number of

fraudulent schemes, particularly after just having heard from numerous

victims in open court. We do not question that the need for deterrence is

high in this case, and that such a need likely seemed obvious to the district

court. However, the fact that we can readily discern from the record any

number of good reasons for the sentence imposed does not eliminate the




22See Genao, 869 F.3d at 142 (“There is no requirement that a judge imposing a sentence
provide lengthy or elaborate explanations of the often multiple aggravating and
mitigating factors about the offense and the offender, or the precise weight assigned by
the court to the various, sometimes competing policy considerations relevant to
sentencing.”).




                                          15
district court’s independent obligation to explain its reasoning in open

court. Given this unusually spare sentencing transcript, we are constrained

to find that § 3553(c) was not satisfied here.

          B.      The error is clear or obvious

          Second, we conclude that the error was clear or obvious. This Court

has repeatedly held that a district court must offer at least some minimal in-

court explanation of its sentence.               Of course, “[t]he line between

appropriately succinct and inadequately silent may be difficult to draw in

particular cases.” 23 In close cases, to determine whether the inadequacy of

a district court’s explanation reflects a clear or obvious error, we have

focused on the “level of detail” in the district court’s statements at

sentencing. 24 Here, where the district court provided no detail at all as to its




23   Genao, 869 F.3d at 142.

24Villafuerte, 502 F.3d at 212; see id. (any error regarding adequacy of explanation was not
obvious as district court “was not mute at sentencing,” “found that the bottom of the
Guidelines range was ‘a fair sentence’ given [the defendant’s] conduct,” and “offered
reasons for rejecting [the defendant’s] arguments for a non-Guidelines sentence” (citation
omitted)).




                                            16
reasoning process and was silent on the subject of how it arrived at the

sentence imposed, the lack of compliance with § 3553(c) is clear.

       C.      The error affected Rosa’s substantial rights.

       Third, we conclude that the error affected Rosa’s substantial rights.

In so doing, we reject the Government’s argument that the district court’s

issuance of the SOR precludes a finding of plain error.

       This Court has previously declined to find plain error where a district

court failed to provide an in-court explanation but then adopted in writing

a PSR containing “factual findings . . . adequate to support the sentence.” 25

Where a district court adequately explains its sentence through subsequent

written adoption of a PSR, “the error”—that is, failure to provide an




25United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008); see Molina, 356 F.3d at 277 (no
plain error where “there were no specific factual findings and no explicit adoption by the
district court of appellant’s PSR in open court” but “[t]he adequate findings of defendant’s
PSR were adopted in the written judgment” (citation omitted)).




                                             17
adequate in-court explanation—“d[oes] not affect a substantial right of the

defendant.” 26

          Here, however, the SOR was unusually disconnected from the orally

imposed sentence and contained too many errors to reflect clear adoption of

the PSR and to serve as an adequate explanation for the sentence imposed.

Although the SOR purported to adopt the PSR without change, in fact the

district court had explained in open court that it was deviating significantly

from the PSR’s Guidelines calculation. Moreover, the SOR identified a

different total offense level and a different Guidelines range than those used

at sentencing. 27 And finally, the SOR identified a completely different

restitution amount than the amount imposed at sentencing.                    The SOR

provided only confusion, not an explanation.




26   Molina, 356 F.3d at 278.

27The SOR also stated that the sentence imposed fell within the Guidelines range even
though this sentence actually fell beneath the Guidelines range calculated in the PSR (94
to 111 months). It appears to be mere coincidence that the actual sentence imposed fell
not only within the range used at sentencing but also within the erroneous range in the
SOR.




                                           18
           Given the number of inaccuracies in the SOR, we conclude that the

error here affected Rosa’s substantial rights.

           D.      The error seriously affects the fairness, integrity, or public
                   reputation of judicial proceedings

           Fourth and finally, we conclude that the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. As the

Supreme Court explained in Rita v. United States, § 3553(c)’s requirement

protects public trust in the judiciary:

           The statute does call for the judge to “state” his “reasons.” And
           that requirement reflects sound judicial practice. Judicial
           decisions are reasoned decisions. Confidence in a judge’s use
           of reason underlies the public’s trust in the judicial institution.
           A public statement of those reasons helps provide the public
           with the assurance that creates that trust. 28

Here, no explanation of the sentence is evident from the record, whether

from the transcript of the sentencing hearing or other materials, and the

reasons underlying Rosa’s sentence are therefore not available either to this




28   Rita, 551 U.S. at 356.




                                           19
Court or the public. Accordingly, all four prongs of the plain error test are

satisfied in this case.

       We therefore remand with instructions that the district court conduct

a resentencing, during which the court will have an opportunity to clearly

set forth the reasons for its sentence. 29 In so doing, we stress that nothing in

this opinion should be read as intimating a view that this Court harbors

concerns regarding the substantive reasonableness of Rosa’s sentence. We




29As to the appropriate remedy, depending on the circumstances of a district court’s
failure to comply with § 3553(c), our Court has taken either of two approaches. In United
States v. Lewis, we remanded with instructions that the district court vacate the sentence
and conduct a full resentencing. 424 F.3d at 249. By contrast, in United States v. Zackson,
we “affirm[ed] the judgment of conviction and sentence” but remanded for an adequate
statement of reasons. 6 F.3d at 914. We also stated that the same panel would “retain
jurisdiction in the event of a subsequent appeal.” Id. at 924. (We commonly use the term
“Jacobson remand” to refer to the approach in which we “remand partial jurisdiction to
the district court to supplement the record on a discrete factual or legal issue while
retaining jurisdiction over the original appeal.” Corporación Mexicana De Mantenimiento
Integral, S. De R.L. De C.V. v. Pemex-Exploración Y Producción, 832 F.3d 92, 115 (2d Cir. 2016)
(Winter, J., concurring). The name derives from United States v. Jacobson, in which this
Court recognized the authority of federal appellate courts to seek “supplementation of a
record without a formal remand or the need for a new notice of appeal before the appellate
panel acts on the supplemental record.” 15 F.3d 19, 22 (2d Cir. 1994).) This Court has
discretion to follow either path. We conclude that the Lewis course is more appropriate
here, given the confusion caused by the conflicting restitution amounts. By directing the
district court to vacate the sentence and to conduct a fresh sentencing, the court will have
authority to enter a correct restitution order free from any jurisdictional doubt.




                                              20
limit ourselves to the single question of whether the record satisfies

§ 3553(c).

III.   CONCLUSION

       In sum, we hold that where a district court offers no explanation for

its sentence, and where neither the adopted PSR nor the SOR adequately

demonstrates the court’s reasoning, the court has committed plain error in

violation of § 3553(c).

       We therefore REMAND the case to the district court to vacate the

sentence and conduct a resentencing that satisfies § 3553(c).




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