18-636
U.S. v. Ndaula

                                 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 TO 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 15th day of November, two thousand nineteen.

PRESENT:
                 JOHN M. WALKER, JR.,
                 SUSAN L. CARNEY,
                             Circuit Judges,
                 JOHN G. KOELTL,
                             District Judge.*

_________________________________________

UNITED STATES OF AMERICA,

                 Appellee,

                         v.                                                         No. 18-636

ALEXANDER NDAULA,

           Defendant-Appellant.
_________________________________________

FOR DEFENDANT-APPELLANT:                                   MICHAEL KEITH BACHRACH, Law Office
                                                           of Michael K. Bachrach, New York, NY.



 *Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by
designation.
FOR APPELLEE:                                              FRANK TURNER BUFORD (Amy Busa, on
                                                           the brief), for Richard P. Donoghue, United
                                                           States Attorney for the Eastern District of
                                                           New York, Brooklyn, NY.

        Appeal from a judgment of the United States District Court for the Eastern District
of New York (Johnson, J.).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the cause is remanded for resentencing.

        Defendant-Appellant Alexander Ndaula appeals from a judgment of the United
States District Court for the Eastern District of New York (Johnson, J.), sentencing him to
two years of imprisonment, followed by an additional two years of supervised release, for
violating the conditions of his supervised release. We assume the parties’ familiarity with the
underlying facts, procedural history, and arguments on appeal, to which we refer only as
necessary to explain our decision to remand the cause for resentencing.

        Both parties agree that a remand for resentencing is required because the sentence
imposed by the District Court did not comply with 18 U.S.C. § 3583(h).1 Section 3583(h)
provides that the length of a post-revocation term of supervised release “shall not exceed the
term of supervised release authorized by statute for the offense that resulted in the original
term of supervised release, less any term of imprisonment that was imposed upon revocation
of supervised release.” Here, Ndaula’s original three-year term of supervised release resulted
from his conviction of two federal Class C felonies, each of which carries a maximum three-
year term of supervised release. See 18 U.S.C. § 3583(b)(2). The District Court, however,
imposed a four-year post-revocation sentence on Ndaula—i.e., two years of imprisonment
followed by an additional two years of supervised release—to run “concurrent on all




 1In their appellate briefs, Ndaula and the government appeared to disagree over the scope of the remand,
with Ndaula requesting a remand for resentencing and the government requesting a remand for “further
proceedings to clarify the record.” Gov’t Br. 10. At oral argument, however, the government clarified that it
does not oppose Ndaula’s request for resentencing.


                                                      2
violations.” App’x 257.2 This four-year sentence was not permitted by section 3583(h).
Because the District Court plainly erred by imposing “a sentence that exceeds the statutory
maximum,” we agree with the parties that “a remand for resentencing is required.” United
States v. Cadet, 664 F.3d 27, 33-34 (2d Cir. 2011).3

                                                      * * *

        For the foregoing reasons, the cause is REMANDED for resentencing consistent
with this order.

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




 2 The government contends that the District Court’s sentence would have complied with 18 U.S.C.
§ 3583(h) if the District Court had imposed the two-year term of imprisonment on one of the two counts of
conviction and then imposed the two-year term of supervised release on the other count. The District Court
gave no indication, however, that this was its intent. We offer no view here on the lawfulness of such a
hypothetical sentence.
 3 Under the plain-error standard of review, “an appellate court may, in its discretion, correct an error not

raised at trial only where the appellant demonstrates that (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, which in the
ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Rodriguez, 775 F.3d
533, 536 (2d Cir. 2014) (internal quotation marks and alterations omitted).


                                                         3
