         10-371-cr
         United States v. L.M.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                        AMENDED 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17th day of January, two thousand and
 5       twelve.
 6
 7       PRESENT: JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13
14       L.M.,*
15
16                                     Defendant-Appellant,
17
18                      -v.-                                                10-371-cr
19
20       UNITED STATES OF AMERICA,
21
22                                     Appellee.
23
24
25       FOR APPELLANT:                ELIZABETH E. MACEDONIO, Bayside, New
26                                     York.

                *
               By a motion dated January 4, 2012, the appellant
         requested that any order of this Court with regard to this
         case appear under the caption “L.M. v. United States” and
         that the name of the appellant not be specified. The
         government has not opposed the motion. The motion is
         granted.
 1   FOR APPELLEE:     BURTON T. RYAN, Assistant United States
 2                     Attorney (David C. James, Assistant
 3                     United States Attorney, on the brief),
 4                     for Loretta E. Lynch, United States
 5                     Attorney for the Eastern District of New
 6                     York, Brooklyn, New York.
 7
 8        Appeal from the United States District Court for the
 9   Eastern District of New York (Platt, J.).
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the judgment imposing an incarceratory

13   sentence of one year and one day is VACATED.       We REMAND for

14   resentencing proceedings consistent with this order.

15       L.M. appeals from a judgement of the United States

16   District Court for the Eastern District of New York imposing

17   an incarceratory sentence of one year and one day.       We

18   assume the parties’ familiarity with the underlying facts,

19   the procedural history, and the issues presented for review.

20                             BACKGROUND

21       The facts here are undisputed.       L.M. began distributing

22   marijuana in the 1980s.   He eventually came to the attention

23   of law enforcement, who executed a search warrant on his

24   home and confiscated ten pounds of marijuana.

25       That arrest was the genesis of a long and fruitful

26   cooperation with authorities.       L.M. provided information

27   that led to the arrests and successful prosecutions of a


                                     2
1    number of large-scale international drug dealers.       In

2    addition, he recorded his conversations with various members

3    of drug distribution organizations and made himself

4    available as a trial witness.       Because of his extensive

5    assistance to law enforcement, L.M. received a number of

6    credible threats of violence; to ensure his safety,

7    authorities installed a panic button in his home.       As the

8    government conceded at oral argument, L.M. “uniquely earned”

9    the government’s motion pursuant to Section 5K1.1 of the

10   United States Sentencing Guidelines urging a downward

11   departure.

12       Letters submitted on L.M.’s behalf, if credited, show

13   that his arrest also marked the beginning of an admirable

14   personal transformation.   In the nearly seventeen years that

15   have elapsed since his arrest, he has built both a family

16   and a business.   His wife of twenty-seven years describes

17   him as a devoted husband and a loving father to their four

18   children, and a colleague reports that L.M. is a widely-

19   respected and fair boss who dramatically reduced his own

20   salary in the economic downturn to avoid laying off

21   employees.   Further, letters from L.M.’s father and sister

22   describe L.M. as a compassionate son and brother, a man who

23   cared for them through their long illnesses.

                                     3
1        L.M. pleaded guilty to one count of conspiracy to

2    distribute marijuana and one count of filing a false tax

3    return.   The suggested Guidelines range was forty-six to

4    fifty-seven months of incarceration.     With little

5    explanation, the district court imposed an incarceratory

6    sentence of one year and one day.     Two weeks later, L.M.

7    filed a motion for reconsideration, which the district court

8    denied.   L.M. now appeals the district court’s sentence as

9    procedurally and substantively unreasonable.

10                            DISCUSSION

11       We review the sentence imposed by the district court to

12   ascertain whether it is reasonable.     Gall v. United States,

13   552 U.S. 38, 46-47 (2007); United States v. Cavera, 550 F.3d

14   180, 187-88 (2d Cir. 2008) (en banc).     Reasonableness review

15   is “akin to review for abuse of discretion.”     United States

16   v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).     Our review

17   for reasonableness has both procedural and substantive

18   components.   See, e.g., Cavera, 550 F.3d at 189.

19       L.M. first contends that his sentence is procedurally

20   unreasonable for two principal reasons: (1) the district

21   court did not properly consider the factors set forth in 18

22   U.S.C. § 3553(a) in fashioning its sentence; and (2) the

23   district court did not adequately explain its sentence as

                                   4
1    mandated by 18 U.S.C. § 3553(c).   We address only the second

2    argument here.   A sentence is procedurally unreasonable if,

3    among other things, the lower court fails to adequately

4    explain the basis for the sentence it imposed.    See, e.g.,

5    United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).

6    Requiring the district court to articulate the reasons for

7    its sentence (1) “helps to ensure that [it] actually

8    consider[s] the statutory factors and reach[es] [a] reasoned

9    decision[]”; (2) “promote[s] the perception of fair

10   sentencing”; and, most importantly, (3) assures “meaningful

11   appellate review.”    Cavera, 550 F.3d at 193 (internal

12   quotation marks omitted).

13       The district court did not adequately explain its

14   sentence.   Particularly troubling, given the passage of

15   fifteen years between L.M.’s arrest and sentencing, is the

16   court’s failure to discuss the extent to which it considered

17   evidence of L.M.’s rehabilitation in fashioning its

18   sentence.   See United States v. Hernandez, 604 F.3d 48, 55

19   n.4 (2d Cir. 2010).   Of course, the district court simply

20   might not have credited L.M.’s claims of rehabilitation, see

21   United States v. Preacely, 628 F.3d 72, 85 (2d Cir. 2010)

22   (Lynch, J., concurring), or it might have believed the

23   seriousness of L.M.’s crime outweighed even the most

                                    5
1    compelling evidence of rehabilitation.    However, given the

2    paucity of the district court’s explanation, we cannot be

3    sure that the district court arrived at a reasoned decision

4    over which we can meaningfully exercise appellate review.

5    For this reason, we vacate the sentence imposed by the

6    district court as procedurally unreasonable.

7        Because we determine that the sentence imposed on L.M.

8    is procedurally unreasonable, we do not address the thorny

9    issue of whether, under the unique circumstances of this

10   case, an incarceratory sentence of one year and one day is

11   substantively unreasonable.    On remand, the district court

12   shall have plenary authority to impose a sentence consistent

13   with law.   We further elect to remand in accordance with the

14   procedures set forth in United States v. Jacobson, 15 F.3d

15   19, 22 (2d Cir. 1994).    Either party may restore

16   jurisdiction to this Court to consider whatever arguments

17   remain or arise relating to L.M.’s resentencing by sending a

18   letter to the Clerk of the Court within 14 days of the

19   district court’s decision.    Any such proceedings will be

20   assigned to this panel.

21       After a thorough and searching review of the record, we

22   find L.M.’s remaining arguments to be meritless.

23

                                    6
1        For the foregoing reasons, the judgment of the district

2    court imposing an incarceratory sentence of one year and one

3    day is hereby VACATED.   We REMAND for resentencing

4    proceedings consistent with this order.   The mandate shall

5    issue forthwith.

 6
 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10




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