     16-3369
     United States v. Hunter (Soborski)

                                          UNITED STATES COURT OF APPEALS
                                             FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

 1   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 2   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
 3   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
 4   CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
 5   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
 6   “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
 7   ANY PARTY NOT REPRESENTED BY COUNSEL.
 8
 9          At a stated term of the United States Court of Appeals for the Second Circuit, held at
10   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
11   on the 11th day of September, two thousand seventeen.
12
13   PRESENT:
14              BARRINGTON D. PARKER,
15              SUSAN L. CARNEY,
16                    Circuit Judges,
17              TIMOTHY C. STANCEU,
18                    Chief Judge, U.S. Court of Int’l Trade.*
19   _____________________________________
20
21   UNITED STATES OF AMERICA,
22
23                                  Appellee,
24
25                       v.                                                No. 16-3369
26
27   SLAWOMIR SOBORSKI, AKA SEALED DEFENDANT 5, AKA
28   GERALD,
29
30                                  Defendant-Appellant,
31
32   JOSEPH MANUEL HUNTER, AKA SEALED DEFENDANT 1,
33   AKA FRANK ROBINSON, AKA JIM RIKER, AKA RAMBO,
34   AKA JOSEPH HUNTER, MICHAEL FILTER, AKA SEALED
35   DEFENDANT 2, AKA PAUL, TIMOTHY VAMVAKIAS, AKA

            * Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by
     designation.
 1   SEALED DEFENDANT 3, AKA TAY, DENNIS GOGEL, AKA
 2   SEALED DEFENDANT 4, AKA DENNIS GOEGEL, AKA
 3   NICO, ADAM SAMIA, AKA SAL, AKA ADAM SAMIC, CARL
 4   DAVID STILLWELL, AKA DAVID STILLWELL,
 5
 6                   Defendants.**
 7   _____________________________________
 8
 9   FOR DEFENDANT-APPELLANT:                            William J. Stampur, Stampur & Roth, New
10                                                       York, NY.
11
12   FOR APPELLEE:                                       Emil J. Bove, III, Michael D. Lockard,
13                                                       Brian R. Blais, Assistant United States
14                                                       Attorneys, for Joon H. Kim, Acting United
15                                                       States Attorney for the Southern District of
16                                                       New York, New York, NY.
17
18          Appeal from a judgment of the United States District Court for the Southern District
19   of New York (Swain, J.).
20          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
21   ADJUDGED, AND DECREED that the sentence imposed by the District Court on
22   September 13, 2016, and entered as a part of the September 22, 2016 judgment is VACATED,
23   and the cause REMANDED for resentencing consistent with this order.
24          Defendant-Appellant Slawomir Soborski appeals the sentence he received after
25   pleading guilty to conspiring to import five or more kilograms of cocaine into the United
26   States. We assume the parties’ familiarity with the underlying facts and the procedural history
27   of the case, to which we refer only as necessary to explain our decision.
28          Soborski, a former member of the Polish armed forces trained as a sniper, was one of
29   four men recruited in 2013 to provide “counter-surveillance” and “security” services by
30   individuals who held themselves out as Colombian drug traffickers but who were in fact
31   confidential sources running a sting operation for the United States government. Soborski was
32   told he would be providing his services in connection with drug transactions involving “tons


            ** The Clerk of Court is directed to amend the caption to conform to the above.

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 1   of cocaine and millions of dollars” and possibly “assassinations.” Presentence Investigation
 2   Report dated May 4, 2015 (“PSR”) ¶ 30. Throughout 2013, Soborski was asked to provide, and
 3   did provide, security and counter-surveillance for meetings during which the participants
 4   trafficked, or discussed trafficking, illegal arms and narcotics. On one occasion in June 2013,
 5   Soborski provided surveillance of an airplane and observed it being loaded with what he was
 6   told was 300 kilograms of cocaine to be transported from the Caribbean to New York.
 7          Soborski was arrested in Estonia for these activities in September 2013 and held by
 8   Estonian authorities until his extradition to the United States in April 2014. On February 6,
 9   2015, without having entered into a plea agreement with the government, Soborski pleaded
10   guilty to conspiring to import five or more kilograms of cocaine into the United States, in
11   violation of 21 U.S.C. §§ 959, 960(a)(3), and 960(b)(1)(B). The Probation Office recommended
12   the following calculations under the Sentencing Guidelines: Starting from the base offense
13   level of 36, it added two levels under § 2D1.1(b)(3)(A) of the Guidelines for the involvement
14   of the airplane; subtracted two levels under § 2D1.1(b)(17) because Soborski met the “safety
15   valve” criteria under § 5C1.2(a); added two levels under § 3B1.3 because of Soborski’s use of
16   his special training; and subtracted three levels under § 3E1.1 for Soborski’s acceptance of
17   responsibility. The total offense level of 35, combined with Soborski’s criminal history of
18   category I, yielded a recommended range of 168-210 months’ imprisonment.
19          The District Court adopted the Probation Office’s calculations, with the exception of
20   the enhancement for the involvement of the airplane. It denied Soborski’s request for an
21   offense level reduction under § 3B1.2 for the minor role that, according to Soborski, he played
22   in the conspiracy. The District Court concluded that the reduction was inapplicable because it
23   found that Soborski willingly participated in the conspiracy with full knowledge of its nature
24   and scope. The court then noted that the Guidelines range under Soborski’s total offense level
25   of 33 was 135-168 months. It ultimately varied downward from the Guidelines range and
26   imposed a sentence of 108 months, citing Soborski’s military service, his age, and the harsh
27   conditions he endured while confined in Estonia before extradition.
28          Soborski has appealed his sentence. He does not challenge the factual findings in the

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 1   PSR, which were adopted in relevant part by the District Court. Rather, he contends that the
 2   District Court gave inadequate consideration to his arguments that: (1) the government
 3   effectively “manipulated” his base offense level under the Guidelines by creating a sting
 4   operation in which large “fictional” quantities of drugs were purportedly involved; and (2) he
 5   should receive an offense level reduction because his role in the conspiracy was minor. For the
 6   reasons set out below, we find Soborski’s sentencing manipulation argument unpersuasive. As
 7   to the role reduction, however, our review of the record leaves us uncertain about whether the
 8   District Court applied the correct standard in denying the reduction. We therefore vacate the
 9   sentence and remand for resentencing. Although the specific argument Soborski has made
10   with respect to the role reduction was not preserved, the plain error standard has been met
11   here. We find it unnecessary to address now Soborski’s additional argument that his sentence
12   was substantively unreasonable.
13          I.      Standard of review
14          “We review a sentence for procedural and substantive reasonableness, which is akin to
15   a deferential abuse-of-discretion standard.” United States v. McCrimon, 788 F.3d 75, 78 (2d Cir.
16   2015) (internal quotation marks omitted). A district court errs procedurally if it “fails to
17   calculate (or incorrectly calculates) the Guidelines range, treats the Guidelines as mandatory,
18   fails to consider the sentencing factors set forth in § 3553(a), selects a sentence based on clearly
19   erroneous facts, or fails to adequately explain the chosen sentence.” United States v. Pattee, 820
20   F.3d 496, 512 (2d Cir. 2016). A sentence is substantively unreasonable if it is “shockingly high,
21   shockingly low, or otherwise unsupportable as a matter of law.” United States v. Broxmeyer, 699
22   F.3d 265, 289 (2d Cir. 2012).
23          II.     Sentencing factor manipulation
24          Soborski contends that the District Court erred procedurally by not discussing at
25   sentencing Soborski’s argument that a lower sentence was warranted because the government
26   engaged in improper “sentencing factor manipulation” that increased his base offense level
27   under the Guidelines. Appellant’s Br. 21. He asks that we remand the case for resentencing so
28   that the District Court may reconsider his argument and make specific findings in support of

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 1   whatever conclusion it reaches. We decline to remand the case on this ground.
 2          Under the theory advanced by Soborski before the District Court, the source of the
 3   “manipulation” was the “completely fictional” quantities of cocaine that the government,
 4   through its sting operation, led Soborski to believe were involved in the drug trafficking
 5   operation that was facilitated by his actions. Id. at 22. According to Soborski, his mere
 6   awareness of the quantities that were purportedly being trafficked “did not reflect any desire
 7   on [his] part to traffic in specific quantities.” Id. Thus, he contends, the government’s choice of
 8   such large fictional quantities unfairly affected his Guidelines calculation. On appeal, he argues
 9   that the District Court erred by offering no explanation of why it declined to take the alleged
10   manipulation into account in deciding the appropriate sentence.
11          While it is true that the District Court did not discuss Soborski’s manipulation
12   argument during sentencing, we see no basis to remand for reconsideration of that argument.
13   The District Court was no doubt aware of the manipulation argument, which was briefed in
14   the sentencing memoranda it received from Soborski and the government. The absence of
15   discussion of the manipulation argument at sentencing is not error in itself or even reason to
16   believe that the argument was ignored: the District Court was not required during sentencing
17   to “expressly parse or address every argument . . . that [Soborski] advanced.” United States v.
18   Pereira, 465 F.3d 515, 523 (2d Cir. 2006). Our precedents apply “a strong presumption that the
19   sentencing judge has considered all arguments properly presented to her, unless the record
20   clearly suggests otherwise.” United States v. Robinson, 799 F.3d 196, 202 (2d Cir. 2015).
21          On the record presented here, we think it very likely that the District Court omitted
22   discussion of the manipulation argument not because of a failure to consider it, but because it
23   was a weak argument about which there was little to say. Soborski had not challenged the
24   PSR’s finding, later adopted by the District Court, that he willingly participated in the
25   conspiracy after being told that the conspiracy would entail trafficking “hundreds of kilos of
26   illegal drugs.” App. 186. At sentencing, Soborski could lawfully be held responsible for those
27   drug quantities, notwithstanding that the “idea of [the quantities] originated with the
28   [g]overnment” as part of a sting operation. See United States v. Cromitie, 727 F.3d 194, 226 (2d

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 1   Cir. 2013); see also United States v. Caban, 173 F.3d 89, 92-93 & n.1 (2d Cir. 1999). Any exception
 2   to this measure of responsibility on the basis of “sentencing manipulation” or “sentencing
 3   entrapment” would have required Soborski to show “outrageous misconduct” by the
 4   government, and he made no effort to do so. Cromitie, 727 F.3d at 226 (internal quotation
 5   marks omitted).
 6          For these reasons, we decline to remand the case for the District Court’s explicit
 7   consideration of Soborski’s sentencing manipulation theory.
 8          III.    Section 3B1.2 role reduction
 9          Soborski also argues that the District Court erred procedurally by conducting an
10   inadequate analysis of whether he qualified for a reduction in his Guidelines offense level by
11   virtue of his “minor role” in the conspiracy. Appellant’s Br. 19. We express no view as to
12   appropriateness of applying a minor-role reduction here. But we agree with Soborski, for
13   reasons we will explain, that remand is required here. As to Soborski’s minor-role argument,
14   unlike his sentencing manipulation contention, the record reflects that the District Court
15   considered this issue, but not that it was aware of a significant Guidelines amendment that
16   became effective shortly before Soborski’s sentencing (Amendment 794). We therefore vacate
17   Soborski’s sentence and remand for resentencing to ensure that the District Court has had an
18   opportunity to consider the proposed role reduction, and to explain its decision, with the
19   benefit of the full guidance provided by the recent Guidelines amendment.
20          Under § 3B1.2 of the Guidelines, a defendant’s offense level is reduced by two levels if
21   he was a “minor participant in any criminal activity,” four levels if a “minimal participant,” and
22   three levels if falling somewhere between those two categories. U.S.S.G. § 3B1.2. Amendment
23   794, which became effective in November 2015, less than a year before Soborski’s sentencing,
24   modified significantly—especially within this Circuit—the factors that a district court should
25   consider in deciding whether to apply the reduction. It added to the Guidelines commentary
26   the following non-exhaustive list of factors that the district court “should consider” among the
27   “totality of the circumstances”:
28              (i) the degree to which the defendant understood the scope and structure

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 1              of the criminal activity;
 2
 3              (ii) the degree to which the defendant participated in planning or
 4              organizing the criminal activity;
 5
 6              (iii) the degree to which the defendant exercised decision-making
 7              authority or influenced the exercise of decision-making authority;
 8
 9              (iv) the nature and extent of the defendant’s participation in the
10              commission of the criminal activity, including the acts the defendant
11              performed and the responsibility and discretion the defendant had in
12              performing those acts;
13
14              (v) the degree to which the defendant stood to benefit from the criminal
15              activity.
16   U.S.S.G. app. C, amend. 794 (amending U.S.S.G. § 3B1.2 cmt. n.3(C)). The amendment also
17   clarified that a reduction for a minor role is not necessarily precluded by a defendant’s
18   performance of “an essential or indispensable role in the criminal activity,” and that a
19   defendant with an essential or indispensable role may still receive a role reduction if he or she
20   was “substantially less culpable than the average participant in the criminal activity.” Id. Finally,
21   in the commentary, the Sentencing Commission meaningfully changed the phrase
22   “substantially less culpable than the average participant” to “substantially less culpable than
23   the average participant in the criminal activity.” Id.
24          Explaining its reason for adding the words “in the criminal activity,” the Commission
25   described a circuit split over the meaning of “the average participant”: some circuit courts
26   interpreted it to mean the average among those “participat[ing] in the criminal activity at issue
27   in the defendant’s case,” id., while other circuits—including ours—looked to the average
28   participant among “the universe of persons participating in similar crimes,” id. (citing United
29   States v. Rahman, 189 F.3d 88 (2d Cir. 1999)). The Commission stated that it added the words
30   “in the criminal activity” because it favored the former interpretation, under which “the
31   defendant’s relative culpability is determined only by reference to his or her co-participants in
32   the case at hand.” Id.


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 1           We give the Commission’s “interpretation of its own Guideline controlling weight
 2   unless it is plainly erroneous or inconsistent with the regulation or violates the Constitution or
 3   a federal statute.” United States v. Lacey, 699 F.3d 710, 716 (2d Cir. 2012) (internal quotation
 4   marks omitted). The Commission’s clear directive is for courts to determine a defendant’s
 5   relative culpability only by reference to co-participants in the case at hand, and we perceive no
 6   reason not to give its interpretation controlling weight.
 7           In September 2016, denying Soborski’s request for a minor-role reduction, the District
 8   Court stressed that Soborski understood the full scope of the criminal enterprise he was
 9   joining. Soborski’s understanding, the court observed, “distinguishe[d] . . . Soborski from a
10   mere courier or low-level participant in a larger criminal enterprise” and was “a factor worthy
11   of consideration” under “comment 3(i) of Section 3B1.2.” App. 164. The District Court did
12   not discuss the relative culpability of others involved in the specific criminal enterprise at issue
13   in the case, nor did it cite any of the other listed factors added to the § 3B1.2 commentary by
14   Amendment 794.
15           The District Court’s failure to mention more than one of the factors listed in the
16   § 3B1.2 commentary would probably not, by itself, be cause for remand. To be sure, reliance
17   on only one factor in deciding whether to apply a minor-role reduction under would stand in
18   tension with the “totality of the circumstances” approach directed by the commentary, an
19   approach that is further reflected in the new list of factors that a court “should consider.”
20   U.S.S.G. app. C, amend. 794. We are mindful, however, that the commentary does not
21   mandate a specific multi-factor analysis,1 and that a district court is (as we have said) generally
22   presumed to have properly considered the relevant provisions of the Guidelines as long as the
23   court is aware of those provisions and “nothing in the record indicates misunderstanding” of

             1
                Citing United States v. Quintero-Leyva, 823 F.3d 519, 523-24 (9th Cir. 2016), Soborski suggests
     that the District Court was required to consider all the factors listed in the § 3B1.2 commentary.
     Although a district court would generally do well to consider the factors officially proposed by the
     Sentencing Commission, the commentary provides that a district court “should consider” the listed
     factors, language that we interpret as a recommendation, rather than a mandate. See United States v.
     Maria, 186 F.3d 65, 70-71 (2d Cir. 1999) (contrasting use of “should” in Guidelines with use of “shall”
     and “must”).

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 1   them. United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005); see also United States v. Malki, 609
 2   F.3d 503, 512 (2d Cir. 2010) (district court presumed to have faithfully discharged duty to
 3   consider statutorily enumerated sentencing factors). A district court is not required to use
 4   “specific verbal formulations . . . to demonstrate the adequate” consideration of a § 3B1.2 role
 5   reduction. Fleming, 397 F.3d at 100.
 6          We have little doubt that the District Court correctly utilized the November 2015
 7   version of the Guidelines containing the modified version of § 3B1.2: the District Court said
 8   that it “used the November 2015 edition” of the Guidelines. App. 185. And, in discussing
 9   § 3B1.2, it mentioned “comment 3(i),” likely a reference to comment 3(C)(i), which did not
10   exist in earlier versions. App. 164. But a judge familiar with the November 2015 edition of the
11   Guidelines would not necessarily be aware of the Sentencing Commission’s statement of
12   reasons for issuing Amendment 794, which appears in a separately bound supplement. The
13   Commission’s statement declares the Commission’s position with respect to the circuit split
14   described above, but the position is much less evident from merely the addition of the phrase
15   “in the criminal activity” to the relevant section of the Guidelines Manual itself.
16          The record thus leaves us unsure about whether the District Court knew that
17   Amendment 794 rejected the “universe of persons” standard applied by our precedents under
18   the older version of the § 3B1.2 commentary. A few circumstances suggest that the District
19   Court may have compared Soborski’s role to the universe of people participating in similar
20   crimes, as our Court previously instructed. First, the District Court contrasted Soborski with
21   “a mere courier or low-level participant in a larger criminal enterprise,” App. 164 (emphasis
22   added), language suggesting that the District Court did not have in mind couriers or low-level
23   participants in the specific conspiracy in which Soborski participated. Second, the transcript of
24   the sentencing proceeding offers no countervailing indication that the District Court did draw
25   comparisons within the conspiracy: the District Court did not reference any such comparisons
26   in discussing the § 3B1.2 role reduction.
27          Third, the procedural history of this case made a misunderstanding of Amendment
28   794’s full import unusually likely here. Amendment 794 did not go into effect until November

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 1   1, 2015, after many of the presentence proceedings.2 On January 22, 2015, the government
 2   issued a letter advising the defense of the government’s views regarding the application of the
 3   Guidelines, pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991). The letter made
 4   no reference to § 3B1.2. Following Soborski’s guilty plea, Probation issued a PSR on April 9,
 5   2015, and a revised PSR on May 4, 2015, and made sentencing recommendations without
 6   reference to § 3B1.2. The defense submitted a sentence memorandum on October 8, 2015,
 7   arguing for a § 3B1.2 reduction, but applying the “universe of persons” standard that we
 8   previously endorsed.
 9           Even events in this case after Amendment 794 went into effect leave us uncertain
10   whether the District Court was alerted to the Commission’s new position with respect to
11   comparisons of culpability. The government’s November 5, 2015 sentencing memorandum
12   made no mention of Amendment 794. Indeed, the government still, in its brief in this appeal,
13   has not articulated a position with respect to Amendment 794. Following postponement of the
14   sentencing hearing, the defense filed a four-page supplemental sentencing memorandum on
15   September 6, 2016, again not addressing Amendment 794. Soborski was sentenced on
16   September 13, 2016, without any discussion of Amendment 794 during the hearing.
17           In light of all the circumstances we have identified and despite the District Court’s care
18   and experience, the court’s statement of its reasons for rejecting a role reduction leaves us with
19   substantial doubt about whether it applied the new standard. We think therefore that the
20   proper course is to vacate the sentence and remand the case to the District Court for
21   resentencing, to ensure that the District Court has had an opportunity to consider the
22   proposed role reduction, and explain its decision, with the benefit of the full guidance

             2
               The District Court was correct to apply the version of the Guidelines in effect at the time of
     sentencing, unless doing so violated the Ex Post Facto Clause. See 18 U.S.C.A. § 3553(a)(4)(A)(ii);
     U.S.S.G. § 1B1.11; Peugh v. United States, 133 S. Ct. 2072, 2082 (2013). That Amendment 794 postdates
     Soborski’s criminal conduct and much of the criminal proceedings against him does not raise ex post
     facto concerns here. Soborski does not contend that applying the November 2015 version of the
     Guidelines, rather than the version in effect at the time of his criminal conduct, increases the sentence
     recommended by the Guidelines—indeed, he argues that an amendment effective November 2015
     could reduce the sentence recommended by the Guidelines.

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 1   provided by Amendment 794. See, e.g., United States v. Cossey, 632 F.3d 82, 88-89 (2d Cir. 2011)
 2   (remanding for resentencing where it was unclear from record whether district court
 3   considered wrong factors in sentencing defendant).
 4          IV.     Plain error
 5          The government asserts that Soborski failed to raise the Amendment 794 issue before
 6   the District Court and therefore, to merit resentencing, must show that the District Court
 7   committed plain error: that is, the error must be “clear or obvious, rather than subject to
 8   reasonable dispute”; must have “affected [Soborski’s] substantial rights, which in the ordinary
 9   case means it affected the outcome of the district court proceedings”; and must “seriously
10   affect[] the fairness, integrity or public reputation of judicial proceedings.” United States v.
11   Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks omitted). We agree with the
12   government that Soborski must show plain error, but we conclude that in these circumstances
13   he has met the plain error standard.
14          Amendment 794 itself is not ambiguous nor its significance subject to reasonable
15   dispute. The Commission spoke quite clearly in its rejection of our precedent concerning the
16   “average” participant. And denying under the incorrect standard Soborski’s request for a
17   Guidelines role reduction—which we think may well have happened—would seriously affect
18   Soborski’s rights and the fairness of the proceedings against him. The potential sentencing
19   consequences are large: the parties agree that applying a minor-role reduction here would
20   ultimately lower Soborski’s total offense level from 33 to 28, moving the recommended
21   sentencing range from 135-168 months’ imprisonment to 78-97 months’ imprisonment.
22          We do not know whether the District Court, applying the updated standard on remand,
23   will grant a role reduction, nor do we direct the District Court to impose any particular
24   sentence. But the Guidelines are an important anchoring point in sentencing determinations,
25   and a range of 78-97 months would be well below even the 108-month sentence originally
26   imposed by the District Court after a significant downward variance. We therefore find the
27   plain error standard to be satisfied here. See Molina-Martinez v. United States, 136 S. Ct. 1338,
28   1349 (2016) (“[I]n most cases the Guidelines range will affect the sentence. . . . [A] defendant

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 1   sentenced under an incorrect Guidelines range should be able to rely on that fact to show a
 2   reasonable probability that the district court would have imposed a different sentence under
 3   the correct range. That probability is all that is needed to establish an effect on substantial
 4   rights for purposes of obtaining relief under Rule 52(b).”); United States v. Wernick, 691 F.3d
 5   108, 117 (2d Cir. 2012) (holding that error leading to large change in Guidelines range was
 6   grounds to treat error as affecting substantial rights and seriously affecting fairness of judicial
 7   proceedings).
 8          V.       Substantive reasonableness
 9          Having identified a procedural error warranting remand, we do not reach Soborski’s
10   challenge to the substantive reasonableness of his sentence. See United States v. Cavera, 550 F.3d
11   180, 190 (2d Cir. 2008) (en banc).
12                                                  ***
13          Accordingly, we VACATE Soborski’s sentence and REMAND the cause for
14   resentencing consistent with this order.
15
16                                                        FOR THE COURT:
17                                                        Catherine O’Hagan Wolfe, Clerk of Court




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