17-3648-pr
Reed v. United States

                                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 9th day of October, two thousand nineteen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                    CHRISTOPHER F. DRONEY,
                                 Circuit Judges.


CHARLES REED

                           Petitioner-Appellant,                     17-3648-pr

                           v.

UNITED STATES OF AMERICA,

                           Respondent-Appellee.


FOR PETITIONER-APPELLANT:                                VIDA M ALVY, Alvy Law PLLC, New
                                                         York, NY.

FOR RESPONDENT-APPELLEE:                                 CHARLES N. ROSE (Susan Corkery, on the
                                                         brief), Assistant United States Attorney, for
                                                         Richard P. Donoghue, United States
                                                         Attorney, Eastern District of New York,
                                                         Brooklyn, NY.

        Appeal from an October 25, 2017 order of the United States District Court for the Eastern
District of New York (Joanna Seybert, Judge).

                                                   1
        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the October 25, 2017 order of the District Court be and
hereby is VACATED and the cause is REMANDED for further proceedings consistent with this
order.

        Petitioner-Appellant Charles Reed (“Reed”) timely appeals from an order denying his
motion (made pursuant to 28 U.S.C. § 2255) to vacate, set aside, or correct his sentence in light of
the vacatur of a predicate state felony conviction. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

        The Supreme Court, in Custis v. United States, 511 U.S. 485 (1994), held that a criminal
defendant who successfully attacks a state sentence “may then apply for reopening of any federal
sentence enhanced by the state sentence[].” Id. at 497; see also United States v. Doe, 239 F.3d 473, 475
(2d Cir. 2001) Reed seeks review of his 240-month federal sentence on the basis that it was
enhanced on account of a 1993 New Jersey state conviction, which was vacated in 2015. The vacatur
of Reed’s predicate felony conviction effectively reduced the statutory mandatory minimum in this
case from 240 months to 120 months.

        Moreover, at the time of sentencing Reed was erroneously designated as a “Career
Offender” and thus classified in Criminal History Category VI, when in fact he lacked the number
of qualifying convictions required for that designation. See U.S.S.G. §§ 4B1.1(a), 4B1.2(b),
4A.2(e)(1)-(3), 4B1.2 cmt. 3. That error led to the calculation of his Sentencing Guidelines range at
the time of sentencing as 360 months to life imprisonment, rather than 210 to 262 months. In light
of the vacatur of Reed’s predicate felony conviction, moreover, his correct Sentencing Guidelines
range is actually 188 to 235 months. His 240-month sentence, which the District Court continued to
believe in considering his § 2255 petition was “considerably lower than the guidelines range of 360
months to life imprisonment,” A. 68-69, is actually in excess of the high end of the applicable
Guidelines range.

         These factors, taken together, suggest that in imposing the sentence, the District Court may
have been influenced by sentencing benchmarks that were either erroneously calculated at the time
or that have been altered by subsequent events. Accordingly, we hereby vacate the District Court’s
October 2017 order denying habeas relief, and remand to the District Court for reconsideration of
Reed’s habeas petition in light of the aforementioned considerations. In doing so, we express no
view as to the appropriate sentence, and we note that Reed’s current sentence is still within the
statutorily permissible range of 120 months to life imprisonment. On remand, the District Court, in
its discretion, may either reaffirm or modify Reed’s sentence, based on its consideration of all
relevant factors.

        We also decline Reed’s request that we transfer this case to a different judge.


                                                   2
                                      CONCLUSION

      For the foregoing reasons, we VACATE the October 25, 2017 order of the District Court
and REMAND the cause for proceedings consistent with this decision.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




                                              3
