18-368-cr
United States v. Armstrong


                              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 17th day of May, two thousand eighteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,
                                 District Judge.*
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UNITED STATES OF AMERICA,
                                 Appellee,

                             v.                                            No. 18-368-cr

DEREK ARMSTRONG,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          RICHARD A. FINKEL, Richard A. Finkel,
                                                  Esq., & Associates, PLLC, New York,
                                                  New York.

APPEARING FOR APPELLEE:                          ALICIA N. WASHINGTON, Assistant United
                                                 States Attorney (Emily Berger, Assistant United
                                                 States Attorney, on the brief), for Richard P.
                                                 Donoghue, United States Attorney for the

*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
                                         Eastern District of New York, Brooklyn,
                                         New York.

      Appeal from a judgment of the United States District Court for the Eastern District

of New York (Sterling Johnson, Jr., Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 8, 2018, is VACATED and the

case REMANDED.

      Defendant Derek Armstrong, who was sentenced in 2015 to three years’ probation

for filing false corporate tax returns, see 26 U.S.C. § 7206, here appeals from a

three-month prison sentence imposed for violating probation by failing to report for

random drug testing.        Armstrong contends that his sentence is procedurally

unreasonable because it is based on an erroneous fact asserted by the government at

sentencing.   Our reasonableness review of sentences, including those imposed for

probation violations, see United States v. Goffi, 446 F.3d 319, 320–21 (2d Cir. 2006); see

also United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008), amounts to “a

particularly deferential form of abuse-of-discretion review,” United States v. Cavera, 550

F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc). Applying that standard here, we assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to vacate the sentence and remand.

1.    Procedural Challenge

      A sentence is procedurally unreasonable if it is “based on clearly erroneous facts.”

United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks

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omitted); see United States v. Juwa, 508 F.3d 694, 700 (2d Cir. 2007) (recognizing

defendant’s “due process right to be sentenced based on accurate information”). The

government here acknowledges that, at sentencing, it erred in stating that Armstrong had

not made any of the back-tax payments ordered by the district court. By the time of

Armstrong’s probation violation sentencing, he had made at least 14 restitution payments

to the IRS, totaling some $2,000.1    Moreover, because the district court denied defense

counsel’s request to “reply” to the government’s “misrepresentation,” Gov’t App’x 163,

the record was not corrected before the district court pronounced Armstrong’s sentence.

       In urging this court to uphold the challenged sentence despite this factual

misrepresentation, the government argues that its erroneous statement did not

significantly affect the district court’s chosen sentence. We cannot confidently reach

that conclusion. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (recognizing

where “record indicates clearly that the district court would have imposed the same

sentence in any event,” any procedural error “may be deemed harmless” (internal

quotation marks omitted)).

       A sentencing judge is required to “state in open court the reasons for its imposition

of [a] particular sentence.” 18 U.S.C. § 3553(c); see United States v. Chu, 714 F.3d at

1
  To the extent the government now asserts that Armstrong had an obligation to pay back
taxes distinct from his obligation to pay $121,660 in restitution, Appellee Br. at 15 n.4,
the assertion is at odds with its representation to the district court that the “back taxes”
Armstrong failed to pay were “restitution owed to the IRS,” in the amount of $121,660,
which “ha[d] [not] been received by the IRS,” Gov’t App’x 160. We need not address
the matter further because, in any event, the government’s explicit statement at
sentencing that Armstrong had failed to pay any “restitution owed to the IRS,” id., is
clearly erroneous in light of his having in fact made, as the government now
acknowledges, more than a dozen payments toward such restitution.
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746 (stating that district court commits procedural error when it “fails adequately to

explain the chosen sentence” (internal quotation marks omitted)). While “we do not

require district courts to engage in the utterance of robotic incantations when imposing

sentences in order to assure us that they have weighed in an appropriate manner the

various section 3553(a) factors,” United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007)

(internal quotation marks omitted), a district court’s statement of reasons must at least be

“adequate” to permit “meaningful appellate review,” United States v. Cavera, 550 F.3d at

193 (internal quotation marks omitted).

       Here, the district court offered no explanation for the challenged three-month

sentence, beyond stating that it had “heard [defense counsel’s] argument” and “heard the

Government’s argument.”       Gov’t App’x 163.       On this record, we cannot discern

whether, or to what degree, the district court relied on the government’s erroneous

statement regarding a complete failure of restitution payments in imposing the challenged

sentence. 2   Accordingly, we vacate the challenged judgment and remand for

resentencing both to ensure that any sentence imposed is not influenced by an erroneous

fact and to give the district court an opportunity to clarify the reasons for the particular

sentence imposed.    See United States v. Juwa, 508 F.3d at 701–02 (remanding for

resentencing and for district court “to make clear the basis upon which the sentence rests”


2
  Defense counsel’s subjective impression that the district judge appeared “disturbed and
distressed” by the government’s non-payment assertion, Appellant Br. at 18 (internal
quotation marks omitted), may or may not indicate that the error informed the sentence.
The same conclusion obtains as to the district court’s request that the government clarify
whether its “back taxes” assertion referenced “restitution owed to the IRS.” Gov’t
App’x 160.
                                             4
where “it [wa]s unclear from the record whether the district court” based its sentence on

fact not properly established).

2.     Reassignment

       In the event of remand, Armstrong urges that his case be reassigned to a different

judge for resentencing. “Remanding a case to a different judge is a serious request

rarely made and rarely granted.” United States v. Singh, 877 F.3d 107, 122 (2d Cir.

2017) (internal quotation marks omitted). We will reassign a case “only in unusual

circumstances,” id. (internal quotation marks omitted), and, considering the factors set

forth in United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977), we identify no grounds for

such extraordinary action here.    Contrary to Armstrong’s argument that remand is

warranted because of “the firmness of the judge’s earlier-expressed views,” id. at 10, the

record shows that the district judge simply expressed no view here regarding the

government’s erroneous factual statement.

3.     Conclusion

       We have considered the parties’ other arguments and conclude that they are

without merit. Accordingly, we VACATE the sentence and REMAND to the district

court for resentencing.

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




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