   16-4020
   United States of America v. Gentle

                     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 ASUMMARY 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 9th day of May, two thousand eighteen.

   PRESENT:
            JOHN M. WALKER, JR.,
            DENNIS JACOBS,
                 Circuit Judges,
            MICHAEL P. SHEA,*
                 District Judge.
   _____________________________________

   UNITED STATES OF AMERICA,
            Appellee,

              -v.-                                    16-4020

   SAMUEL GENTLE,
            Defendant-Appellant.
   ____________________________________


   FOR DEFENDANT-APPELLANT:      Jared J. Scharf, White Plains,
                                 NY.

   FOR APPELLEE:                 Jennifer L. Beidel (Margery
                                 Feinzig and Sarah K. Eddy on the


        *   Judge Michael P. Shea, United States District
   Court for the District of Connecticut, sitting by
   designation.
                            brief), Assistant United States
                            Attorneys, for Geoffrey S.
                            Berman, United States Attorney
                            for the Southern District of New
                            York, New York, NY.

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

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is VACATED
and REMANDED.

     Samuel Gentle was convicted by a jury of one count of
obstructing the due administration of the Internal Revenue
Service, see 26 U.S.C. § 7212(a), and 38 counts of
assisting in the preparation of false tax returns, see
26 U.S.C. § 7206(2). The United States District Court for
the Southern District of New York (Seibel, J.) sentenced
Gentle to a total prison term of 51 months, comprised of 38
concurrent 15-month prison terms for the tax-return
offenses and a consecutive 36-month term of imprisonment
for the obstruction offense. The district court also
imposed a one-year term of supervised release, a special
assessment of $3,900, and a fine of $125,000. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     On appeal, Gentle does not challenge his 38 convictions
under § 7206(2) for preparing false tax returns. His
principal argument is that the trial evidence of
obstruction under § 7212(a) was insufficient to support his
conviction because the government failed adequately to
investigate the source of his bank deposits. As a result,
he contends that the evidence of obstruction under
§ 7212(a) amounted only to his preparation of the false tax
returns. Accordingly, he argues, he was impermissibly
sentenced to consecutive terms of imprisonment for the same
underlying conduct: preparing false tax returns.

     Gentle’s appellate arguments have been obviated by the
Supreme Court’s decision in Marinello v. United States, 138
S. Ct. 1101 (2018), handed down after Gentle filed his
brief. Marinello held that, “to secure a conviction under
the [provision in § 7212(a) at issue here], the Government
must show (among other things) that there is a ‘nexus’
between the defendant's conduct and a particular
administrative proceeding, such as an investigation, an
audit, or other targeted administrative action.” Id. at
1109. As the government has conceded, in a letter filed
with this Court pursuant to Federal Rule of Appellate
Procedure 28(j), “[t]he jury at Gentle’s trial was not told
it must find, and the proof did not show, that a particular
administrative proceeding was pending or reasonably
foreseeable to Gentle at the time he filed any of the
fraudulent returns at issue.”

     In light of Marinello, Gentle’s conviction under
§ 7212(a) cannot stand. We therefore VACATE the judgment
and REMAND the case to the district court for dismissal of
the § 7212(a) count and for de novo resentencing on the
remaining (unchallenged) counts of conviction, pursuant to
United States v. Powers, 842 F.3d 177 (2d Cir. 2016) (per
curiam). See United States v. Natal, 849 F.3d 530, 533,
538 (2d Cir.) (per curiam), cert. denied, 138 S. Ct. 276
(2017).1

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




    1 The process of resentencing under these circumstances
“need not be overly cumbersome” for the district court.
Powers, 842 F.3d at 181 n.10. While the court may not
“automatically impos[e] the same sentence on remand,” it
need not accept new “evidence . . . that could have been
submitted at the original sentencing,” and it may, in
“exercising [its] discretion [anew], decide[] to impose the
same sentence . . . it [di]d at the initial sentencing.”
United States v. Desnoyers, 708 F.3d 378, 387-88 (2d Cir.
2013).

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