18-234-cr
United States v. Lopez

                          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 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
1st day of June, two thousand eighteen.

Present:
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                18-234-cr

JOSE LOPEZ,

                         Defendant-Appellant.

_____________________________________

For Appellee:                              TIFFANY H. LEE, Assistant United States Attorney, Of
                                           Counsel, for James P. Kennedy, Jr., United States
                                           Attorney for the Western District of New York, New
                                           York, NY.

For Defendant-Appellant:                   STEVEN SLAWINSKI, Federal Public Defender’s Office,
                                           Western District of New York, Rochester, NY.




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

New York (Larimer, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is REMANDED.

        Defendant-Appellant Jose Lopez pleaded guilty to one charge of violating a condition of

his supervised release after he tested positive for drug use on multiple occasions during his term

of supervision.    Based on this plea, the district court sentenced Lopez principally to ten months’

imprisonment on January 22, 2018.          Lopez appeals his sentence and contends that the district

court’s mistake in its United States Sentencing Guidelines (“Guidelines”) calculation was

procedurally unreasonable.          Lopez also argues that his sentence was substantively

unreasonable.     We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

        The parties agree that the district court committed a procedural error by mistakenly

calculating the applicable Guidelines range to be 18 to 24 months, when the correct Guidelines

range should have been 7 to 13 months.1          See United States v. Cavera, 550 F.3d 180, 190 (2d

Cir. 2008) (“A district court commits procedural error where it . . . makes a mistake in its

Guidelines calculation.”).     Because Lopez failed to object to this error at the time of sentencing,

our review is for plain error. United States v. Marcus, 560 U.S. 258, 262 (2010) (noting plain

error review requires assessing whether (1) there is an error; (2) the error is clear or obvious; (3)



1
  The district court determined that Lopez pleaded guilty to a Grade B violation, which is “conduct
constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one
year.” U.S.S.G. § 7B.1(a)(2). This led the district court to conclude that the applicable Guidelines
range was 18 to 24 months. In fact, Lopez pleaded guilty to a Grade C violation, which is “conduct
constituting (A) a federal, state or local offense punishable by a term of imprisonment of one year or less;
or (B) a violation of any other condition of supervision.” Id. § 7B1.1(a)(3). The applicable Guidelines
range for Lopez’s Grade C violation was 7 to 13 months.


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the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings).

        Although the government does not dispute that the district court committed a clear or

obvious error, the government nevertheless argues that “Lopez fails to show any ‘reasonable

probability’ that the district court’s failure to apply the correct advisory Sentencing Guidelines

range affected the outcome of the proceedings.” Appellee Br. 10 (quoting Marcus, 560 U.S. at

262).   We disagree.      “In most cases a defendant who has shown that the district court

mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a

reasonable probability of a different outcome.” Molina-Martinez v. United States, 136 S. Ct.

1338, 1346 (2016); see also id. at 1345–46 (“A district court that ‘improperly calculates’ a

defendant’s Guidelines range . . . has committed a ‘significant procedural error.’” (quoting Gall

v. United States, 552 U.S. 38, 51 (2007) (brackets omitted)). Here, the district court applied the

“incorrect, higher Guidelines range” by first identifying the applicable Guidelines range as 18 to

24 months “since this is a Grade B violation,” J.A. 16, before then describing the sentence

imposed with reference to the Guidelines, announcing that, “the Court will not impose a

guideline sentence, but will sentence the defendant, Jose Lopez, to the custody of the Bureau of

Prisons and the Attorney General for a period of ten months,” id. at 23. By observing that it

would not impose a “guideline sentence,” the district court seems to have believed that ten

months was a below-Guidelines sentence, when in fact the ten-month sentence was well within

the correct Guidelines range of 7 to 13 months. See United States v. Fagans, 406 F.3d 138, 141

(2d Cir. 2005) (holding that “an incorrect calculation of the applicable Guidelines range will taint

not only a Guidelines sentence, if one is imposed, but also a non-Guidelines sentence, which may

have been explicitly selected with what was thought to be the applicable Guidelines range as a



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frame of reference”); see also United States v. Dorvee, 616 F.3d 174, 181–82 (2d Cir. 2010)

(observing that the Guidelines range “serves as the district court’s ‘starting point’ in selecting a

sentence” and that the court’s “miscalculation of the Guidelines sentencing range carried serious

consequences for the defendant”). Based on the record before us, we cannot discern whether

the district court would have reached the same conclusion had it known that it was applying the

wrong Guidelines range of 18 to 24 months. See Molina-Martinez, 136 S. Ct. at 1347 (“Where

. . . the record is silent as to what the district court might have done had it considered the correct

Guidelines range, the court’s reliance on an incorrect range in most instances will suffice to show

an effect on the defendant’s substantial rights.”).   We therefore conclude that the district court’s

Guidelines miscalculation was plain error and remand is warranted. See, e.g., United States v.

Bennett, 839 F.3d 153, 163 (2d Cir. 2016) (finding plain error “even though the [sentencing

court] asserted it was ‘not moved by’ the Guidelines” because the court referenced the Guideline

range multiple times “in framing its choice of a seven-year below-Guidelines sentence”).

       On remand, the district court shall advise whether, starting with the correct Guidelines

range of 7 to 13 months, it would have imposed the same sentence. If the district court would

have imposed a different sentence, it shall resentence Lopez accordingly. Molina-Martinez,

136 S. Ct. at 1348 (approving use of “mechanisms short of a full remand” and citing with

approval United States v. Currie, 739 F.3d 960, 967 (7th Cir. 2014) (ordering “limited remand so

that the district judge [could] consider, and state on the record, whether she would have imposed

the same sentence . . . knowing that [the defendant] was subject to a five-year rather than a

ten-year statutory minimum term of imprisonment”)); cf. United States v. Crosby, 397 F.3d 103,

120 (2d Cir. 2005) (“[W]ithout requiring alteration of Crosby’s sentence, we will remand the

case to the District Court so that [it] may consider, based on the circumstances at the time of the



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original sentence, whether to resentence, after considering the currently applicable statutory

requirements as explicated in Booker/Fanfan and this opinion.”).

                                        *      *      *

       Having identified a procedural error warranting remand, we do not reach Lopez’s

challenge to the substantive reasonableness of his sentence. See Cavera, 550 F.3d at 190.

Accordingly, we REMAND this case for further proceedings consistent with this order.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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