13-3945-cr
United States v. Scott

                              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 June, two thousand fifteen.

Present:         AMALYA L. KEARSE,
                 ROSEMARY S. POOLER,
                 CHRISTOPHER F. DRONEY,
                           Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                                 13-3945-cr

LACEY SCOTT, AKA Collin Watson,

                        Defendant-Appellant.
_____________________________________________________


Appearing for Appellant:        Jesse M. Siegel, Law Office of Jesse M. Siegel, New York, N.Y.

Appearing for Appellee:         Ian P. McGinley, Assistant U.S. Attorney for the Southern District
                                of New York (Michael A. Levy, Assistant U.S. Attorney, Preet
                                Bharara, U.S. Attorney, on the brief), New York, N.Y.


        Appeal from the United States District Court for the Southern District of New York
(Sullivan, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant-Appellant Lacey Scott appeals from the October 9, 2013 judgment of the
District Court for the Southern District of New York (Sullivan, J.) convicting him of possessing
a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and
illegal reentry, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). The district court sentenced Scott
principally to 108 months’ imprisonment. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

        On appeal, Scott challenges his sentence as procedurally unreasonable. He contends that
in determining his criminal history category, the district court failed adequately to explain its
basis for counting his 2005 federal sentences for firearms and drug offenses as separate sentences
under U.S.S.G. § 4A1.2(a)(2) and thereby imposing three additional criminal history points.

        We review a district court’s sentence for reasonableness. Under this “deferential abuse-
of-discretion standard,” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal
quotation marks omitted), a district court commits procedural error where it “makes a mistake in
its Guidelines calculation . . . or rests its sentence on a clearly erroneous finding of fact,” id. at
190. The factual determinations underlying a district court’s Guidelines calculation are reviewed
for clear error. United States v. Conca, 635 F.3d 55, 62 (2d Cir. 2011). With respect to disputed
issues of fact, a “district court must make findings with sufficient clarity to permit meaningful
appellate review.” United States v. Skys, 637 F.3d 146, 152 (2d Cir. 2011).

        Section 4A1.2(a)(2) of the Guidelines provides that where prior sentences “resulted from
offenses contained in the same charging instrument” or “were imposed on the same day” those
sentences are counted as a single sentence unless “imposed for offenses that were separated by an
intervening arrest.” U.S.S.G. § 4A1.2(a)(2). Thus, to treat the sentences imposed in 2005 as
separate sentences for the purpose of determining the number of applicable criminal history
points, the district court was required to find that Scott was arrested for the August 22, 2003
firearms offense prior to committing the September 1, 2004 drug and firearms offenses.

        Here, the district court relied on facts contained in the presentence report and the 2005
charging instrument provided by the government at sentencing in implicitly concluding that an
intervening arrest occurred. Indeed, the questions posed to the parties by the district court make
clear that it understood count one of that instrument “relate[d] to conduct that took place on
August 22nd for which there was an arrest.” While the district court might have been more
expansive in explaining the basis for determining that this arrest satisfied the Section 4A1.2(a)(2)
requirement of an intervening arrest, its ultimate finding was not clearly erroneous. Counsel for
Scott conceded as much at oral argument, and we note that Scott agreed in his plea agreement
that he “was arrested for the offense charged in Count One [on] or about August 22, 2003.” We
decline, therefore, to remand for clarification of the record where, as here, the district court’s
findings were rendered with sufficient clarity to permit meaningful review.




                                                  2
        We have considered the remainder of Scott’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




                                              3
