     16-2616
     United States v. Facen

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of July, two thousand seventeen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               16-2616
16
17       TABARI FACEN,
18                Defendant-Appellant.
19
20       - - - - - - - - - - - - - - - - - - - -X
21
22
23              FOR APPELLANT:                        ROBIN CHRISTINE SMITH, San
24                                                    Rafael, California.
25
26              FOR APPELLEE:                         MONICA J. RICHARDS, for
27                                                    James P. Kennedy, Jr.,
28                                                    Acting United States

                                                  1
 1                                      Attorney for the Western
 2                                      District of New York.
 3
 4       Appeal from a judgment of the United States District

 5   Court for the Western District of New York (Larimer, J.).

 6       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

 7   AND DECREED that the judgment of the district court be

 8   AFFIRMED.

 9       Tabari Facen appeals from the judgment of the United

10   States District Court for the Western District of New York

11   (Larimer, J.) sentencing him to ten years’ imprisonment.      We

12   assume the parties’ familiarity with the underlying facts,

13   the procedural history, and the issues presented for review.

14   We affirm because any delay in giving Facen a copy of his

15   Presentence Report (“PSR”) was harmless error.

16       In 2013, Facen was convicted after a jury trial on

17   various gun and drug counts.   The district court then

18   partially overturned the jury verdict by granting a partial

19   motion for acquittal, and it sentenced Facen to 41 months’

20   imprisonment on the surviving counts of conviction.    On

21   appeal, this Court vacated the district court’s ruling of

22   acquittal and remanded the case for resentencing.    United

23   States v. Facen, 812 F.3d 280, 290 (2d Cir. 2016).    This

24   Court’s decision triggered a mandatory minimum, and Facen

25   was resentenced to ten years’ imprisonment on July 13, 2016.


                                    2
 1       Federal Rule of Criminal Procedure 32(e) requires that

 2   the probation officer “give the presentence report to the

 3   defendant, the defendant's attorney, and an attorney for the

 4   government at least 35 days before sentencing.”    While

 5   Facen’s attorney received the PSR several months before the

 6   July 13, 2016 resentencing, Facen himself only received a

 7   copy of the PSR 30 days before the sentencing date.    Facen

 8   challenges his sentence on the basis of that five-day gap

 9   between the date he was supposed to receive the PSR and the

10   date he actually received it.

11       We see no good reason why–-when the defendant asked and

12   the rule expressly required–-the district court did not

13   adjourn for five days.    However, procedural sentencing

14   mistakes such as this one are subject to harmless error

15   review.   United States v. Jass, 569 F.3d 47, 68 (2d Cir.

16   2009).    Facen’s counsel had the PSR several months before

17   sentencing, Facen himself had the PSR 30 days before

18   sentencing, and the 2016 PSR was virtually identical to the

19   one from 2013.    It is clear that the district court would

20   have sentenced Facen to the same prison term even if he had

21   received the PSR five days earlier, and the error is

22   therefore harmless.    Id.




                                     3
1       For the foregoing reasons, and finding no merit in

2   Facen’s other arguments, we hereby AFFIRM the judgment of

3   the district court.

4
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8




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