     13-2147
     United States v. Smith

                          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 19th day of June, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                REENA RAGGI,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                         Appellee,
14
15                    -v.-                                               13-2147
16
17       BRIAN AVERY SMITH,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        HERBERT L. GREENMAN, Lipsitz
22                                             Green Scime Cambria LLP,
23                                             Buffalo, New York.
24
25       FOR APPELLEE:                         MONICA RICHARDS (with Joseph J.
26                                             Karaszewski on the brief) for
27                                             William J. Hochul, Jr., United
28                                             States Attorney for the Western
29                                             District of New York, Buffalo,
30                                             New York.
 1
 2        Appeal from a judgment of the United States District
 3   Court for the Western District of New York (Arcara, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   REMANDED.
 8
 9        Brian Avery Smith challenges the reasonableness of the
10   sentence imposed, after a plea agreement entered for
11   violations of his probation, in the United States District
12   Court for the Western District of New York (Arcara, J.). We
13   assume the parties’ familiarity with the underlying facts,
14   the procedural history, and the issues presented for review.
15
16        By the time of the sentencing hearing on the probation
17   violations, Smith had been incarcerated for 14 months.
18   Smith requested a within-guidelines sentence of between four
19   and ten months. Defense counsel advocated for a guidelines
20   sentence because he hoped that any term of incarceration
21   above that range could be attributed to a future sentence if
22   there was a conviction or guilty plea to other then-pending
23   charges. The government advocated for a sentence at the
24   highest end of the guideline range.
25
26        The record is not clear as to whether the court
27   intended to impose an above-guidelines sentence of time
28   served (14 months) or to impose a sentence within the
29   guidelines range. Compare Sentencing Tr. at 9:3-10, United
30   States v. Smith, No. 11-CR-024 (W.D.N.Y. May 10, 2013)
31   (discussing possibility of consecutive sentence totaling 13
32   months), with id. at 11:21-22 (“I have sentenced to time
33   served, which is within the guidelines range.”). And, if
34   the court intended an above-guidelines sentence achieved
35   through consecutive terms, an in-court statement of reasons
36   was required. See 18 U.S.C. § 3553(c)(2); United States v.
37   Lewis, 424 F.3d 239, 245 (2d Cir. 2005).
38
39        We therefore remand in accordance with the procedure
40   set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d
41   Cir. 1994), for the district court to clarify whether it
42   intended to impose an above-guidelines sentence of
43   consecutive terms totaling 14 months, and if so, for a
44   statement of reasons pursuant to 18 U.S.C. § 3553(c)(2).
45   The government does not object to the district court holding
46   a hearing for this purpose.
47

                                  2
1        For the foregoing reasons, we hereby REMAND the
2   judgment of the district court for further proceedings
3   consistent with this order.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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