     14-1728-cr (L)
     United States v. Wallace

                                  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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 22nd day of June, two thousand fifteen.
 4
 5   PRESENT:
 6              CHESTER J. STRAUB,
 7              BARRINGTON D. PARKER,
 8              SUSAN L. CARNEY,
 9                                 Circuit Judges.
10   __________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                               Appellee,
15
16                               v.                                                Nos. 14-1728-cr (L),
17                                                                                 14-1980-cr (Con)
18   JERKENO WALLACE, AKA UPTOWN, AND
19   NEGUS THOMAS, AKA BROWN EYES, AKA B.E.,
20
21                               Defendants-Appellants,
22
23   KELVIN COLEMAN, KIMBERLY CRUZE, LAVAR
24   JACKSON, AKA SMOKEY, PETER PITTER, ENRIQUE
25   STEWART, KAVOHN TAYLOR, AKA OX, KUWAN
26   WALLACE, AKA KILLER Q, SHAKON WALLACE,
27   AKA SHOCK, AARON WOOD,
28
29                               Defendants.*
     *   The Clerk of Court is respectfully directed to amend the official caption to conform with the above.
 1   _________________________________________
 2
 3   FOR APPELLEE:                                        MICHAEL J. GUSTAFSON, Assistant United
 4                                                        States Attorney (Marc H. Silverman,
 5                                                        Assistant United States Attorney, on the
 6                                                        brief), for Deirdre M. Daly, United States
 7                                                        Attorney for the District of Connecticut,
 8                                                        New Haven, CT.
 9
10   FOR DEFENDANT-APPELLANT
11   WALLACE:                                             RICHARD S. CRAMER, ESQ., Hartford, CT.
12
13   FOR DEFENDANT-APPELLANT
14   THOMAS:                                              VIVIAN SHEVITZ, ESQ., South Salem, NY.
15
16          Appeal from orders of the United States District Court for the District of
17   Connecticut (Thompson, J.).

18          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
19   ADJUDGED, AND DECREED that the causes are REMANDED for further
20   proceedings consistent with this order.

21          Defendants-Appellants Jerkeno Wallace and Negus Thomas challenge as procedurally
22   and substantively unreasonable the District Court’s May 14, 2014 denials of their requests to
23   modify or reduce their sentences under 18 U.S.C. § 3582. We assume the parties’ familiarity
24   with the underlying facts and the procedural history of the case, to which we refer only as
25   necessary to explain our decision to remand to the District Court in accordance with the
26   procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).

27          On May 13, 2003, after a jury trial, Wallace and Thomas were convicted of six counts
28   and seven counts, respectively, arising from their roles in drug trafficking and a drive-by
29   murder. On December 12, 2003, Judge Thompson sentenced Wallace and Thomas each to
30   an effective term of life imprisonment (principally for the drug trafficking conspiracy and the
31   drive-by murder convictions) and a consecutive term of ten years’ imprisonment (for
32   convictions for related use of a firearm). Wallace and Thomas appealed their convictions
33   and sentences on numerous grounds.
      
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 1          Except for a limited remand not relevant here, our Court affirmed the convictions.
 2   At the same time, we ruled that because Wallace and Thomas were sentenced under a
 3   mandatory-guideline regime that had since been rejected in United States v. Booker, 543 U.S.
 4   220 (2005), we were compelled to remand their causes to the District Court for further
 5   proceedings in conformity with the process laid out in United States v. Crosby, 397 F.3d 103
 6   (2d Cir. 2005). See United States v. Wallace, 447 F.3d 184, 185 (2d Cir. 2006); United States v.
 7   Wallace, 178 F. App’x 76, 81 (2d Cir. 2006). Our Crosby process calls for remand to the
 8   district court “not for the purpose of a required resentencing, but only for the more limited
 9   purpose of permitting the sentencing judge to determine whether to resentence, now fully
10   informed of the new sentencing regime, and if so, to resentence.” Crosby, 397 F.3d at 117
11   (emphasis in original). Crosby thus demands plenary resentencing only if a district court first
12   determines that it would have imposed a “nontrivially different sentence” under the Booker
13   regime. Id. at 118.

14          Eight years after our Crosby remand in their cases, the District Court denied
15   defendants’ requests for resentencing and left untouched the sentences it originally
16   imposed.1 Adhering to our Crosby protocol, the District Court first “obtain[ed] the views of
17   counsel” to determine whether to resentence “based on the circumstances at the time of the
18   original sentence.” Id. at 120. After considering defendants’ submissions, the District Court
19   concluded that it would not have imposed a nontrivially different sentence as to either
20   defendant had it understood the Guidelines to be advisory when first imposing sentences. It
21   stated several grounds in support of its decision. These included that it would not have
22   exercised its discretion to depart downward from the Guidelines when it imposed the
23   original sentences and, as discussed in more detail below, that nothing it had learned about
24   any “positive changes” the defendants had undergone since the time of the original
25   sentencing proceedings had caused it to change its mind about the need to impose a life

     1
       We are troubled that Wallace and Thomas had to wait so long for the District Court to decide their
     requests for resentencing and to complete the Crosby remand process. Defendants identify no
     meaningful prejudice resulting from the delay, however, and the lapse of time, while certainly
     regrettable because of the prolonged uncertainty that it caused, does not affect our analysis of the
     legal issues bearing on this appeal.
      
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 1   sentence on defendants in order to protect society and deter others from similarly violent
 2   acts. Order: The Request for Post-Booker Resentencing as to Jerkeno Wallace [ECF No.
 3   657], at *3-*5, United States v. Thomas, No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014);
 4   Order: The Request for Post-Booker Resentencing as to Negus Thomas [ECF No. 658], at
 5   *3-*5, United States v. Thomas, No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014).

 6          On appeal, Wallace and Thomas argue that the District Court erred in commenting
 7   on the absence of any demonstrations of subsequent remorse and lack of post-sentence
 8   rehabilitation—comments that the District Court made without having solicited relevant
 9   submissions from them. Rather, they assert, they should have been permitted to submit
10   “updates” to the court before the court performed its analysis.

11          A district court’s “threshold determination” under Crosby, however, is whether—
12   based on the circumstances as they were at the time of the original sentence—it would have
13   imposed a nontrivially different sentence under the post-Booker regime such that a plenary
14   resentencing is warranted. Crosby, 397 F.3d at 119-20. We have repeatedly directed district
15   courts not to consider evidence of post-conviction rehabilitation at the first step of a Crosby
16   remand. See United States v. Ferrell, 485 F.3d 687, 688 (2d Cir. 2007). Rather, “[i]f the district
17   court finds it would not have imposed a materially different sentence, that is the end of the
18   matter.” Id.

19          In view of the limited scope of Crosby’s mandate, however, we are concerned by
20   language in the District Court’s Crosby orders tending to suggest that it may have
21   impermissibly considered post-sentence remorse and rehabilitation, or a perceived lack
22   thereof, in determining that full resentencing was not required. In particular, although the
23   court wrote in its decisions as to each defendant that it limited its consideration of “anything
24   it ha[d] learned about the defendant[s] since the time of the original sentencing” to that
25   permissible “[w]ithin the structure of the Crosby remand,” it concluded:
26          [A]lthough in some cases defendants who have had time for reflection
27          undergo positive changes, the court has received no submission that
28          persuades it that such a possibility exists here. Consequently, the court
29          concludes that defendant’s sentence would not have differed at all
      
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 1          from that imposed, much less differed in a non-trivial manner and that
 2          a hearing is not required and would not be helpful.
 3
 4   Order: The Request for Post-Booker Resentencing as to Jerkeno Wallace [ECF No. 657], at
 5   *4-*5, United States v. Thomas, No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014); Order: The
 6   Request for Post-Booker Resentencing as to Negus Thomas [ECF No. 658], at *4-*5, United
 7   States v. Thomas, No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014). On this record,
 8   therefore, we cannot be confident that the District Court’s first-stage Crosby decision was not
 9   improperly informed by a perceived lack of post-sentencing remorse or rehabilitation. 2

10          Accordingly, we remand the causes in accordance with the procedures set forth in
11   United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), with directions to the District Court
12   that it issue orders clarifying whether, without considering the absence of evidence of post-
13   sentence remorse and rehabilitation, it would have reached the same decisions not to
14   resentence defendants. Within fourteen days of the entry of the District Court’s responsive
15   orders, any party to those proceedings may restore the causes to this panel by giving notice
16   of a renewed appeal to the Clerk of Court.

17                                                  * * *

18          The causes are hereby REMANDED to the District Court for further proceedings
19   consistent with this opinion.

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




     2
      Defendants’ reliance on Pepper v. United States, 131 S. Ct. 1229 (2011), is unavailing. In Pepper, the
     Supreme Court held only that when a defendant’s sentence has been set aside on appeal, a district
     court at resentencing may consider evidence of post-sentencing rehabilitation and that such evidence
     may support a downward variance from the Sentencing Guidelines. See id. at 1236. The Pepper
     Court expressly excluded from the scope of its holding those “limited remands by the Courts of
     Appeals” of the type contemplated in Crosby. See id. at 1249 n.17; see also United States v. Bernardo
     Sanchez, 569 F.3d 995, 1000 (9th Cir. 2009).
      
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