16-3950-cr
United States v. Cain

                     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
ASUMMARY 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 17th day of May, two thousand eighteen.

PRESENT: GERARD E. LYNCH,
           CHRISTOPHER F. DRONEY,
                    Circuit Judges,
           WILLIAM K. SESSIONS III,
                     District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                        Appellee,

                v.                                                                 16-3950-cr

CHRIS CAIN,

                        Defendant-Appellant,

DAVID CAIN, JR., JAMIE SOHA, PATRICK ACKROYD,


*
 Judge William K. Sessions III, United States District Court for the District of Vermont, sitting by
designation.

                                                     1
                 Defendants.**
_____________________________________

FOR DEFENDANT-APPELLANT:                             PETER F. LANGROCK, Langrock Sperry & Wool
                                                     LLP, Middlebury, VT.

FOR APPELLEE:                                        JOSEPH J. KARASZEWSKI, for James P.
                                                     Kennedy, Jr., Acting United States Attorney
                                                     for the Western District of New York, Buffalo,
                                                     NY.

       Appeal from a November 16, 2016, amended judgment of the United States District
Court for the Western District of New York (Arcara, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Chris Cain appeals from an amended judgment, sentencing
him to an aggregate term of 144 months’ imprisonment and three years’ supervised release.
On appeal, Cain argues that he was deprived of due process because of the district court’s
delay in sentencing him and in assigning him counsel.

     I.    Background

       On May 5, 2006, a federal grand jury returned an indictment alleging that Cain,
along with other defendants, violated the Racketeering Influenced and Corrupt
Organizations Act (“RICO”) and committed other federal crimes. On December 7, 2007, a
jury returned guilty verdicts against Cain for racketeering, racketeering conspiracy, mail
fraud, use of fire to commit a felony, and conspiracy to manufacture marijuana. The district
court sentenced Cain to 355 months’ imprisonment. The court sentenced Cain to 60
months’ imprisonment for the marijuana conviction, 235 months’ imprisonment each for
the racketeering and mail fraud convictions, to be served concurrently with each other and
the marijuana conviction, and 120 months’ imprisonment for the arson conviction, to be
served consecutively.

       On appeal, we vacated his two RICO convictions due to an erroneous jury
instruction. United States v. Cain, 671 F.3d 271, 28991 (2d Cir. 2012). We then remanded

**
     The Clerk of Court is directed to amend the caption as set forth above.

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“for a new trial on the RICO charges, if the government chooses to pursue them, and/or
resentencing on the remaining counts.” Id. at 303.

        This Court issued its decision on January 31, 2012. However, the mandate did not
issue until December 26, 2012.1 On January 11, 2013, shortly after the mandate issued,
Cain filed a letter with the district court requesting the appointment of counsel. 2 The
district court never responded to that request. On March 5, 2014—over one year after
Cain’s initial request for counsel, and nearly 15 months since the mandate issuedCain
filed a pro se motion “for retrial on the RICO counts and/or resentencing on the remaining
counts.” App. 26. In his motion, Cain reminded the district court that he had asked the court
to appoint him an attorney 14 months earlier. The government did not respond to Cain’s
motion, and the court did not address it.

         Cain finally obtained counsel on August 11, 2014, when attorney Angelo Musitano
filed a notice of appearance as retained counsel. He obtained counsel by borrowing money
from a friend. Cain’s attorney then filed a motion for bail and to dismiss Cain’s remaining
charges on speedy trial grounds. The government responded to this motion on September
23, 2014, by seeking to dismiss the racketeering charges that this Court had reversed on
appeal—over 20 months after the mandate issued, and nearly three years after the Court
first issued its decision.

        The district court did not act on the pending motions for another eight months. Then,
in May 2015, Cain filed another request to appoint counsel, explaining that Musitano could
no longer practice law in the United States. One month later, and without response from
the district court, Cain filed yet another pro se motion requesting sentencing. In that motion,
Cain also requested that the district court dismiss the racketeering charges, which the
government had moved to dismiss over nine months earlier. Shortly thereafter, the district
court appointed Attorney Barry Covert, who filed a notice of appearance to represent Cain
on June 30, 2015. On July 1, 2015, Cain also filed a pro se petition for a writ of mandamus
with the Second Circuit, asking this Court to direct that the district court proceed to
sentence him.

       The district court finally held a conference in Cain’s case on November 30, 2015.
At that conference, the government acknowledged that the RICO counts “came back from
the Circuit with [instruction that] if the government wanted to retry those cases to do so.

1
  During that time, one of Cain’s co-defendants repeatedly requested extensions to file a petition for
rehearing/rehearing en banc, delaying issuance of the mandate.
2
  Cain explained to the district court that he did not have the funds to pay for the lawyer who had
represented him through his first direct appeal.

                                                     3
[The government] decided not to [and] just sort of let them sit.” App. 96. The court then
scheduled a sentencing hearing for February 8, 2016. Following another motion from the
government, the district court finally dismissed the two RICO counts on December 22,
2015. On January 19, 2016, Cain filed another pro se motion requesting dismissal of all the
remaining counts in the indictment due to the delay in his resentencing. As with his prior
pro se requests for resentencing, the district court and the government did not respond to
that request.

        Shortly before the February 8, 2016, hearing, Covert informed the district court that
he discovered he had a conflict in representing Cain. Accordingly, a week after the
February 8 hearing, the Court assigned Cain new counsel. After a hearing on March 22,
2016, the district court also scheduled oral arguments for Cain’s sentencing for May 18,
2016. Prior to the May 18 hearing, the government moved for a substantial upward
departure based on the conduct underlying Cain’s now vacated RICO convictions. The
district court held the arguments on May 18, 2016, as scheduled, but then waited another
five months to hold a sentencing hearing. In the meantime, Cain filed a second pro se
mandamus petition with this Court in August 2016.3 Cain’s counsel also renewed Cain’s
request for bail that same month.

       The district court finally held Cain’s resentencing hearing on November 9, 2016. At
the hearing, the court concluded that Cain was subject to a Sentencing Guidelines range of
37 to 46 months on the mail fraud and marijuana counts, and a mandatory consecutive 120-
month mandatory minimum on the arson count, yielding a total range of 157 to 166
months. 4 The court rejected the government’s request for an upward departure and
sentenced Cain to 144 months’ months imprisonment—24 months concurrent for the mail
fraud and marijuana counts, and 120 months for the arson count, to be served consecutively
to the other two sentences.5 The district court based this downward departure on Cain’s
“exceptional” rehabilitation in prison. App. 340. Because the district court sentenced Cain
to a sentence nearly equivalent to the time he had already served, Cain was released the
same day that the district court entered its amended judgment (a week after the hearing, on
November 16, 2016).6




3
  This Court denied Cain’s petition after his resentencing hearing in November 2016.
4
  The district court reached this Guidelines range by concluding that Cain was in Criminal History
category IV in part because of the conduct underlying the vacated racketeering convictions.
5
  The district court also imposed a three-year term of supervised release.
6
  Cain was eligible for release prior to the end of the 144 months’ sentence because he had earned credit
towards his sentence due to his good behavior while in prison. See 18 U.S.C. § 3624.

                                                    4
    II.   Cain’s Due Process Claim

        On appeal, Cain seeks to vacate his convictions, arguing that the district court
violated his right to due process by delaying his sentencing.7 This Court applies a two-part
test to determine whether a defendant’s right to due process was violated because of a delay
in sentencing. Specifically, we consider “[1] the reasons for the delay as well as [2] the
prejudice to the accused.” United States v. Ray, 578 F.3d 184, 199 (2d Cir. 2009) (brackets
in original) (citation omitted). Under this test, prejudice is “necessary but not sufficient to
prove a due process violation.” Id. (internal quotation marks omitted). Instead, a defendant
“must show both prejudice and an unjustified reason for the delay.” Id. Even so, these
factors are not “independent prongs of a two-part test,” but rather, “are related factors to
be weighed in light of each other and the surrounding circumstances.” Id. at 199200.

        This Court has also outlined additional considerations for each factor in the two-
part analysis. First, as to the delay factor, we have observed that “while deliberate delay to
hamper the defense weighs heavily against the prosecution, more neutral reasons such as
negligence or overcrowded courts weigh less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must rest with the government.”
Id. at 200 (brackets and internal quotation marks omitted). However, “[e]ven substantial
delays in sentencing do not in all circumstances amount to a due process violation,
especially when a defendant has not requested timely sentencing and is unable to establish
prejudice . . . .” Id. at 202. Second, as to the prejudice factor, we advised in Ray that “absent
extraordinary circumstances,” the prejudice must be “substantial and demonstrable.” Id. at
200. A defendant may demonstrate prejudice if he or she can show that the delay in
sentencing “undermine[s] . . . successful rehabilitation.” Id. at 201. Other forms of
prejudice include prejudice related to the defendant’s ability to present his or her case (i.e.,
in presenting a defense or sentencing submission) and the possibility of losing “the
opportunity to receive a concurrent sentence” or “appeal as of right.” United States v.
Nieves 648 F. App’x 152, 15455 (2d Cir. 2016) (summary order).

       In this case, the government and the district court bear almost complete
responsibility for the five-year delay between this Court’s remand and Cain’s resentencing.
Indeed, both the government and the district court demonstrated a dismaying disregard for
Cain’s right to a timely resentencing. We find it particularly troubling that the district court
ignored Cain’s requests for counsel and did not rule or respond to his requests for

7
  In Betterman v. Montana, 136 S. Ct. 1609, 1617 (2016), the Supreme Court held that the Sixth
Amendment Speedy Trial Clause does not apply to delayed sentencing claims, but indicated that “due
process [still] serves as a backstop against exorbitant delay.”

                                                  5
resentencing. Similarly, the government ignored our decision directing the government to
determine whether to retry Cain on the RICO counts, failed to respond to Cain’s pro se
requests for resentencing, and simply assumed Cain would receive a much longer sentence
than the one the district court ultimately imposed. Further, this case is similar to our recent
decisions in cases from the Western District of New York where we held the government
and district court responsible for excessive delays in criminal cases in the speedy trial
context. See United States v. Tigano, 880 F.3d 602 (2d Cir. 2018) (dismissing indictment
on Sixth Amendment speedy trial grounds); United States v. Pennick, 713 F. App’x 33 (2d
Cir. 2017) (summary order) (affirming dismissal of indictment counts on Sixth
Amendment speedy trial grounds). We strongly emphasize that it is the responsibility of
the district court to act with appropriate dispatch to address cases on remand after an appeal.
The court must not leave a defendant in limbo, uncounseled, uncertain whether he will be
retried, and without any indication of when, if ever, his arguments for a more lenient
sentence after the dismissal of some of the most serious charges against him will be heard.
And when the district court fails in this responsibility, the burden falls upon the government
to remind the court of the unfinished business before it. Because the district court and the
government failed in these duties, we weigh much of the delay in this case heavily against
the government.8

       Nevertheless, we conclude that Cain has not established the prejudice necessary to
establish a constitutional deprivation of his right to due process. Cain was subject to a ten-
year mandatory minimum sentence, which was consecutive to the sentences for the other
two counts of conviction. See 18 U.S.C. § 844(h). Cain’s Sentencing Guideline range was
157166 months, with 120 months of that time mandatory (and mandatorily consecutive)
under 18 U.S.C. § 844(h). The district court downwardly departed from this Guidelines
range, sentencing Cain to 144 months’ imprisonment. Cain argues that, since his eventual
sentence was the effective equivalent of “time served,” he would have been released sooner
had he been sentenced earlier. That argument is speculative, particularly because Cain was
subject to at least 120 months’ imprisonment and his 144-month sentence already
represented a significant downward departure. In addition, Cain has not identified any way
in which the delay hampered his ability to respond to the government’s arguments for an
increase in Cain’s criminal history category based on the conduct underlying the vacated
RICO convictions. Under these circumstances, Cain has not met his heavy burden to
establish “substantial and demonstrable” prejudice. Ray, 578 F.3d at 200.

       Furthermore, in contrast to the defendant in Ray, Cain cannot demonstrate
“substantial and demonstrable” prejudice as to his efforts at rehabilitation. Unlike in Ray,

8
  Small parts of the five-year delay may be attributable to Cain due to problems with his counsel, but
these delays are minor when compared with the court- and government-caused delays.

                                                     6
where we considered it an important factor that the sentence would interrupt the
defendant’s rehabilitation, Cain’s custodial sentence did not interrupt his rehabilitation, and
indeed, his successful rehabilitation efforts formed the basis for reducing his sentence. Id.
at 20102.9 Accordingly, we conclude that Cain has not established the prejudice that is
“necessary” for him to obtain relief. Id. at 199.10

        For reasons stated above, we AFFIRM the judgment of the district court.

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




9
   Cain’s inability to identify a plausible remedy for the violation he claims further highlights the lack of
prejudice to be remedied. Cain principally argues for the complete vacatur of his convictions, a “remedy”
that bears no relation to any prejudice he suffered. Furthermore, that remedy would undo a jury’s verdict
that he was guilty of serious felonies, which was affirmed on appeal, and for which he was ultimately
sentenced to, and served, a substantial term of imprisonment. Cain justifies his proposal solely in terms of
the deterrent effect it might have on future neglect by the government and the district court in other cases,
and makes no attempt to link it to any prejudice Cain could have suffered by the delay in sentencing him.
10
   For similar reasons, we are unpersuaded by Cain’s alternative argument that the district court’s delay in
appointing counsel constituted a Sixth Amendment violation that can be remedied only by “vacatur of the
convictions and dismissal of the indictment with prejudice.” Appellant’s Br. 27.

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