11-2010-cr
United States v. Gist

                           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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 29th day of November, two thousand twelve,

Present:    AMALYA L. KEARSE,
            CHESTER J. STRAUB,
            ROSEMARY S. POOLER,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                        -v-                                                11-2010-cr

GAMALE GIST,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellee:       Rajit S. Dosanjh (Ransom P. Reynolds, on the brief), Assistant
                              United States Attorneys, for Richard S. Hartunian, United States
                              Attorney, Northern District of New York, Syracuse, NY

Appearing for Appellant:      Steven Y. Yurowitz, New York, NY

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Suddaby, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in
part and VACATED and REMANDED in part.
        Gamale Gist appeals from the sentence of 262 months imprisonment and 15 years
supervised release imposed by the district court on May 6, 2011. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        In Dorsey v. United States, 132 S. Ct. 2321 (2012), the Supreme Court concluded that the
revised mandatory minimum sentences of the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
§ 2, 124 Stat. 2372 (“FSA”), applied to individuals who had committed their offenses prior to the
passage of the Act but were not sentenced until after the August 3, 2010 enactment date. The
application of Dorsey in this case requires that we vacate Gist’s term of supervised release and
remand to the district court for re-sentencing consistent with the FSA. See United States v.
Highsmith, 688 F.3d 74, 77 (2d Cir. 2012). The government concedes that, had the FSA been
applied, Gist would have been subject to a mandatory minimum supervised release term of eight
years rather than the 10-year minimum stated in the presentence report. Because there is no
unambiguous indication in the record that the district court would have imposed the same 15-
year term of supervised release if it had known the FSA was to be applied retroactively, remand
for re-sentencing as to that aspect of the sentence is required.

        Although Gist urges us to remand for re-sentencing in toto, we decline to do so. “Where
we identify procedural error in a sentence, but the record indicates clearly that ‘the district court
would have imposed the same sentence’ in any event, the error may be deemed harmless,
avoiding the need to vacate the sentence and to remand the case for re-sentencing.” United
States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (quoting United States v. Cavera, 550 F.3d 180,
197 (2d Cir. 2008)). It is clear from the sentencing proceeding that the district court based Gist’s
term of imprisonment on his Career Offender status and not on the mandatory minimum under
the pre-FSA version of 21 U.S.C. § 841(b)(1)(A). Because, even in light of Dorsey, it is clear
the same sentence of imprisonment would have been imposed, the term of imprisonment need
not be vacated.1

       Accordingly, the judgment of the district court with respect to the term of imprisonment
hereby is AFFIRMED and the judgment of the district court with respect to the term of
supervised release hereby is VACATED and the case is REMANDED for re-sentencing in
accordance with this order.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




       1
          To the extent the district court determines that the terms of incarceration and supervised
release are intertwined such that reconsideration of supervised release requires revisiting the
custodial component of Gist’s sentence, on remand the district court should revisit that
component and may—but need not—re-sentence Gist with respect to the term of imprisonment
as well..

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