15-0579-cr
United States v. Ali



                            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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of January, two thousand sixteen.

Present:    ROSEMARY S. POOLER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                       v.                                                  15-0579-cr

SYED OMAIR ALI,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:      Darrell B. Fields, Federal Defenders of New York, New York, NY.

Appearing for Appellee:       Emily Berger and Michael T. Keilty, Assistant United States
                              Attorneys, for Kelly T. Currie, Acting United States Attorney for
                              the Eastern District of New York, Brooklyn, NY.

Appeal from the United States District Court for the Eastern District of New York (Johnson, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is REMANDED.
        Syed Omair Ali appeals from a judgment entered on February 20, 2015 in the United
States District Court for the Eastern District of New York (Johnson, J.), revoking Ali’s term of
supervised release and sentencing him to 24 months’ imprisonment. On appeal, Ali argues that
his sentence is procedurally and substantively unreasonable. We assume the parties’ familiarity
with the underlying facts, procedural history, and specification of issues for review.

        We review a sentence for procedural and substantive reasonableness under a “deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A sentence is
procedurally unreasonable if the district court ‘fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.’” United States v. Aldeen, 792 F.3d 247, 251 (2d Cir. 2015)
(quoting United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)). “Once we have determined
that the sentence is procedurally sound, we then review the substantive reasonableness of the
sentence, reversing only when the trial court’s sentence ‘cannot be located within the range of
permissible decisions.’” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (quoting
United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)).

        Ali argues that his sentence is procedurally unreasonable because the district court failed
to adequately explain the reasons for imposing an above-Guidelines sentence. Because Ali raises
this issue for the first time on appeal, we review for plain error. United States v. Wernick, 691
F.3d 108, 113 (2d Cir. 2012). Under the plain-error standard, we have the discretion to correct an
error that seriously affects the fairness, integrity, or public reputation of judicial proceedings if
there is an “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Johnson v.
United States, 520 U.S. 461, 467 (1997) (alteration in original) (quoting United States v. Olano,
507 U.S. 725, 732 (1993)).

        Under 18 U.S.C. § 3553(c), a sentencing court is statutorily required “at the time of
sentencing” to “state in open court the reasons for its imposition of the particular sentence.” In
addition, where, as here, a district court imposes a sentence outside the Guidelines range, “the
court must also state ‘the specific reason’ for the sentence imposed, in open court as well as in
writing—‘with specificity in a statement of reasons form’ that is part of the judgment.” Aldeen,
792 F.3d at 251-52 (quoting 18 U.S.C § 3553(c)(2)). “The sentencing court’s statement of
reasons must at least explain—in enough detail to allow a reviewing court, the defendant, his or
her counsel, and members of the public to understand—why the considerations used as
justifications for the sentence are sufficiently compelling [] or present to the degree necessary to
support the sentence imposed.” Id. at 252 (alteration in original) (internal quotation marks
omitted).

        “When a district judge deviates from an advisory Guidelines range, it must consider the
‘extent of the deviation and ensure that the justification is sufficiently compelling to support the
degree of the variance.’” Id. (quoting Cavera, 550 F.3d at 189). “Where there is a variance, on
appellate review, ‘we may take the degree of variance into account and consider the extent of a
deviation from the Guidelines . . . . [A] major departure should be supported by a more
significant justification than a minor one.” Id. (alterations in original) (quoting United States v.
Stewart, 590 F.3d 93, 135 (2d Cir. 2009)).


                                                   2
        Although these concepts generally apply as well to sentences for violations of supervised
release, we have recognized “some differences between sentencing for the underlying crime and
sentencing for a violation of supervised release.” Id at 252. “Supervised release is not,
fundamentally, part of the punishment; rather, its focus is rehabilitation.” Id. And “[t]hough the
imposition of an above-Guidelines sentence triggers a ‘higher descriptive obligation,’ we
simultaneously require less rigorous specificity where, as here, a court sentences a defendant for
violation of supervised release.” Id. at 253 (quoting United States v. Cassesse, 685 F.3d 186, 193
(2d Cir. 2012)). “Nonetheless, even in the revocation context, a district court must sufficiently
explain its reasoning so that the parties, the public, and a reviewing court can understand the
justification for the sentence, particularly when there is a material deviation.” Id. at 255.

        In Aldeen, for example, we concluded that the district court committed plain procedural
error by failing to adequately explain the reasoning for its sentence in open court and in a written
statement of reasons. Id. at 253. We were “not persuaded that the district court provided a
sufficiently compelling justification to support” a custodial sentence of 18 months’
imprisonment, when the Guidelines called for only 4 to 10 months’ imprisonment. Id. It was also
necessary for the district court in that case to resolve disputed facts that were the basis for a
previously dismissed criminal charge and explain how those facts affected the court’s sentencing
determination. Id. at 254.

        Here, the district court explained its sentence by noting that before committing the
violation at issue in this case, possession of a forged driver’s license—a crime to which Ali had
pleaded guilty and served a state sentence—Ali had also violated court orders regarding his
travels to Pakistan on two prior occasions. The court explained that it had rejected the parties’
stipulated six-month sentence for the violation in this case because it “felt that it was not
sufficient for this defendant’s behavior, his conduct.” App’x at 64. The court noted that Ali’s
“supervision ha[d] been, at best, poor,” App’x at 64, and the court encapsulated its reasoning by
quoting a song lyric: “[T]he hardheaded always got to feel it to believe it.” App’x at 64.

        The district court’s written statement of reasons, however, was not consistent with its
above-Guidelines sentence of 24 months’ imprisonment. The district court checked a box
indicating that the sentence was “within an advisory policy statement range.” Statement of
Reasons at 2. Further, the court did not complete Part IV(C), which asked for an explanation of
“the facts justifying the sentence outside the advisory policy statement,” although it did elaborate
further by providing “additional facts justifying the sentence in this case.” Statement of Reasons
at 2. Given this ambiguity in the record, it is necessary for us to assure ourselves that the district
court did not in fact think it was imposing a sentence that was “within an advisory policy
statement range.” For that reason, we are remanding the case to the district court so that it can
clarify whether it believed it was imposing a “within range” sentence. If indeed the district court
intended to impose a sentence outside the range, it may wish to provide a more detailed
explanation of why it determined it necessary to impose the statutory maximum when the
Guidelines called for only 3 to 9 months’ imprisonment.

       For the reasons stated above, we remand to the district court for further proceedings as
noted above. In the course of clarifying whether it intended to impose a “within range” sentence


                                                  3
and, if not, in explaining more fully its reasons for a variance, if the district court determines that
it should impose a reduced sentence, then the district court should vacate Ali’s sentence and
resentence him.

       The judgment of the district court hereby is REMANDED for further proceedings
consistent with this decision. The mandate shall issue forthwith.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




                                                   4
