     14-3130-cr
     United States v. Persad

                                    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 the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   17th day of June, two thousand fifteen.
 4
 5   PRESENT:         GUIDO CALABRESI,
 6                    CHESTER J. STRAUB,
 7                    DEBRA ANN LIVINGSTON,
 8
 9                           Circuit Judges.
10   ____________________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                    Appellee,
15
16                             v.                                        No. 14-3130-cr
17
18   RANDY S. PERSAD,
19
20               Defendant-Appellant.
21   ____________________________________________________
22
23   FOR APPELLEE:                         JEFFREY C. COFFMAN and RAJIT S. DOSANJH, Assistant
24                                         United States Attorneys, for Richard S. Hartunian, United
25                                         States Attorney for the Northern District of New York,
26                                         Syracuse, NY.
27
28   FOR APPELLANT:                MOLLY CORBETT, for Lisa Peebles, Federal Public
29                                 Defender, Albany, NY.
30   _____________________________________________________
31
 1             Appeal from the United States District Court for the Northern District of New York

 2   (Sharpe, J.).

 3             UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

 4   ADJUDGED, AND DECREED that the matter is REMANDED to the district court for further

 5   proceedings, and the motion to supplement the appellate record and for judicial notice is

 6   DENIED.

 7             Defendant-Appellant Randy S. Persad (“Persad”) appeals the August 4, 2014 judgment of

 8   the district court sentencing him principally to 48 months’ imprisonment, consecutive to the

 9   indeterminate Vermont state sentence which Persad was then serving. Persad also moves to

10   supplement the record on appeal with certain documents, including letters from Vermont

11   corrections officials explaining how federal and state sentences interact in the Vermont

12   corrections system. Persad argues primarily that the district court did not intend the federal

13   sentence to have the effect of extending Persad’s state sentence to the maximum term of fourteen

14   years, and that the letters from Vermont corrections officials demonstrate that the imposition of a

15   consecutive federal term of imprisonment will have that unintended effect. We assume the

16   parties’ familiarity with the underlying facts, the procedural history, and the issues presented for

17   review.

18             We believe that Persad is correct in stating that the district court did not intend its federal

19   sentence to extend the term of Persad’s Vermont sentence. At the sentencing hearing, defense

20   counsel told the court that, under Vermont correctional practices, imposition of a consecutive

21   federal sentence would require Persad to serve the fourteen-year maximum term of his five-to-

22   fourteen-year state sentence. The district court replied that it had “no intentions that Mr. Persad,

23   based upon his conduct, should serve twenty years . . . rounding up,” but that it would not “take

24   Mr. Persad’s word about the way in which the Vermont sentence works.” App. 72-73. The
                                                         2
 1   district court explained further that it “would be happy to reconsider the sentence . . . imposed,”

 2   “[i]f somebody establishe[d] that” the Vermont corrections system works in the way described.

 3   Id. at 73. Defense counsel has now procured letters from Vermont corrections officials that

 4   purport to establish just that, and Persad has filed a motion to supplement the record on appeal

 5   with these letters. The government, however, disputes that these letters say what Persad claims,

 6   and argues that Vermont statutes and regulations point to the conclusion that Persad’s federal

 7   sentence will have no effect on the duration of his Vermont prison term.

 8           It would not be appropriate for us to grant Persad’s motion to supplement the record with

 9   these letters, see Fed. R. App. P. 10(e)(2) (record may be supplemented only with materials

10   “omitted from . . . the record by error or accident”), and neither would it be proper for us to take

11   judicial notice of their contents, see Pina v. Henderson, 752 F.2d 47, 50 (2d Cir. 1985) (“A court

12   should not” take judicial notice of a fact “that is an essential part of a party’s case unless the fact

13   is clearly beyond dispute.”). We therefore deny Persad’s motion to supplement the record and to

14   take judicial notice.

15           We express no opinion regarding the accuracy of the letters’ statements of Vermont

16   corrections practices; the effect of Persad’s consecutive federal sentence on his Vermont term of

17   imprisonment is a question that we decline to consider in the first instance, and which may

18   require further fact-finding. We therefore remand in accordance with the procedures of United

19   States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), for the district court to address the disputed

20   issue of Vermont law and practice in the first instance, and to conduct any further fact-finding

21   that may be required. The district court may also conduct such further sentencing proceedings as

22   it deems appropriate.

23           For the reasons stated above, we DENY Persad’s motion to supplement the record and

24   REMAND the case for further proceedings consistent with this order. Upon the conclusion of
                                                       3
1   the proceedings before the district court, either party may restore jurisdiction to this Court by

2   filing with the Clerk within fourteen days of the district court decision a letter (along with a copy

3   of the relevant order or transcript) advising the Clerk that jurisdiction should be restored. In the

4   interest of judicial economy, the renewed appeal will be assigned to this panel.

5

6                                                         FOR THE COURT:
7                                                         Catherine O’Hagan Wolfe, Clerk




                                                     4
