United States v. Armstrong ( 2018 )

18-368-cr
United States v. Armstrong
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 17th day of May, two thousand eighteen.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
Circuit Judges,
LEWIS A. KAPLAN,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. No. 18-368-cr
DEREK ARMSTRONG,
Defendant-Appellant.
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APPEARING FOR APPELLANT: RICHARD A. FINKEL, Richard A. Finkel,
Esq., & Associates, PLLC, New York,
New York.
APPEARING FOR APPELLEE: ALICIA N. WASHINGTON, Assistant United
States Attorney (Emily Berger, Assistant United
States Attorney, on the brief), for Richard P.
Donoghue, United States Attorney for the
*
Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
Eastern District of New York, Brooklyn,
New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Sterling Johnson, Jr., Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on February 8, 2018, is VACATED and the
case REMANDED.
Defendant Derek Armstrong, who was sentenced in 2015 to three years’ probation
for filing false corporate tax returns, see 26 U.S.C. § 7206, here appeals from a
three-month prison sentence imposed for violating probation by failing to report for
random drug testing. Armstrong contends that his sentence is procedurally
unreasonable because it is based on an erroneous fact asserted by the government at
sentencing. Our reasonableness review of sentences, including those imposed for
probation violations, see United States v. Goffi, 446 F.3d 319, 320–21 (2d Cir. 2006); see
also United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008), amounts to “a
particularly deferential form of abuse-of-discretion review,” United States v. Cavera, 550
F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc). Applying that standard here, we assume
the parties’ familiarity with the facts and record of prior proceedings, which we reference
only as necessary to explain our decision to vacate the sentence and remand.
1. Procedural Challenge
A sentence is procedurally unreasonable if it is “based on clearly erroneous facts.”
United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks
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omitted); see United States v. Juwa, 508 F.3d 694, 700 (2d Cir. 2007) (recognizing
defendant’s “due process right to be sentenced based on accurate information”). The
government here acknowledges that, at sentencing, it erred in stating that Armstrong had
not made any of the back-tax payments ordered by the district court. By the time of
Armstrong’s probation violation sentencing, he had made at least 14 restitution payments
to the IRS, totaling some $2,000.1 Moreover, because the district court denied defense
counsel’s request to “reply” to the government’s “misrepresentation,” Gov’t App’x 163,
the record was not corrected before the district court pronounced Armstrong’s sentence.
In urging this court to uphold the challenged sentence despite this factual
misrepresentation, the government argues that its erroneous statement did not
significantly affect the district court’s chosen sentence. We cannot confidently reach
that conclusion. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (recognizing
where “record indicates clearly that the district court would have imposed the same
sentence in any event,” any procedural error “may be deemed harmless” (internal
quotation marks omitted)).
A sentencing judge is required to “state in open court the reasons for its imposition
of [a] particular sentence.” 18 U.S.C. § 3553(c); see United States v. Chu, 714 F.3d at
1
To the extent the government now asserts that Armstrong had an obligation to pay back
taxes distinct from his obligation to pay $121,660 in restitution, Appellee Br. at 15 n.4,
the assertion is at odds with its representation to the district court that the “back taxes”
Armstrong failed to pay were “restitution owed to the IRS,” in the amount of $121,660,
which “ha[d] [not] been received by the IRS,” Gov’t App’x 160. We need not address
the matter further because, in any event, the government’s explicit statement at
sentencing that Armstrong had failed to pay any “restitution owed to the IRS,” id., is
clearly erroneous in light of his having in fact made, as the government now
acknowledges, more than a dozen payments toward such restitution.
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746 (stating that district court commits procedural error when it “fails adequately to
explain the chosen sentence” (internal quotation marks omitted)). While “we do not
require district courts to engage in the utterance of robotic incantations when imposing
sentences in order to assure us that they have weighed in an appropriate manner the
various section 3553(a) factors,” United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007)
(internal quotation marks omitted), a district court’s statement of reasons must at least be
“adequate” to permit “meaningful appellate review,” United States v. Cavera, 550 F.3d at
193 (internal quotation marks omitted).
Here, the district court offered no explanation for the challenged three-month
sentence, beyond stating that it had “heard [defense counsel’s] argument” and “heard the
Government’s argument.” Gov’t App’x 163. On this record, we cannot discern
whether, or to what degree, the district court relied on the government’s erroneous
statement regarding a complete failure of restitution payments in imposing the challenged
sentence. 2 Accordingly, we vacate the challenged judgment and remand for
resentencing both to ensure that any sentence imposed is not influenced by an erroneous
fact and to give the district court an opportunity to clarify the reasons for the particular
sentence imposed. See United States v. Juwa, 508 F.3d at 701–02 (remanding for
resentencing and for district court “to make clear the basis upon which the sentence rests”
2
Defense counsel’s subjective impression that the district judge appeared “disturbed and
distressed” by the government’s non-payment assertion, Appellant Br. at 18 (internal
quotation marks omitted), may or may not indicate that the error informed the sentence.
The same conclusion obtains as to the district court’s request that the government clarify
whether its “back taxes” assertion referenced “restitution owed to the IRS.” Gov’t
App’x 160.
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where “it [wa]s unclear from the record whether the district court” based its sentence on
fact not properly established).
2. Reassignment
In the event of remand, Armstrong urges that his case be reassigned to a different
judge for resentencing. “Remanding a case to a different judge is a serious request
rarely made and rarely granted.” United States v. Singh, 877 F.3d 107, 122 (2d Cir.
2017) (internal quotation marks omitted). We will reassign a case “only in unusual
circumstances,” id. (internal quotation marks omitted), and, considering the factors set
forth in United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977), we identify no grounds for
such extraordinary action here. Contrary to Armstrong’s argument that remand is
warranted because of “the firmness of the judge’s earlier-expressed views,” id. at 10, the
record shows that the district judge simply expressed no view here regarding the
government’s erroneous factual statement.
3. Conclusion
We have considered the parties’ other arguments and conclude that they are
without merit. Accordingly, we VACATE the sentence and REMAND to the district
court for resentencing.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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