Friday, August 4th, 2023

De novo resentencing required after district court imposed a supervised-release term, following revocation, that exceeded the statutory maximum

In United States v. Sire Gaye, 2d Cir. No. 22-251-cr (August 4, 2023), the panel (Judges Park, Nardini, and Nathan) issued a per curiam opinion vacating the district court’s revocation sentence and remanded for de novo resentencing. Although only the supervised-release portion of the revocation sentence was unlawful – the five-year term exceeded the statutory maximum – the Court decided that, instead of simply lowering that term to the true maximum (18 months) and leaving alone the imprisonment portion of the sentence (three years’ imprisonment) – as the Government wanted — the district court should decide in the first instance how to apportion the imprisonment and supervised release portions of its revocation sentence on remand (as Gaye desired).

Here’s the gist. Gaye pleaded guilty to bank fraud in 2018 and was sentenced to two months’ imprisonment followed by five years of supervised release – the statutory maximum. The court also ordered him to pay $16,900 in restitution.

Gaye first violated SR in 2019 by giving a false name to police on several occasions. The court revoked supervision and sentenced him to six months’ imprisonment followed by four years of supervised release.

Gaye violated supervised release again in 2021 – the sentence imposed in this proceeding is the subject of this appeal. The district court found that he violated supervision by not paying restitution, by possessing a loaded gun, and by menacing someone. The court again revoked and sentenced Gaye to three years in prison, followed by five years of supervised release.

In so doing, the court said that Gaye has “shown himself to be absolutely incorrigible.” It also said that it imposed the supervised-release term because it wanted to “keep[] Gaye under the supervision of the court until he paid restitution.” Finally, the court noted that “no sentence less than the statutory maximum would be sufficient to take care of this problem.” Op. 8.


On appeal, both parties agree that the new five-year term of supervised release is unlawful – and met the  plain-error standard – because it exceeds the statutory maximum. Section 3583(h) of Title 18 states that when a district court imposes a new term of supervision upon revocation, “[t]he length of such a term . . . shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” (Emphasis added). And the Circuit had previously held that the new term of supervision “must be reduced by the aggregate length of all terms of imprisonment imposed following” prior revocations. United States v. Rodriguez, 775 F.3d 553, 534 (2d Cir. 2014). Here, that total is six months (imposed upon the first revocation) plus 36 months (imposed upon this revocation), or 42 months.

The maximum term of supervision “for the offense that resulted in the original term of supervised release” – bank fraud – is five years, or 60 months. Thus, the maximum term of supervised release that the district court could have imposed at the second revocation, including the 36-month prison sentence imposed at this proceeding, was 60 months minus 42 months, or 18 months. Op. 10.

The Government thus asked the Court for a limited remand “with the direction that the district court reduce Gaye’s term of supervised release to a term of eighteen months.” Op. 11.

Gaye disagreed and argued that “a remand for de novo resentencing is required because it is not clear how the district court would have allocated the terms of imprisonment and supervised release had it understood the bounds set by § 3583(h).” Op 11.

The Court agreed with Gaye.

Although the “default rule favors a limited remand when we overturn a sentence without vacating an underlying conviction,” the Court explained, de novo resentencing is required “where the reversal of a sentence undoes the entire knot of calculation.” Op. 12. Here, the Court concluded that “we cannot say with certainty whether pulling at the thread of supervised release unravels the entire knot of sentencing.” Thus, while the district court announced that “no sentence less than the statutory maximum would be sufficient” under the circumstances, “the record does not reflect whether that statement referred specifically to the statutory maximum term of imprisonment or the statutory maximum term of supervised release.” Op. 13. But citing other parts of the sentencing transcript, the Circuit found that “it was clear that the district court sensibly wanted to order both the longest possible sentence and the longest possible period of supervised release.” Id.

Yet “that choice was a zero-sum affair”: “For every month above an eighteen-month term of supervised release,” the Court explained, “the [district] court would have needed to shave a month off the three-year prison term.” Op. 14. And because “we cannot say with confidence how the district court would have resolved this trade-off,” the Court concluded that “the sentencing calculation is best left to the informed discretion of the district court, so that it may decide in the first instance how to strike the right balance.” Id.

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