In United States v. Brown, No. 18-834 (2d Cir. Aug. 16, 2019), the Court of Appeals reversed a 39-year sentence and remanded for resentencing because it was uncertain whether the judge understood his discretion, after the Supreme Court’s decision Dean v. United States, 137 S.Ct. 1170 (2017), to consider the severity of the mandatory consecutive minimum sentences required by §924© in determining the sentence for the predicate offenses. The case involved two robberies and two §924(c)brandishing counts, which, before the First Step Act, required 7 years for the first and 25 years for the second §924(c)count. Defense counsel had asked for one day on the predicate robberies because the mandatory consecutive sentences were so severe. Before Dean, the Second Circuit’s decision in United States v. Chavez, 549 F.3d 119 (2d Cir. 2017)had precluded such consideration. Neither case was mentioned below but the court imposed 84 months for the predicate robberies.
Because the Dean decision was not mentioned anywhere below, the Court of Appeals was uncertain that the judge was aware of his discretion. And even though the defendant on appeal did not specifically argue that the judge misunderstood his discretion – arguing instead that the judge should have imposed minimal sentences on the predicates – the Second Circuit held that this preserved the argument for appeal.
Significantly, the Circuit chose to remand for full resentencing rather than for clarification, in part to “afford Brown the opportunity to argue that he should benefit from section 403(b) of the First Step Act of 2018,” which repealed the required bump-up for the second 924 ©. This case provides authority for seeking plenary resentencing to gain the benefit of the First Step Act.