Friday, February 9th, 2018

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion of why the sentence is reversible under plain error review. The summary order in United States v. Kalaba, No. 17-328 (Katzmann, Pooler, Droney) (appeal from Preska, J., SDNY), is available here.

While on supervised release, Mr. Kalaba was arrested and indicted for several counts relating to a narcotics distribution conspiracy. He was sentenced to 84 months’ imprisonment after pleading guilty to one count and being convicted of the others at trial. While awaiting trial, the Probation Office submitted a report charging four violations of supervised release. Two violations were established by the narcotics convictions, and Mr. Kalaba admitted the other two violations (failure to notify Probation of a change of residence and employment, and traveling without permission). The district court sentenced Mr. Kalaba to the statutory maximum of 24 months’ imprisonment for the supervised release violations, above the Guidelines range of 15-21 months, to run consecutively to his sentence for the narcotics offenses.  The district judge provided no written statement for the sentence, and at the sentencing hearing provided no specific reasons for imposing an above-Guidelines sentence.

Unsurprisingly, the panel held that “the district court did not meet its procedural obligations in imposing an above-Guidelines sentence,” and that the error was plain. Slip op. at 5. The panel also concluded that the other prongs of plain error review had been met. First, the error “affected substantial rights” by depriving the defendant of the oral and written statement of reasons required under 18 U.S.C. § 3553(c). This statement, the panel observed, makes a defendant “‘better able effectively to pursue an appeal asserting that the sentence is unreasonable,'” and makes the appellate court “‘better able to hear and determine the appeal effectively.'”  Slip op. at 6 (quoting United States v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005)). Second, because an insufficiently explained sentence “erodes public trust in the court and its criminal proceedings,” the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id. at 7 (citing United States v. Alcantara, 396 F.3d 189, 206 (2d Cir. 2005)).

This plain error analysis easily extends to any sentence that the district court fails to explain orally or in a written statement. The panel took care to distinguish United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008), where the district court neglected to provide a written statement of reasons for its sentencing decision but gave specific reasons at the sentencing hearing.  For any above-Guidelines sentence where no such reasons are provided, however, the logic of Kalaba seems to require reversal under plain error review.



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