18

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United States v. James

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ).

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 7 th day of May, two thousand nineteen.

PRESENT: BARRINGTON D. PARKER,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

v. 18

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‐ cr (L)

18

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GARY JAMES,

Defendant

‐ Appellant

.

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FOR APPELLEE: TANISHA R. PAYNE, Assistant United

States Attorney (Emily Berger, Assistant

United States Attorney, on the brief ), for

Richard P. Donoghue, United States2 Attorney for the Eastern District of New

York, Brooklyn, New York.

FOR DEFENDANT

‐ APPELLANT: DAVID GORDON, Law Office of David

Gordon, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Johnson, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the case is REMANDED for further proceedings

consistent with this order.

Defendant

‐ appellant Gary James appeals amended judgments entered

April 5, 2018, following his guilty pleas to a two

‐ count superseding information

charging him with conspiring to import cocaine and launder money and a one

‐ count

indictment for failure to appear. The district court sentenced James to a total of 108

months ʹ imprisonment

‐‐ 90 months for the drug

‐ related charges and 18 months for

failing to appear, to run consecutively.

Between October 2009 and July 2010, James ʹ s primary role was to recruit

couriers for one of the leaders of the conspiracy. In total, the district court found James

responsible for the importation of at least 3 kilograms of cocaine, some of the proceeds

of which he helped to launder and send from the United States back to Jamaica. While

on bail with a condition of home confinement, James removed his GPS monitoring

device and absconded, and was not found for over two months. He now appeals the3 procedural and substantive reasonableness of his sentence. We assume the parties ʹ

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

James challenges the procedural reasonableness of his sentence on two

grounds. First, he argues that the district court erred in calculating the applicable

Guidelines range because he is entitled to credit for acceptance of responsibility.

Second, he asserts that the district court failed to state in open court the reasons for the

sentence imposed on the conspiracy counts. See 18 U.S.C. § 3553(c) (requiring that the

district court ʺ state in open court the reasons for its imposition of a particular

sentence ʺ ).

The record lacks sufficient explanation as to why the district court denied

an adjustment for acceptance of responsibility; whether the district court considered the

apparent sentencing disparity between James and his co

‐ conspirators who received

considerably more lenient sentences (including time served sentences in some

instances) in spite of higher Guidelines ranges; and why the district court declined to

grant James a downward variance in light of all the circumstances and James ʹ s ʺ history

and characteristics, ʺ 18 U.S.C. § 3553(a)(1). The record also suggests some uncertainty

on the part of the district court as to the correct interpretation of our mandate in the

prior remand in this case.4 We remand to the district court to resolve this lack of clarity. Because the

district court ʹ s resolution of these issues is preliminary to our consideration of the

merits of the appeal, the remand is made pursuant to United States v. Jacobson

, 15 F.3d

19, 22 (2d Cir. 1994). Accordingly, we remand to the district court such jurisdiction as

is necessary to make clear its reasoning as to (1) its calculation of the applicable

Guidelines range, including whether James qualified for an adjustment for acceptance

of responsibility, see United States v. Cavera

, 550 F.3d 180, 189

‐ 90 (2d Cir. 2008) (en banc);

(2) its imposition of a term of imprisonment of 90 months on the conspiracy counts in

light of the need to avoid unwarranted disparity among defendants found guilty of

similar conduct, see 18 U.S.C. § 3553(a)(6); and (3) the denial of James ʹ s motion for a

downward variance, see 18 U.S.C. § 3553(a)(2). The district court may, in its discretion,

fulfill this Court ʹ s mandate by entering a supplementary statement of reasons or

adjusting James ʹ s sentence in a resentencing proceeding. This Court (and this panel)

shall retain jurisdiction over the matter. Upon a decision by the district court, full

jurisdiction will be restored to this Court and this panel by either party informing us by

letter of the district court ʹ s decision.

For the foregoing reasons, the case is REMANDED to the district court for

further proceedings consistent with this order. The mandate shall issue forthwith.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk of Court