13-3025 United States v. Nelson



### 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**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 4 th** **day of February, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **REENA RAGGI,** 7 **DEBRA ANN LIVINGSTON,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 13-3025** 15 16 **DION NELSON, also known as “Booquan,”** 17 **Defendant-Appellant**

**.** 18 - - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** Susan G. Kellman, Brooklyn, New 21 York. 22 23 **FOR APPELLEE:** Shreve Ariail, Amy Busa, 24 Assistant United States 25 Attorneys, forLoretta E. Lynch, 26 United States Attorney for the 27

1Eastern District of New York, 1 Brooklyn, New York. 2 3 Appeal from a judgment of the United States District 4 Court for the Eastern District of New York (Garaufis, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the judgment of the district court be 8
**AFFIRMED**

. 9 10 Defendant-appellant Dion Nelson appeals from a judgment 11 of the United States District Court for the Eastern District 12 of New York (Garaufis, J. ), sentencing him to 25 years of 13 imprisonment for unlawful use and discharge of a firearm in 14 furtherance of a drug-trafficking crime
, in violation of 18 15 U.S.C. § 924(c)(1)(A)(iii)

. We assume the parties’ 16 familiarity with the underlying facts, the procedural 17 history, and the issues presented for review. 18 19 Nelson argues that: (1) statutory language authorizing 20 a sentence “not less than ten years” requires a sentence of 21 exactly ten years; (2) the sentence was procedurally 22 unreasonable because the district court failed to explain in 23 open court the reasons for imposing an above-guidelines 24 sentence, and because of inaccuracies on the statement of 25 reasons form; and (3) the 25-year sentence was so long as to 26 be substantively unreasonable. We affirm the sentence, but 27 we remand for the limited purpose of allowing the district 28 court to issue a corrected statement of reasons. 29 30 **1.** Nelson argues that the 25-year sentence conflicts 31 with the statute, which authorizes “a term of imprisonment 32 of not less than 10 years.” However, 25 years is “not less 33 than 10 years”; so the sentence is permissible. See, e.g.
, 34 United States v. Farmer , 583 F.3d 131, 151 (2d Cir. 2009). 35 Nelson relies on (ambiguous) legislative history, inferences 36 from Supreme Court oral argument transcripts, and the rule 37 of lenity. However, “[w]e are bound by the decisions of 38 prior panels” of this Court. Gelman v. Ashcroft , 372 F.3d 39 495, 499 (2d Cir. 2004). This claim fails. 40 41 **2.** Nelson argues that the sentence was procedurally 42 unreasonable because of two separate violations of 18 U.S.C. 43 § 3553(c): (1) the district court did not explain why it 44 imposed a sentence that substantially exceeded the 45 guidelines recommendation of 10 years; and (2) the district 46

2court’s statement of reasons contains inaccurate information 1 and insufficient justification for the sentence. 2 3

**a.** Nelson claims that the district court violated 18 4 U.S.C. § 3553(c) by failing to justify in open court its 5 decision to impose an above-guidelines sentence. But Nelson 6 made no relevant objection in the district court; so this 7 claim is reviewed for plain error. SeeUnited States v. 8 Villafuerte , 502 F.3d 204, 211 (2d Cir. 2007) (“We now hold 9 that plain error analysis in full rigor applies to 10 unpreserved claims that a district court failed to comply 11 with § 3553(c).”). 12 13 The plain error standard is a familiar one: “an 14 appellate court may, in its discretion, correct an error not 15 raised” before the district court 16 17 only where the appellant demonstrates that (1) 18 there is an error; (2) the error is clear or 19 obvious, rather than subject to reasonable 20 dispute; (3) the error affected the appellant’s 21 substantial rights, which in the ordinary case 22 means it affected the outcome of the district 23 court proceedings; and (4) the error seriously 24 affects the fairness, integrity or public 25 reputation of judicial proceedings. 26 27 United States v. Marcus , 560 U.S. 258, 262 (2010) (internal 28 quotation marks omitted). 29 30 Nelson is correct that the district court erred, and 31 that its error was plain. To be sure, the district court 32 provided ample justification for imposing a sentence with a 33 lengthy term of incarceration. But the court did not 34 acknowledge that it was imposing an above-guidelines 35 sentence, so it therefore could not have satisfied its 36 obligation to explain its reasons for doing so. 37 38 But Nelson’s claim fails nonetheless, because the 39 district court’s error, though plain, did not “seriously 40 affect[] the fairness, integrity or public reputation of 41 judicial proceedings.” Marcus , 560 U.S. at 262. The 42 district court was clearly aware that it was departing from 43 the guidelines recommendation--even if the court never 44 adequately explained why. Early in the proceeding, the 45 district court observed that, because Nelson’s extensive 46 criminal history was not captured by the guidelines 47

3recommendation, there was “no issue here regarding whether 1 there should be notice about a possible sentence above the 2 guidelines.” 3 4 **b.** As Nelson points out, the statement of reasons form 5 inaccurately states that the sentence imposed was within the 6 guidelines range; and the document contains no explanation 7 for why an above-guidelines sentence was appropriate in this 8 case. Like Nelson’s other procedural challenges, these are 9 clear violations of 18 U.S.C. § 3553(c)(2) (requiring that 10 the explanation for an above-guidelines sentence appear in 11 the written statement of reasons). This claim, too, is 12 raised for the first time on appeal. 13 14 Recognizing that such a claim will almost never survive 15 plain error review (this one is no exception), our cases 16 suggest that the proper remedy is a limited remand to allow 17 the district court to issue a corrected statement of 18 reasons. SeeUnited States v. Verkhoglyad , 516 F.3d 122, 19 133 (2d Cir. 2008). (The government does not oppose such a 20 remand here.) So although we affirm the sentence in all 21 respects, we will remand this case to the district court so 22 that a corrected statement of reasons may be issued. 23 24 **3.** Nelson argues that his 25-year sentence is so long 25 as to be substantively unreasonable. The precise sentence 26 chosen by the district court, if within lawful bounds, is 27 reviewed only for an abuse of discretion. Gall v. United 28 States , 552 U.S. 38, 51 (2007). That highly deferential 29 standard “provide[s] a backstop for those few cases that, 30 although procedurally correct, would nonetheless damage the 31 administration of justice because the sentence imposed was 32 shockingly high, shockingly low, or otherwise unsupportable 33 as a matter of law.” United States v. Rigas , 583 F.3d 108, 34 123 (2d Cir. 2009). Given Nelson’s extensive criminal 35 history, well-documented in the pre-sentence report and in 36 open court at the sentencing hearing, the district court did 37 not abuse its discretion in imposing a 25-year sentence. 38 39

*** 40 41 42 43 44 45 46 47

4For the foregoing reasons, and finding no merit in 1 Nelson’s other arguments, we hereby **AFFIRM** the judgment of 2 the district court, and **REMAND** for the limited purpose of 3 allowing the district court to issue a corrected statement 4 of reasons. 5 6 FOR THE COURT: 7 CATHERINE O’HAGAN WOLFE, CLERK 8 9 10 11 12

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