13-3025

United States v. Nelson

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 4th 4 day of February, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 REENA RAGGI,

8 DEBRA ANN LIVINGSTON,

9 Circuit Judges.

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12 UNITED STATES OF AMERICA,

13 Appellee, 

14

15 -v.- 13-3025

16

17 DION NELSON, also known as “Booquan,”

18 Defendant-Appellant.

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20

21 FOR APPELLANT: Susan G. Kellman, Brooklyn, New

22 York.

23

24 FOR APPELLEE: Shreve Ariail, Amy Busa,

25 Assistant United States

26 Attorneys, for Loretta E. Lynch,

27 United States Attorney for the

1
1 Eastern District of New York,

2 Brooklyn, New York.

3

4 Appeal from a judgment of the United States District

5 Court for the Eastern District of New York (Garaufis, J.).

6

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8 AND DECREED that the judgment of the district court be

9 AFFIRMED. 

10

11 Defendant-appellant Dion Nelson appeals from a judgment

12 of the United States District Court for the Eastern District

13 of New York (Garaufis, J.), sentencing him to 25 years of

14 imprisonment for unlawful use and discharge of a firearm in

15 furtherance of a drug-trafficking crime, in violation of 18

16 U.S.C. § 924(c)(1)(A)(iii). We assume the parties’

17 familiarity with the underlying facts, the procedural

18 history, and the issues presented for review. 

19

20 Nelson argues that: (1) statutory language authorizing

21 a sentence “not less than ten years” requires a sentence of

22 exactly ten years; (2) the sentence was procedurally

23 unreasonable because the district court failed to explain in

24 open court the reasons for imposing an above-guidelines

25 sentence, and because of inaccuracies on the statement of

26 reasons form; and (3) the 25-year sentence was so long as to

27 be substantively unreasonable. We affirm the sentence, but

28 we remand for the limited purpose of allowing the district

29 court to issue a corrected statement of reasons.

30

31 1. Nelson argues that the 25-year sentence conflicts

32 with the statute, which authorizes “a term of imprisonment

33 of not less than 10 years.” However, 25 years is “not less

34 than 10 years”; so the sentence is permissible. See, e.g.,

35 United States v. Farmer, 583 F.3d 131, 151 (2d Cir. 2009). 

36 Nelson relies on (ambiguous) legislative history, inferences

37 from Supreme Court oral argument transcripts, and the rule

38 of lenity. However, “[w]e are bound by the decisions of

39 prior panels” of this Court. Gelman v. Ashcroft, 372 F.3d

40 495, 499 (2d Cir. 2004). This claim fails.

41

42 2. Nelson argues that the sentence was procedurally

43 unreasonable because of two separate violations of 18 U.S.C.

44 § 3553(c): (1) the district court did not explain why it

45 imposed a sentence that substantially exceeded the

46 guidelines recommendation of 10 years; and (2) the district

2
1 court’s statement of reasons contains inaccurate information

2 and insufficient justification for the sentence.

3

4 a. Nelson claims that the district court violated 18

5 U.S.C. § 3553(c) by failing to justify in open court its

6 decision to impose an above-guidelines sentence. But Nelson

7 made no relevant objection in the district court; so this

8 claim is reviewed for plain error. See United States v.

9 Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007) (“We now hold

10 that plain error analysis in full rigor applies to

11 unpreserved claims that a district court failed to comply

12 with § 3553(c).”). 

13

14 The plain error standard is a familiar one: “an

15 appellate court may, in its discretion, correct an error not

16 raised” before the district court

17

18 only where the appellant demonstrates that (1)

19 there is an error; (2) the error is clear or

20 obvious, rather than subject to reasonable

21 dispute; (3) the error affected the appellant’s

22 substantial rights, which in the ordinary case

23 means it affected the outcome of the district

24 court proceedings; and (4) the error seriously

25 affects the fairness, integrity or public

26 reputation of judicial proceedings.

27

28 United States v. Marcus, 560 U.S. 258, 262 (2010) (internal

29 quotation marks omitted). 

30

31 Nelson is correct that the district court erred, and

32 that its error was plain. To be sure, the district court

33 provided ample justification for imposing a sentence with a

34 lengthy term of incarceration. But the court did not

35 acknowledge that it was imposing an above-guidelines

36 sentence, so it therefore could not have satisfied its

37 obligation to explain its reasons for doing so.

38

39 But Nelson’s claim fails nonetheless, because the

40 district court’s error, though plain, did not “seriously

41 affect[] the fairness, integrity or public reputation of

42 judicial proceedings.” Marcus, 560 U.S. at 262. The

43 district court was clearly aware that it was departing from

44 the guidelines recommendation--even if the court never

45 adequately explained why. Early in the proceeding, the

46 district court observed that, because Nelson’s extensive

47 criminal history was not captured by the guidelines

3
1 recommendation, there was “no issue here regarding whether

2 there should be notice about a possible sentence above the

3 guidelines.”

4

5 b. As Nelson points out, the statement of reasons form

6 inaccurately states that the sentence imposed was within the

7 guidelines range; and the document contains no explanation

8 for why an above-guidelines sentence was appropriate in this

9 case. Like Nelson’s other procedural challenges, these are

10 clear violations of 18 U.S.C. § 3553(c)(2) (requiring that

11 the explanation for an above-guidelines sentence appear in

12 the written statement of reasons). This claim, too, is

13 raised for the first time on appeal.

14

15 Recognizing that such a claim will almost never survive

16 plain error review (this one is no exception), our cases

17 suggest that the proper remedy is a limited remand to allow

18 the district court to issue a corrected statement of

19 reasons. See United States v. Verkhoglyad, 516 F.3d 122,

20 133 (2d Cir. 2008). (The government does not oppose such a

21 remand here.) So although we affirm the sentence in all

22 respects, we will remand this case to the district court so

23 that a corrected statement of reasons may be issued.

24

25 3. Nelson argues that his 25-year sentence is so long

26 as to be substantively unreasonable. The precise sentence

27 chosen by the district court, if within lawful bounds, is

28 reviewed only for an abuse of discretion. Gall v. United

29 States, 552 U.S. 38, 51 (2007). That highly deferential

30 standard “provide[s] a backstop for those few cases that,

31 although procedurally correct, would nonetheless damage the

32 administration of justice because the sentence imposed was

33 shockingly high, shockingly low, or otherwise unsupportable

34 as a matter of law.” United States v. Rigas, 583 F.3d 108,

35 123 (2d Cir. 2009). Given Nelson’s extensive criminal

36 history, well-documented in the pre-sentence report and in

37 open court at the sentencing hearing, the district court did

38 not abuse its discretion in imposing a 25-year sentence.

39

40 ***

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4
1 For the foregoing reasons, and finding no merit in

2 Nelson’s other arguments, we hereby AFFIRM the judgment of

3 the district court, and REMAND for the limited purpose of

4 allowing the district court to issue a corrected statement

5 of reasons.

6

7 FOR THE COURT:

8 CATHERINE O’HAGAN WOLFE, CLERK

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