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United States v. Irizarry (McFarland)



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

(REDACTED)

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 DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX 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

.

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 31 st day of January, two thousand

nineteen.

PRESENT: AMALYA L. KEARSE,

DENNIS JACOBS,

ROBERT D. SACK,

Circuit Judges,

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

UNITED STATES OF AMERICA,

Appellee,

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EFRAIN IRIZARRY, AKA ETO, WILLIAM2 SANTANA, AKA PUSO, ROY SMITH, AKA

RAH, CHARLES ECHEVARRIA,

Defendants,

TROY MCFARLAND, AKA DEVINE,

Defendant

‐ Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR APPELLANT: Eric P. Franz, Law Offices of Eric

Franz, P.L.L.C., New York, NY (on

submission).

FOR APPELLEE: Matthew S. Amatruda, David C.

James, Assistant United States

Attorneys, for Richard P. Donoghue,

United States Attorney for the

Eastern District of New York,

Brooklyn, NY (on submission).

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

District of New York (Kuntz, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be

VACATED and REMANDED

.

On August 14, 2015, Defendant

‐ Appellant Troy McFarland pleaded guilty

in the United States District Court for the Eastern District of New York (Kuntz, J.)

to one count of conspiracy to distribute and possess with intent to distribute 100

grams or more of heroin in violation of 21 U.S.C. § 846, and one count of firearms

trafficking in violation of 18 U.S.C. § 922(a)(1)(A). On appeal, McFarland argues

that the district court committed procedural error at sentencing, and that the

84

‐ month sentence must therefore be vacated. We assume the parties’

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

presented for review.3 “A district court commits procedural error where it fails to calculate (or

improperly calculates) the Sentencing Guidelines range, treats the Sentencing

Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects

a sentence based on clearly erroneous facts, or fails adequately to explain the

chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)

(citing Gall v. United States, 552 U.S. 38, 51 (2007)). Our review for procedural

reasonableness is akin to a “deferential abuse

‐ of

‐ discretion standard.” United

States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (quoting Gall, 552 U.S.

at 41). However, “[a] sentencing court’s legal application of the Guidelines is

reviewed de novo.” United States v. Desnoyers, 708 F.3d 378, 385 (2d Cir. 2013)

(internal quotation marks omitted).

The parties agree, and the record reflects, that the district court committed

procedural error that requires vacatur of McFarland’s sentence. First, the record

is unclear as to whether the court correctly determined the applicable Guidelines

range. The presentence investigation report (“PSR”) noted that a downward

departure from McFarland’s criminal history category of VI may be warranted to

avoid overrepresenting the seriousness of his prior convictions, and that his

criminal history category would be III if motor vehicle offenses were removed

from consideration. However, the PSR incorrectly stated that in the event of a

departure to criminal history category III, the resulting Guidelines range would

be 70

‐ 87 months, rather than the correct range of 57

‐ 71 months. The district

court’s post

‐ sentencing opinion recognized the PSR’s error but failed to state a

finding as to the applicable Guidelines range. Moreover, the district court

provided an unclear answer at sentencing in response to counsel’s query of

whether a departure to criminal history category III had been granted, and simply

noted in its written opinion that the Guidelines range would be 51

‐ 63 months if

the court were to accept McFarland’s request for a downward departure to

criminal history category II. Because it is unclear whether the district court

correctly calculated the Guidelines range, remand for resentencing is appropriate.

See Robinson, 702 F.3d at 38.

In addition, the district court appears to have accepted the PSR’s incorrect

statement that 18 U.S.C. § 924(a)(1)(D) requires the sentence for McFarland’s

firearms charge to be imposed consecutively to the sentence for his narcotics4 charge. See United States v. White, 240 F.3d 127, 137 (2d Cir. 2001) (remanding

for resentencing where it was ambiguous whether the district court understood it

had discretion to impose concurrent sentences). And the district court’s

statements at sentencing and in its written opinion suggest that it erroneously

treated the Guidelines range as applicable to the sentence for each count

separately, rather than the “total punishment” imposed. See U.S.S.G. § 5G 1.2.

The district court failed to rule on McFarland’s motion for a downward

departure pursuant to Guidelines § 5K2.23, based on time served in state custody.

Accordingly, the ju dgment of the district court is VACATED and the case

is REMANDED to the district court for resentencing. On remand, the district

court is directed to clearly state its findings with respect to the applicable

Guidelines range (including McFarland’s entitlement to any downward

departures), and whether consecutive or concurrent sentences are appropriate.

FOR THE COURT:

CAT HERINE O’HAGAN WOLFE, CLERK