17-2004-cr

United States v. Rosa

In the

United States Court of Appeals

for the Second Circuit

August Term, 2019

No. 17-2004-cr

UNITED STATES OF AMERICA,

Appellee,

v.

GILBERTO ROSA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of New York.

No. 1:16-cr-101-1 — Sterling Johnson, Jr., Judge.

ARGUED: FEBRUARY 24, 2020

DECIDED: APRIL 17, 2020

Before: LIVINGSTON, PARK, and NARDINI, Circuit Judges.

Defendant-Appellant Gilberto Rosa appeals from a judgment entered 

June 23, 2017, in the United States District Court for the Eastern District of 

New York (Sterling Johnson, Jr., Judge), sentencing him to an 87-month term 
2

of imprisonment. We conclude that Rosa’s sentence is procedurally 

unreasonable because the district court failed to state its reasons for the 

sentence imposed as required by 18 U.S.C. § 3553(c). We therefore 

REMAND the case to the district court to conduct a resentencing.

DEVIN MCLAUGHLIN, Langrock Sperry & 

Wool, LLP, Middlebury, VT, for DefendantAppellant.

MICHAEL P. ROBOTTI (Jo Ann M. Navickas, on the 

brief), Assistant United States Attorneys, for 

Richard P. Donoghue, United States Attorney for 

the Eastern District of New York, Brooklyn, NY, 

for Appellee.

WILLIAM J. NARDINI, Circuit Judge:

Defendant-Appellant Gilberto Rosa appeals from a judgment entered 

on June 23, 2017, in the United States District Court for the Eastern District 

of New York (Sterling Johnson, Jr., Judge), sentencing him to an 87-month

term of imprisonment for conspiracy to commit wire fraud in violation of 

18 U.S.C. § 1349 and aggravated identity theft in violation of 18 U.S.C. 

§ 1028A. Rosa argues that his sentence is procedurally unreasonable 

because the district court failed to state in open court its reasons for the 

sentence imposed. As we explain below, the district court did not state its 
3

reasons as required by 18 U.S.C. § 3553(c). We therefore remand the case to 

the district court with instructions to vacate the sentence and to conduct a 

resentencing that satisfies § 3553(c).

I. BACKGROUND

From January 2012 to June 2015, Rosa and several others took part in 

a scheme to obtain car loans fraudulently. One of the ways they did this 

was to use other people’s Social Security numbers in loan applications. On 

March 10, 2016, Rosa pled guilty to an information charging him with 

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 (Count One) 

and aggravated identity theft in violation of 18 U.S.C. § 1028A (Count Two). 

Under the plea agreement, Rosa agreed to pay his victims $798,542.43 in 

restitution.

Even after pleading guilty, Rosa kept committing crimes. In 2016, he 

engaged in more fraud—this time in buying a used car dealership. Rosa

also failed to disclose to Pretrial Services that he made money through the 

dealership, instead falsely claiming that he was working as a photographer.
4

In advance of sentencing, the Probation Office prepared a Presentence 

Report (“PSR”) which described Rosa’s participation in more than thirtyfive fraudulent transactions—both before and after his plea—involving 

$850,104.23 in fraudulently obtained funds. In calculating the range under 

the United States Sentencing Guidelines, the PSR used a total offense level 

of 26, which included a three-level enhancement pursuant to § 3C1.3 of the 

Guidelines. The PSR used a criminal history category of II, yielding a range 

of 70 to 87 months of imprisonment on Count One, to be followed by a 

mandatory consecutive 24 months on Count Two, for a combined total 

Guidelines range of 94 to 111 months.

At Rosa’s sentencing hearing on April 27, 2017, the parties and the 

district court agreed that the PSR had incorrectly applied § 3C1.3. That

enhancement applies only to post-plea conduct for which a defendant had 

been separately convicted. The court recognized that, using an adjusted 

offense level of 23, Rosa’s Guidelines range for Count One became 51 to 63 
5

months. Adding 24 consecutive months for Count Two, Rosa faced a total 

range of 75 to 87 months.

After hearing from both parties as well as three victims, the district 

court sentenced Rosa to 63 months on Count One plus 24 consecutive 

months on Count Two, for a total of 87 months. The court also ordered 

restitution of $715,857.26. This was much less than the restitution amount 

listed in the plea agreement: $798,542.43. 

During the hearing, the district court did not explain why it chose this 

sentence. Nor did it adopt the PSR in open court. Rosa, however, did not 

object to the sentence or ask the district court to explain its reasoning.

On June 23, 2017, the district court entered its written judgment. The 

judgment included a restitution order of $690,774.08, which was even lower 

than the $715,857.26 that the court had announced at sentencing.

The district court also issued a written statement of reasons dated 

June 23, 2017 (“SOR”), which deviated from the oral sentencing in four 

significant ways. First, the court checked a box indicating that it adopted
6

the PSR without changes, even though at sentencing the district court had

adopted a materially different calculation by rejecting the § 3C1.3 

enhancement. Second, the SOR identified the total offense level as 26 

instead of 23, the level actually used at sentencing after rejection of the 

enhancement. Third, the SOR incorrectly identified a Guidelines range of

70 to 87 months rather than the range of 75 to 87 months used at sentencing. 

(The PSR had calculated 70 to 87 months only for Count One.) Fourth, the 

SOR listed restitution as $690,774.08—the amount listed in the written 

judgment—even though the court had orally ordered $715,857.26 at 

sentencing.

This appeal followed.1

1 We note that, after Rosa filed his notice of appeal, the Government submitted a letter 

request to the district court seeking an amended judgment altering the restitution amount 

to $798,542.42, as proposed in the plea agreement (with a downward adjustment of one 

cent, apparently accounting for a minor initial miscalculation). On June 7, 2018, the 

district court granted that request.

It is not apparent that the district court had jurisdiction to enter the amended 

judgment. The Government’s letter cited Federal Rule of Criminal Procedure 36, which 

permits the court to “correct a clerical error in a judgment,” but no clerical error, such as 

a mistaken transcription, is apparent here. See United States v. DeMartino, 112 F.3d 75, 79 

(2d Cir. 1997) (“Rule 36 . . . does not authorize the court to amend the oral sentence itself 
7

II. DISCUSSION

In reviewing the procedural reasonableness of a sentence, this Court 

considers “whether the district court committed a significant procedural 

error, ‘such as . . . failing to adequately explain the chosen sentence.’”2 

Section 3553(c) of Title 18 of the United States Code obligates a district court 

to “state in open court the reasons for its imposition of the particular 

sentence.”3 This serves important goals, including:

or to modify the written judgment to effectuate an intention that the court did not express 

in its oral sentence.”); United States v. Werber, 51 F.3d 342, 343 (2d Cir. 1995) (“Rule 36 

authorizes a court to correct only clerical errors in the transcription of judgments, not to 

effectuate its unexpressed intentions at the time of sentencing.” (footnote omitted)); see 

also United States v. Thomas, 135 F.3d 873, 875 (2d Cir. 1998) (sentencing judge’s “desire . . . 

to correct the sentence to comport with his original intentions (that were not stated at 

sentencing) was not enough to justify modification under Rule 36”). Neither party has 

raised any objections with respect to the amended judgment. 

Nevertheless, we need not address this issue because we remand with instructions 

that the district court vacate the sentence and conduct a resentencing. On remand, we 

expect the parties will be attentive to alerting the district court to the correct restitution 

amount. Equipped with this information, the district court will have authority to order 

restitution appropriately.

2 United States v. Pruitt, 813 F.3d 90, 92 (2d Cir. 2016) (quoting Gall v. United States, 552 U.S. 

38, 51 (2007)). 

3 18 U.S.C. § 3553(c).
8

(1) to inform the defendant of the reasons for his sentence, (2) to 

permit meaningful appellate review, (3) to enable the public to 

learn why defendant received a particular sentence, and (4) to 

guide probation officers and prison officials in developing a 

program to meet defendant’s needs.4

We review for plain error where, as here, the defendant failed to raise 

a § 3553(c) objection below.5 To meet the plain error standard, Rosa must 

establish four elements:

(1) there is an error; (2) the error is clear or obvious, rather than 

subject to reasonable dispute; (3) the error affected the 

appellant’s substantial rights; and (4) the error seriously affects 

the fairness, integrity or public reputation of judicial 

proceedings.6

We address each of these elements in turn.

4 United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004).

5 See United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007) (“We now hold that plain 

error analysis in full rigor applies to unpreserved claims that a district court failed to 

comply with § 3553(c).”); Fed. R. Crim. P. 52(b) (“A plain error that affects substantial 

rights may be considered even though it was not brought to the court’s attention.”).

6 United States v. Balde, 943 F.3d 73, 96 (2d Cir. 2019) (internal quotation marks omitted); 

see Villafuerte, 502 F.3d at 209.
9

A. There is an error.

First, we find error. At Rosa’s sentencing hearing, the district court 

failed to provide any explanation of the sentence imposed. Notably, it did 

not adopt the PSR in open court, which this Court has held can satisfy 

§ 3553(c)’s requirement of an in-court explanation.7 The district court stated

only that it reached its decision “[a]fter hearing arguments by the counsel 

and reading the submissions and 3553(a) factors.”8 Such a bare statement, 

with nothing more, is insufficient to comply with § 3553(c).9

In arguing that the district court satisfied § 3553(c), the Government 

points to precedent involving the separate procedural error of failing to 

7 Molina, 356 F.3d at 277.

8 App’x at 38. 

9 See United States v. Genao, 869 F.3d 136, 141 (2d Cir. 2017) (no adequate explanation where 

“the sentencing court explained only that it had ‘taken into consideration the factors of 

3553(a), oral argument and the submissions, and . . . believe[d that] the sentence . . . [wa]s 

sufficient but not greater than necessary to meet the aims of the statute,’” and failed to 

offer any explanation for applying a contested 16-level enhancement (alterations in 

original)); United States v. Zackson, 6 F.3d 911, 923 (2d Cir. 1993) (no adequate explanation 

where sentencing court stated only “I have considered everything”).
10

consider the sentencing factors set forth in 18 U.S.C. § 3553(a). The 

Government is correct that this Court presumes that the sentencing judge 

has considered all relevant § 3553(a) factors and arguments unless the 

record suggests otherwise.10 That presumption certainly applies here, and

is supplemented by the court’s explicit statement that it had considered the 

§ 3553(a) factors. However, the fact that the court considered the § 3553(a) 

factors and arguments does not satisfy the separate obligation under 

§ 3553(c) to explain in open court how its consideration led to the sentence 

imposed. 

To be sure, some of the same concerns animate our precedent on both 

§ 3553(a) and § 3553(c). In both contexts, we have consistently refrained 

from requiring the district court to explicitly address specific sentencing 

considerations. We have also never required a district court to explain in 

open court why any particular unselected sentence would be inappropriate

10 See United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006), abrogated on other grounds by 

Rita v. United States, 551 U.S. 338 (2007).
11

(either because it is greater than necessary or because it is not sufficient to 

satisfy the goals of sentencing); we do not oblige district courts to expressly 

compare various numbers. Under § 3553(c), we simply expect the court to 

identify the consideration or considerations driving the selection of the 

sentence that was actually imposed. A district court’s explanation for why 

it chose a particular sentence itself constitutes an explanation for why it 

believed a higher or lower sentence would not have been “sufficient, but not 

greater than necessary” to comply with the purposes of § 3553(a).

There is no mechanical test for compliance with § 3553(c). The 

adequacy of an explanation is highly case specific, as “the length and level 

of detail required varies depending upon the circumstances.”11 This Court

has therefore refused to “encroach upon the province of district courts by 

dictating a precise mode or manner in which they must explain the 

11 Villafuerte, 502 F.3d at 210. 
12

sentences they impose.”12 We have declined to “insist that the district court 

address every argument the defendant has made or discuss every § 3553(a) 

factor individually”; “prescribe any formulation a sentencing judge will be 

obliged to follow in order to demonstrate discharge of the duty to consider 

the Guidelines”; or otherwise require “robotic incantations by district 

judges.”13 This Court recognizes that “[s]entencing is a responsibility heavy 

enough without our adding formulaic or ritualized burdens.”14

Indeed, the “statement” requirement of § 3553(c) sets a low threshold. 

As the Supreme Court has explained: “The appropriateness of brevity or 

length, conciseness or detail, when to write, what to say, depends upon 

circumstances.”15 Where, as here, “a judge decides simply to apply the 

12 United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007), superseded by statute on other 

grounds as recognized in United States v. Smith, 949 F.3d 60, 64 (2d Cir. 2020).

13 Villafuerte, 502 F.3d at 210 (punctuation, internal quotation marks, and citations

omitted); see United States v. Cassesse, 685 F.3d 186, 192 (2d Cir. 2012) (“Section 3553(c) 

requires no specific formulas or incantations . . . .”).

14 United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc).

15 Rita, 551 U.S. at 356. 
13

Guidelines to a particular case, doing so will not necessarily require lengthy 

explanation.”16 “Circumstances may well make clear that the judge rests his

decision upon the Commission’s own reasoning that the Guidelines 

sentence is a proper sentence . . . in the typical case, and that the judge has 

found that the case before him is typical.”17 Moreover, as this Court has 

recognized, “a brief statement of reasons will generally suffice where the 

parties have addressed only straightforward, conceptually simple 

arguments to the sentencing judge.”18 The “context and the record” may 

render a district court’s explanation adequate even where “the judge might 

have said more.”19

16 Id. 

17 Id. at 357; see id. at 345, 358 (explanation adequate where sentencing judge stated that a 

Guidelines sentence was appropriate as “the public needs to be protected”). 

18 Cavera, 550 F.3d at 193 (internal quotation marks omitted).

19 Rita, 551 U.S. at 359.
14

Nonetheless, “[s]tating no reasons at all plainly falls short of the 

requirement to state reasons that is set forth in § 3553(c), no matter what the 

required level of specificity may be.”20 Recently, this Court reaffirmed that 

principle in United States v. Pugh, where the district court failed to explain a

sentence that involved consecutive statutory maximum terms on two 

counts. 21 This Court recognized that the absence of any explanation

obscured the district court’s decision-making process, including but not 

limited to the decision to impose consecutive rather than concurrent terms. 

We do not read Pugh to deviate from longstanding precedent of this Court 

holding that a district court need not use any particular set of words to 

satisfy § 3553(c) or expressly address any particular sentencing 

20 United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005) (internal quotation marks omitted).

21 United States v. Pugh, 945 F.3d 9, 16, 27 (2d Cir. 2019).
15

consideration. 22 Pugh simply applies the settled principle that a district 

court must provide some oral account of its reasoning that would permit an 

understanding of how the district court weighed the relevant considerations 

and selected the sentence imposed. Although the requisite detail will differ

by case, and may often be stated with concision, the utter absence of

explanation will never suffice.

In the case before us, the district court understandably might not have 

felt a need to explain its sentence in light of Rosa’s sheer number of 

fraudulent schemes, particularly after just having heard from numerous 

victims in open court. We do not question that the need for deterrence is

high in this case, and that such a need likely seemed obvious to the district 

court. However, the fact that we can readily discern from the record any 

number of good reasons for the sentence imposed does not eliminate the 

22 See Genao, 869 F.3d at 142 (“There is no requirement that a judge imposing a sentence 

provide lengthy or elaborate explanations of the often multiple aggravating and 

mitigating factors about the offense and the offender, or the precise weight assigned by 

the court to the various, sometimes competing policy considerations relevant to 

sentencing.”).
16

district court’s independent obligation to explain its reasoning in open 

court. Given this unusually spare sentencing transcript, we are constrained 

to find that § 3553(c) was not satisfied here.

B. The error is clear or obvious

Second, we conclude that the error was clear or obvious. This Court 

has repeatedly held that a district court must offer at least some minimal incourt explanation of its sentence. Of course, “[t]he line between 

appropriately succinct and inadequately silent may be difficult to draw in 

particular cases.”23 In close cases, to determine whether the inadequacy of 

a district court’s explanation reflects a clear or obvious error, we have 

focused on the “level of detail” in the district court’s statements at 

sentencing.24 Here, where the district court provided no detail at all as to its 

23 Genao, 869 F.3d at 142.

24 Villafuerte, 502 F.3d at 212; see id. (any error regarding adequacy of explanation was not 

obvious as district court “was not mute at sentencing,” “found that the bottom of the 

Guidelines range was ‘a fair sentence’ given [the defendant’s] conduct,” and “offered 

reasons for rejecting [the defendant’s] arguments for a non-Guidelines sentence” (citation 

omitted)).
17

reasoning process and was silent on the subject of how it arrived at the 

sentence imposed, the lack of compliance with § 3553(c) is clear.

C. The error affected Rosa’s substantial rights.

Third, we conclude that the error affected Rosa’s substantial rights. 

In so doing, we reject the Government’s argument that the district court’s 

issuance of the SOR precludes a finding of plain error.

This Court has previously declined to find plain error where a district 

court failed to provide an in-court explanation but then adopted in writing 

a PSR containing “factual findings . . . adequate to support the sentence.”25 

Where a district court adequately explains its sentence through subsequent 

written adoption of a PSR, “the error”—that is, failure to provide an 

25 United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008); see Molina, 356 F.3d at 277 (no 

plain error where “there were no specific factual findings and no explicit adoption by the 

district court of appellant’s PSR in open court” but “[t]he adequate findings of defendant’s 

PSR were adopted in the written judgment” (citation omitted)).
18

adequate in-court explanation—“d[oes] not affect a substantial right of the 

defendant.”26

Here, however, the SOR was unusually disconnected from the orally

imposed sentence and contained too many errors to reflect clear adoption of 

the PSR and to serve as an adequate explanation for the sentence imposed. 

Although the SOR purported to adopt the PSR without change, in fact the

district court had explained in open court that it was deviating significantly

from the PSR’s Guidelines calculation. Moreover, the SOR identified a 

different total offense level and a different Guidelines range than those used 

at sentencing. 27 And finally, the SOR identified a completely different 

restitution amount than the amount imposed at sentencing. The SOR 

provided only confusion, not an explanation.

26 Molina, 356 F.3d at 278.

27 The SOR also stated that the sentence imposed fell within the Guidelines range even 

though this sentence actually fell beneath the Guidelines range calculated in the PSR (94 

to 111 months). It appears to be mere coincidence that the actual sentence imposed fell 

not only within the range used at sentencing but also within the erroneous range in the 

SOR.
19

Given the number of inaccuracies in the SOR, we conclude that the 

error here affected Rosa’s substantial rights.

D. The error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings

Fourth and finally, we conclude that the error seriously affects the 

fairness, integrity, or public reputation of judicial proceedings. As the 

Supreme Court explained in Rita v. United States, § 3553(c)’s requirement 

protects public trust in the judiciary:

The statute does call for the judge to “state” his “reasons.” And 

that requirement reflects sound judicial practice. Judicial 

decisions are reasoned decisions. Confidence in a judge’s use 

of reason underlies the public’s trust in the judicial institution. 

A public statement of those reasons helps provide the public 

with the assurance that creates that trust.28

Here, no explanation of the sentence is evident from the record, whether 

from the transcript of the sentencing hearing or other materials, and the 

reasons underlying Rosa’s sentence are therefore not available either to this 

28 Rita, 551 U.S. at 356.
20

Court or the public. Accordingly, all four prongs of the plain error test are

satisfied in this case.

We therefore remand with instructions that the district court conduct 

a resentencing, during which the court will have an opportunity to clearly 

set forth the reasons for its sentence.29 In so doing, we stress that nothing in 

this opinion should be read as intimating a view that this Court harbors 

concerns regarding the substantive reasonableness of Rosa’s sentence. We 

29 As to the appropriate remedy, depending on the circumstances of a district court’s 

failure to comply with § 3553(c), our Court has taken either of two approaches. In United 

States v. Lewis, we remanded with instructions that the district court vacate the sentence

and conduct a full resentencing. 424 F.3d at 249. By contrast, in United States v. Zackson, 

we “affirm[ed] the judgment of conviction and sentence” but remanded for an adequate 

statement of reasons. 6 F.3d at 914. We also stated that the same panel would “retain 

jurisdiction in the event of a subsequent appeal.” Id. at 924. (We commonly use the term 

“Jacobson remand” to refer to the approach in which we “remand partial jurisdiction to 

the district court to supplement the record on a discrete factual or legal issue while 

retaining jurisdiction over the original appeal.” Corporación Mexicana De Mantenimiento 

Integral, S. De R.L. De C.V. v. Pemex-Exploración Y Producción, 832 F.3d 92, 115 (2d Cir. 2016) 

(Winter, J., concurring). The name derives from United States v. Jacobson, in which this 

Court recognized the authority of federal appellate courts to seek “supplementation of a 

record without a formal remand or the need for a new notice of appeal before the appellate 

panel acts on the supplemental record.” 15 F.3d 19, 22 (2d Cir. 1994).) This Court has 

discretion to follow either path. We conclude that the Lewis course is more appropriate 

here, given the confusion caused by the conflicting restitution amounts. By directing the 

district court to vacate the sentence and to conduct a fresh sentencing, the court will have 

authority to enter a correct restitution order free from any jurisdictional doubt.
21

limit ourselves to the single question of whether the record satisfies

§ 3553(c).

III. CONCLUSION

In sum, we hold that where a district court offers no explanation for 

its sentence, and where neither the adopted PSR nor the SOR adequately 

demonstrates the court’s reasoning, the court has committed plain error in 

violation of § 3553(c).

We therefore REMAND the case to the district court to vacate the 

sentence and conduct a resentencing that satisfies § 3553(c).