14-1728-cr (L) United States v. Wallace

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not ha ve 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 (wit h 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 Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 22 nd day of June, two thousand fifteen. 3
4 PRESENT: 5 C HESTER J. S TRAUB , 6 B ARRINGTON D. P ARKER , 7 S USAN L. C ARNEY , 8 Circuit Judges

. 9

_____________ _______________ ______________ 10
11 U NITED S TATES OF A MERICA , 12
13 Appellee
, 14
15 v. Nos. 14-1728-cr (L), 16 14-1980-cr (Con) 17 J ERKENO W ALLACE , AKA U PTOWN , AND 18 N EGUS T HOMAS , AKA B ROWN E YES , AKA B.E., 19
20 Defendants-Appellants
, 21
22 K ELVIN C OLEMAN , K IMBERLY C RUZE , L AVAR 23 J ACKSON , AKA S MOKEY , P ETER P ITTER , E NRIQUE 24 S TEWART , K AVOHN T AYLOR , AKA O X , K UWAN 25 W ALLACE , AKA K ILLER Q, S HAKON W ALLACE , 26 AKA S HOCK , A ARON W OOD , 27
28 Defendants

. * 29

* The Clerk of Court is respectfully directed to amend the official caption to co nform with the above.2 _____________ _______________ _____________ 1
2 FOR APPELLEE: M ICHAEL J. G USTAFSON , Assistant United 3 States Attorney (Marc H. Silverman, 4 Assistant United States Attorney, on the 5 brief ), for Deirdre M. Daly, United States 6 Attorney for the District of Connecticut, 7 New Haven, CT. 8
9 FOR DEFENDANT-APPELLANT 10 WALLACE: R ICHARD S. C RAMER , E SQ ., Hartford, CT. 11
12 FOR DEFENDANT-APPELLANT 13 THOMAS: V IVIAN S HEVITZ , E SQ ., South Salem, NY. 14
15 Appeal from orders of the United Stat es District Court for the District of 16 Connecticut (Thompson, J. ). 17
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 18 ADJUDGED, AND DECREED that the causes are REMANDED for further 19 proceedings consistent with this order. 20
Defendants-Appellants Jerkeno Wallace and Negus Thomas challenge as procedurally 21 and substantively unreasonable the District Cour t’s May 14, 2014 denials of their requests to 22 modify or reduce their sentences under 18 U.S.C. § 3582. We assume the parties’ familiarity 23 with the underlying facts and the procedural history of the case, to which we refer only as 24 necessary to explain our decision to remand to the District Court in accordance with the 25 procedures set forth in United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994). 26
On May 13, 2003, after a jury trial, Walla ce and Thomas were convicted of six counts 27 and seven counts, respectively, arising from th eir roles in drug trafficking and a drive-by 28 murder. On December 12, 2003, Judge Thom pson sentenced Wallace and Thomas each to 29 an effective term of life imprisonment (principal ly for the drug trafficking conspiracy and the 30 drive-by murder convictions) and a consecuti ve term of ten years’ imprisonment (for 31 convictions for related use of a firearm). Wallace and Thomas appealed their convictions 32 and sentences on numerous grounds. 333 Except for a limited remand not relevant he re, our Court affirmed the convictions. 1 At the same time, we ruled that because Wallace and Thomas were sentenced under a 2 mandatory-guideline regime that had since been rejected in United States v. Booker , 543 U.S. 3 220 (2005), we were compelled to remand thei r causes to the District Court for further 4 proceedings in conformity wi th the process laid out in United States v. Crosby , 397 F.3d 103 5 (2d Cir. 2005). See United States v. Wallace , 447 F.3d 184, 185 (2d Cir. 2006); United States v. 6
Wallace , 178 F. App’x 76, 81 (2d Cir. 2006). Our Crosby process calls for remand to the 7 district court “not for the purpose of a requi red resentencing, but only for the more limited 8 purpose of permitting the sentencing judge to determine whether to resentence, now fully 9 informed of the new sentencing re gime, and if so, to resentence.” Crosby , 397 F.3d at 117 10 (emphasis in original). Crosby thus demands plenary resentencing only if a district court first 11 determines that it would have imposed a “nontrivially different sentence” under the Booker 12 regime. Id. at 118. 13
Eight years after our Crosby remand in their cases, the District Court denied 14 defendants’ requests for resentencing and le ft untouched the sentences it originally 15 imposed. 1 Adhering to our Crosby protocol, the District Court first “obtain[ed] the views of 16
counsel” to determine whether to resentence “based on the circ umstances at the time of the 17 original sentence.” Id

. at 120. After considering defendants’ submissions, the District Court 18 concluded that it would not have imposed a nontrivially different sentence as to either 19
defendant had it understood the Guidelines to be advisory when first imposing sentences. It 20 stated several grounds in support of its decisi on. These included that it would not have 21 exercised its discretion to depart downward from the Guidelines when it imposed the 22 original sentences and, as discussed in more de tail below, that nothing it had learned about 23 any “positive changes” the defendants had undergone since the time of the original 24 sentencing proceedings had caused it to chan ge its mind about the need to impose a life 25

1 We are troubled that Wallace and Thomas had to wa it so long for the District Court to decide their requests for resentencing and to complete the Crosby remand process. Defendants identify no meaningful prejudice resulting from the delay, however, and the lapse of time, while certainly regrettable because of the prolonged uncertainty that it caused, does not affect our analysis of the legal issues bearing on this appeal.4 sentence on defendants in order to protect soci ety and deter others from similarly violent 1 acts. Order: The Request for Post-Booker Resentencing as to Jerkeno Wallace [ECF No. 2 657], at *3-*5, United States v. Thomas , No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014); 3 Order: The Request for Post-Booker Resentencing as to Negus Thomas [ECF No. 658], at 4 *3-*5, United States v. Thomas , No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014). 5
On appeal, Wallace and Thomas argue that the District Court erred in commenting 6 on the absence of any demonstrations of subsequent remorse and lack of post-sentence 7
rehabilitation—comments that the District Co urt made without having solicited relevant 8 submissions from them. Rather, they assert, th ey should have been permitted to submit 9 “updates” to the court before the court performed its analysis. 10

A district court’s “threshold determination” under Crosby , however, is whether— 11 based on the circumstances as they were at the time of the original sentence—it would have 12 imposed a nontrivially different sentence under the post- Booker regime such that a plenary 13 resentencing is warranted. Crosby , 397 F.3d at 119-20. We have repeatedly directed district 14 courts not to consider evidence of post-convi ction rehabilitation at the first step of a Crosby 15
remand. See United States v. Ferrell , 485 F.3d 687, 688 (2d Cir. 2007). Rather, “[i]f the district 16 court finds it would not have imposed a materia lly different sentence, that is the end of the 17
matter.” Id. 18
In view of the limited scope of Crosby ’s mandate, however, we are concerned by 19 language in the District Court’s Crosby orders tending to suggest that it may have 20 impermissibly considered post-sentence remors e and rehabilitation, or a perceived lack 21 thereof, in determining that full resentencing was not required. In particular, although the 22
court wrote in its decisions as to each defendant that it limited its cons ideration of “anything 23 it ha[d] learned about the defendant[s] since th e time of the original sentencing” to that 24 permissible “[w]ithin the structure of the Crosby remand,” it concluded: 25 [A]lthough in some cases defendants who have had time for reflection 26 undergo positive changes, the court has received no submission that 27 persuades it that such a possibility ex ists here. Consequently, the court 28 concludes that defendant’s senten ce would not have differed at all 295 from that imposed, much less differed in a non-trivial manner and that 1 a hearing is not required and would not be helpful. 2
3 Order: The Request for Post-Booker Resentenci ng as to Jerkeno Wallace [ECF No. 657], at 4 *4-*5, United States v. Thomas , No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014); Order: The 5 Request for Post-Booker Resentencing as to Negus Thomas [ECF No. 658], at *4-*5, United 6
States v. Thomas , No. 3:02-cr-00072-AWT (D. Conn. May 14, 2014). On this record, 7 therefore, we cannot be confident th at the District Court’s first-stage Crosby decision was not 8 improperly informed by a perceived lack of post-sentencing remo rse or rehabilitation. 2 9
Accordingly, we remand the causes in a ccordance with the procedures set forth in 10 United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994), with directions to the District Court 11 that it issue orders clarifying whether, withoutconsidering the absence of evidence of post12 sentence remorse and rehabilitation, it woul d have reached the same decisions not to 13
resentence defendants

. Within fourteen days of the entr y of the District Court’s responsive 14 orders, any party to those proceedings may restor e the causes to this panel by giving notice 15 of a renewed appeal to the Clerk of Court. 16

* * * 17
The causes are hereby REMANDED to the District Court for further proceedings 18 consistent with this opinion. 19

FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk of Court 21

2 Defendants’ reliance on Pepper v. United States , 131 S. Ct. 1229 (2011), is unavailing. In Pepper , the Supreme Court held only that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of pos t-sentencing rehabilitation and that such evidence may support a downward variance from the Sentencing Guidelines. See id. at 1236. The Pepper Court expressly excluded from the scope of its holdi ng those “limited remands by the Courts of Appeals” of the type contemplated in Crosby

. See id. at 1249 n.17; see also United States v. Bernardo Sanchez , 569 F.3d 995, 1000 (9th Cir. 2009).