14-1210 United States v. Baires UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NO T HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FE DERAL RULE OF APPE LLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WI TH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WIT H THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Se cond Circuit, held at 1 the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New 2 York, on the 29 th day of January, two thousand sixteen. 3 4 PRESENT: 5 GUIDO CALABRESI, 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9

___________________ __________________ 10 11 UNITED STATES OF AMERICA, 12 Appellee, 13 14 v. No. 14-1210-cr 15 16 JOSE BARRERA, AKA Travieso, KEVIN 17 CARDONA, AKA Stalker, RUDY 18 GUEMBES-LORENA, AKA Darky, CARLOS 19 HERNANDEZ, AKA Morro, ABRAHAM 20 IRAHETA, AKA Lobo, ALEX MACHADO, 21 AKA Negro, CHRISTIAN MERINO, AKA 22 Casper, NELSON QUINT EROS, AKA Sonic, 23 Defendants, 24 25 WILBER BAIRES, AKA Doofy, 26 Defendant-Appellant, 27

___________________ _________________ 282 FOR APPELLEE: DARREN A. LAVERNE, Assistant 1 United States Attorney (Susan Corkery, 2 Assistant United States Attorney, on the 3 brief ), for Robert Capers, United States 4 Attorney for the Eastern District of New 5 York, New York, NY. 6 7 FOR DEFENDANT-APPELLANT: DANIEL S. NOOTER, Washington, DC. 8 9 Appeal from the United States District C ourt for the Eastern District of New York 10 (William F. Kuntz, II, Judge ). 11 12 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, 13 AND DECREED that the judgment of the district court is REMANDED for further 14 proceedings consistent with this order . 15 Defendant-Appellant Wilber Baires appeal s from a judgment of conviction entered 16 on April 16, 2014 in the United States District Court for the Eastern District of New York 17 after he pled guilty to conspi racy to commit assault with a dangerous weapon in aid of 18 racketeering, in violation of 18 U.S.C. § 1959(a)(6). Baires challenges his sentence, 19 which was above the advisory U.S. Sentencing Guidelines range, as both procedurally and 20 substantively unreasonable. We assume the parties’ familiar ity with the underlying facts 21 and procedural history of the case. 22
Baires and nine co defendants were charged in an indictment alleging activities 23 relating to a chapter of the Mara Salvatruch a (“MS-13”) gang. Baires himself was named 24 only in a single count charging conspiracy to assault members of a rival gang with 25 dangerous weapons from 2007 through 2011. Acco rding to the Presentence Investigation 26 Report (“PSR”), Baires participated in planni ng an attack on members of a rival gang in 273 January 2011; the plan was fore stalled by the police, and the attack was never carried out. 1 Although no other specific incidents were men tioned in the PSR, Baires allocuted more 2 generally to agreeing with other MS-13 memb ers to assault members of rival gangs during 3 the period charged. The PSR calculated the applicable guidelines range as 24 to 30 4 months, and neither the PSR nor the govern ment suggested any reason to impose a 5 sentence in excess of that range. The district court adopted the PSR’s factual statements 6 and guidelines analysis, but ne vertheless imposed an above-guidelines sentence of 36 7 months’ imprisonment, the maximum possible sentence under the statute. 8 At the sentencing hearing, the district c ourt stated only the following rationale for 9 the sentence: “Given th e nature of the offense and your circumstances this court imposes a 10 sentence of 36 months. That appears to be sufficient but not greater than necessary to 11 comply with the pu rposes set forth in 18 U.S.C. Section 3553(a).” The court did not 12 discuss any particular § 3553(a) factors, identif y any particular factual findings that formed 13 the basis for its decision to impose a sentence above the guidelines range, or articulate a 14 rationale for the sentence chosen. 15 We review the reasonableness of a senten ce under a “deferential abuse-of-discretion 16 standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A district court commits 17 procedural error where it fails to calculat e (or improperly calculates) the Sentencing 18 Guidelines range, treats the Sent encing Guidelines as mandatory , fails to consider the [18 19 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails 204 adequately to explain the chosen sentence.” United States v. Morrison, 778 F.3d 396, 399 1 (2d Cir. 2015) (alteration in original), quoting United States v. Robi nson, 702 F.3d 22, 38 2 (2d Cir. 2012). A district court is required, under 18 U.S.C. § 3553(c), to “state in open 3 court the reasons for its imposition of [a] par ticular sentence.” Baires challenges the 4 procedural reasonableness of his sentence becau se the district court did not adequately 5 explain its reasons for imposing the sentence , which exceeds the highest point of the 6 applicable guidelines range. 7 We conclude that the district court plainl y did not meet its obligation to state its 8 reasons for imposing its sentence, partic ularly one that exceeds the guideline 9 recommendation. Because Baires did not raise th e error at sentencing, we review only for 10 plain error, United States v. Cassesse, 685 F. 3d 186, 188 (2d Cir. 2012), for which we may 11 reverse only if we find that an error affects a defendant’s substantial rights. We have held 12 that when the district court’s statements at sentencing provide an insufficient basis for a 13 reviewing court to determine the reason that th e district court imposed the sentence, that 14 error affects a defendant’s substantial rights. United States v. Lewis, 424 F.3d 239, 247 15 n.5 (2d Cir. 2005). See also United States v. Fama, __ F. App’x __, 2016 WL 2 77750 (2d 16 Cir. Jan. 22, 2016). Certainly where, as he re, the district court gave absolutely no 17
indication as to its reasons for the sentence imposed, we have no meaningful basis upon 18 which to review the reasonableness of the sentence. 1 19

1 Baires also challenges his sentence as substant ively unreasonable. Absent an explanation of the reasons why the sentence was imposed, we can not (and thus do not) ev aluate that claim.5 Moreover, the failure to explain a senten ce can “seriously affect the . . . public 1 reputation of judicial proceedi ngs,” United States v. Olano, 507 U.S. 725, 736 (1993) 2 (internal quotation marks and a lteration omitted). The failure to explain a sentence leaves 3 the public, and the defendant, in the dark ab out why a particular punishment is imposed; 4 particularly when the sentence is outside the norm, unwarranted speculation that the 5 sentence may have been chosen for ina ppropriate reasons may be unnecessarily 6 encouraged. 7 Accordingly, we remand with instructions to vacate Baires’s sentence and conduct 8 resentencing proceedings. In view of the time that has passed since the sentence was 9 imposed, and the relatively short time remainin g on the sentence, we expect the district 10 court to proceed with the utmo st expedition in resentencing. In the interest of such 11 expedition, this panel will reta in jurisdiction over any subseque nt appeal, see United States 12 v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), and should there be such an appeal, the parties 13 should request expedited briefing and argument . Accordingly, the judgment of the district 14
court is REMANDED for further proceedings consistent with this order. The mandate 15 shall issue forthwith. 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18