1 16-3461-cr United States v. Kent 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Co urthouse, 40 Foley Square, in the City of New York, on the 5 th day of October, two thousand seventeen.
Present: D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , Circuit Judges , J ED S. R AKOFF , District Judge .*

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 16-3461-cr
T HOMAS J EFFERSON K ENT , also known as Sealed Defendant 1, also known as Daryl Walker, Defendant-Appellant ,

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.2 S ANFORD G OTTESMAN , also known as Sealed Defendant 2, B RAD R OBINSON , also known as Sealed Defendant 3, B ENO M ATTHEWS , also known as Sealed Defendant 4, Defendants

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_____________________________________ For Defendant-Appellant: Yuancheng Lee, Of Counsel, Federal Defenders of New York, Inc., New York, NY. For Appellee: Paul M. Monteleoni , Karl Metzner, Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Sout hern District of New York, New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Forrest, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Thomas Jefferson Kent plead ed guilty to one coun t of conspiring to commit wire fraud in violation of 18 U.S.C. § 3571. On July 25, 2014, the district court, applying a § 3B1.1(a) enhancement pursuant to the United States Se ntencing Guidelines (“Guidelines”), sentenced Kent to 78 months’ imprisonment. This initial sentence was at the top of the Guidelines range calculated by the di strict court. But the district court explained during the sentencing proceeding that the Guidel ines range is “advisory only,” and that the “ultimate sentence is determined by the various factors under [18 U.S.C. §] 3553(a).” J.A. 70. We vacated Kent’s initial sent ence and remanded for resentencing because the district court did not make the required fi ndings for applying the § 3B1.1(a) enhancement. United States v. Kent , 821 F.3d 362, 371 (2d Cir. 2016). On Septembe r 30, 2016, the district court conducted a resentencing hearing and imposed the same aggr egate 78-month sentence, but this time without3 applying the § 3B1.1(a) enhancement. As a result, the same 78-month sentence became an above-Guidelines sentence upon resentencing. Kent appeals from that September 30, 2016 resentencing and contends that the district c ourt’s decision to impose such a sentence was vindictive and substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal.
* * * First, relying on North Carolina v. Pearce , 395 U.S. 711 (1969), Kent argues that the sentence he received on remand was improper b ecause it was imposed by the district court in retaliation for his su ccessful appeal. Pearce held that due process precludes a judge from increasing a defendant’s senten ce on remand out of “vindictiven ess against a defendant for having successfully attack ed his first conviction,” and that where a judge imposes “a more severe sentence” after appeal based only on factors pres ent prior to the first se ntence, vindictiveness may be presumed. Id. at 725–26; see also United States v. Weingarten , 713 F.3d 704, 713 (2d Cir. 2013) (quoting United States v. Goodwin , 457 U.S. 368, 374 (1982)). A presumption of vindictiveness would not be appropriate in this case. We note at the outset that Pearce is not directly applicable here because Kent received the same sentence on remand that he had received initiall y, not a higher one. Kent argues that his sentence nevertheless should be treated as a “more severe” sentence because his case resembles one in which a court increases the sentence on remaining counts after vacatur of a count of conviction. See Weingarten , 713 F.3d at 710–11. Although his single count of conviction was not vacated, Kent contends that his vacated Guidelines enhancement is “functionally equivalent” to a vacated count of conviction. Def.-Appellant Br. 22. But a Guidelines adjustment does not affect “the exte nt of the harm legally attributable to the4 defendant” in the same way a vaca ted count of conviction does. Weingarten , 713 F.3d at 715. Here, resentencing entailed a new Guidelines analysis, but one clearly related to and not independent of the first. In such circum stances, Kent’s case is more analogous to those cases involving the vacatur of related counts. And “[w]here one or more of several related counts have been vacated, and the district co urt on resentencing has increased the sentence on the remaining, related counts to maintain the same aggregate sentence as before, no presumption of vindictiveness applies.” Id. at 714. Nor is this a case presenting any prospect of actual vindictiveness upon resentencing. Id . at 715 (rejecting actual vindictiveness in part because the “district court’s conclusion that its initial aggregate sentence was still appropriate is understandable”); United States v. Hornick , 963 F.2d 546, 547 (2d Cir. 1992) (upholding resentencing because “[t]he original sentence was thus a reflection of the district c ourt’s assessment of the aggregate gravity of Hornick’s crimes, not a sum arrived at through di screte consideration of distinct crimes”). Here, as in Hornick , “[t]he propriety of the resentence was implicit in our prior opinion.” 963 F.2d at 547. We noted in our prior opinion the possibility that the district court, after taking account of the procedural error we identified, might “impose[] th e same sentence in any event,” but determined that because we could not know whether the district court would do so, remand for resentencing was proper. Kent , 821 F.3d at 371. We have previously upheld new sentences imposing the same aggregate senten ce upon resentencing in similar circumstances. See, e.g. , Weingarten , 713 F.3d at 711–12 (upholding new se ntence that imposed the same aggregate sentence after vacating a related count of conviction); United States v. Chaklader , 232 F.3d 343, 346–47 (2d Cir. 2000) (upholding new sentence that imposed the same aggregate sentence by reapportioning original sentence between the underlying offenses and5 the sentencing enhancement after a mist ake in calculating the initial sentence); Hornick , 963 F.2d at 546–47 (upholding new sentence that im posed the same aggregate sentence after remanding because a sentencing enhancement was improperly applied). Finally, we do not agree with Kent that hi s sentence was substantively unreasonable. The standard of review for substantive reason ableness is a “deferential abuse-of-discretion standard,” United States v. Cavera , 550 F.3d 180, 194 (2d Cir. 2008) (e n banc), and we set aside a district court’s sentencing judgment only in the “proverbial ‘rare case’” of a sentence that is “shockingly high” or “otherwise unsupportable as a matter of law,” United States v. Rigas , 583 F.3d 108, 122 (2d Cir. 2009). The district cour t’s imposition of a 78-month sentence (15 months greater than the top end of the calculated Guidelines range) cannot in the circumstances here be deemed either shocking or even unusual, especially because a reviewing court “may not apply a presumption of unreasonableness” simply because a sentence is out side the Guidelines
range. United States v. Pope , 554 F.3d 240, 246 (2d Cir. 2009) (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). After all, “sentencing discretion is like an elevator in that it must run in both directions . . . [so] di strict courts have the power to impose sentences both above and below the Guidelines range.” Cavera , 550 F.3d at 194. Furthermore, “a district court’s decision to vary from the Guidelin es ‘may attract the greatest respect when the sentencing judge finds a particular case outs ide the “heartland” to which the Commission intends individual Guidelines to apply.’” Id. at 193 (citation omitted). Here, the district court made the explicit finding that “[t]he Court does not believe that this particular offense was within the heartland of the guidelines.” J.A. 188. The district court also explaine d in depth its application of th e 18 U.S.C. § 3553(a) factors, and why it viewed this crime as “o utside the ‘heartland.’” J.A. 186–90. “[W]e must defer heavily6 to the expertise of district judges . . . [and so w]e do not consider what weight we would ourselves have given a particular factor.” Cavera , 550 F.3d at 191. Based on the record before us, there is no ev idence of presumed or actual vindictiveness, and the district court’s decision to impose the same 78-month sent ence at Kent’s resentencing was substantively reasonable. We have consid ered Kent’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk