12-1644-cr(L), 12-1654-cr(CON) United States v. Moore 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 17 th** **day of January, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **RAYMOND J. LOHIER, JR.,** 7 **CHRISTOPHER F. DRONEY,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 13 **Appellee ,**  14 15 **-v.- Nos. 12-1644-cr(L), 12-1654-cr(CON)** 16 17 **NAQUAN HORNE, also known as Vincent** 18 **Horne, CHRISTOPHE LEE, also known as** 19 **Christopher Lee, WAYNE SCOTT,** 20 21 **Defendants ,**  22 23 **and** 24 25 **KENNETH MOORE** 26 27 **Defendant-Appellant .**  28 - - - - - - - - - - - - - - - - - - - -X 29 1**FOR DEFENDANT-APPELLANT:** STEVEN Y. YUROWITZ, New York, 1 NY. 2 3 **FOR APPELLEE:** ANDREA L. SURRATT (Brent S. 4 Wible, on the brief ) forPreet 5 Bharara, United States Attorney 6 for the Southern District of New 7 York. 8 9 Appeal from a judgment of the United States District 10 Court for the Southern District of New York (Forrest, J. ). 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 12

**AND DECREED**that the judgment of the district court be 13

**AFFIRMED** . We **REMAND** only to allow the district court to 14 amend the Statement of Reasons (“SOR”) in order to 15 memorialize therein its orally stated reasons for imposing 16 the sentence, as required by 18 U.S.C. § 3553(c)(2). 17 Kenneth Moore appeals from the district court’s 18 sentence of 120 months’ imprisonment for Hobbs Act robbery, 19 conspiracy to commit Hobbs Act robbery, and two counts of 20 possession of a firearm as a felon. We assume the parties’ 21 familiarity with the underlying facts, the procedural 22 history, and the issues on appeal. 23 1. Fed. R. Crim. P. 32(h). Federal Rule of Criminal 24 Procedure 32(h) provides: 25 Before the court may depart from the applicable 26 sentencing range on a ground not identified for 27 departure either in the presentence report or in a 28 party’s prehearing submission, the court must give the 29 parties reasonable notice that it is contemplating such 30

2a departure. The notice must specify any ground on 1 which the court is contemplating a departure. 2 Rule 32(h)’s notice requirement applies only to 3 “departures,” not to “variances.” SeeIrizarry v. United 4
States , 553 U.S. 708, 714-16 (2008). “While the terms . . . 5 are often used interchangeably to describe deviations from 6 the recommended Guideline range, . . . a ‘departure’ refers 7 to a decision by the District Court to impose a sentence 8 outside the otherwise applicable Sentencing Guidelines range 9 pursuant to a provision of the Guidelines . A ‘variance,’ on 10 the other hand, describes the District Court’s power 11 pursuant to 18 U.S.C. § 3553(a) to impose a sentence outside 12 of the otherwise applicable Guidelines range , which we call 13 a ‘non-Guidelines sentence.’” United States v. Keller , 539 14 F.3d 97, 99 n.2 (2d Cir. 2008) (emphasis added) (citations 15 omitted). 16 Because Moore did not object at sentencing, we consider 17 whether there was “(1) [an] ‘error,’ (2) that is ‘plain,’ 18 and (3) that ‘affect[s] substantial rights.’” Johnson v. 19 United States , 520 U.S. 461, 466-67 (1997) (quoting United 20 States v. Olano , 507 U.S. 725, 732 (1993)). “If all three 21 conditions are met, [we] may then exercise [our] discretion 22 to notice a forfeited error, but only if (4) the error 23 ‘seriously affect[s] the fairness, integrity, or public 24

3reputation of judicial proceedings.’” Id. (quoting Olano , 1 507 U.S. at 732 (other internal quotation marks omitted)). 2 Moore’s claims do not withstand plain error review. 3 The district court alluded to “departure” twice during 4 the sentencing hearing, and never used the word “variance.” 5 Viewed in context, however, it is clear enough that the 6 court was imposing a non-Guidelines sentence. SeeKeller , 7 539 F.3d at 100 (“While the record shows that the District 8 Court used both ‘departure’ and ‘non-[G]uideline[s] 9 sentence’ to describe the sentence it imposed, it is also 10 clear from the record that the District Court relied on its 11 power under § 3553(a)--and not on any Guidelines provision-- 12 as a basis for the seven-level ‘departure.’”). 13 The context is as follows: At sentencing, the Judge 14 never mentioned a specific Guidelines provision that would 15 support a departure; she explained more than once that the 16 Guidelines were advisory, that she had discretion to 17 sentence Moore up to the statutory maximum, and that the 18 advisory range was too low; she emphasized the importance of 19 the § 3553 factors, including Moore’s offense conduct and 20 criminal history, and the need for deterrence and 21 rehabilitation; she observed that Moore’s statement of 22 remorse induced her to reduce her sentence, and was 23 “actually down by over a year from where I started out this 24

4morning.” These circumstances all confirm that she was 1 imposing a non-Guidelines sentence rather than implementing 2 unspecified departures. 3 The court did check off three specific departures in 4 its SOR. But the court also checked off boxes in a section 5 dedicated to a non-Guidelines sentence. The overall intent 6 of the SOR is therefore ambiguous. However, “[i]t is well 7 settled, as a general proposition, that in the event of 8 variation between an oral pronouncement of sentence and a 9 subsequent written judgment, the oral pronouncement 10 controls.” United States v. Rosario , 386 F.3d 166, 168 (2d 11 Cir. 2004). Because the sentencing hearing, in context, 12 reflects an intention to impose a non-Guidelines sentence, 13 that intention obviates the SOR’s inconsistencies. 14 The district court’s “clarification” hearing, held two 15 days after Moore filed notice of appeal, removed any doubt. 16 Judge Forrest explained that her references to “departure” 17 were mistaken and that she intended a non-Guidelines 18 sentence. “While an effective notice of appeal does divest 19 the district court of its control over those aspects of the 20 case involved in the appeal, a district court still may act 21 in aid of the appeal.” United States v. Nichols , 56 F.3d 22 403, 411 (2d Cir. 1995) (internal quotation marks omitted). 23 Nicholsallowed a “district court [to] simply clarif[y]

. . 24

5. its finding . . . , thereby aiding this court in avoiding 1 unnecessary construction of a statute and a possible remand , 2 the outcome of which would have been a foregone conclusion .” 3 Id. (emphasis added). As in Nichols , the court acted to 4 clarify an ambiguous ruling and to avoid an unnecessary 5 remand premised solely on that ambiguity. 6 In any event, the hearing reconfirms what is already 7 clear from a contextual reading of the sentencing hearing 8 transcript: Judge Forrest intended a variance. Therefore, 9 the lack of Rule 32(h) notice did not constitute plain 10

error. 11 At the same time, however, the stated sentencing 12 reasons are not memorialized in the SOR, as required by 18 13 U.S.C. § 3553(c)(2). “‘[W]hile a remand to the district 14 court solely for the purpose of complying with section 15 3553(c)(2) will not result in any change in the conviction 16 or sentence[,] . . . a written statement of reasons is 17 beneficial because the Bureau of Prisons consults the 18 written judgment of conviction, which may contain 19 information relevant to a defendant’s service of sentence.’” 20 United States v. Verkhoglyad , 516 F.3d 122, 133-34 (2d Cir. 21 2008) (quoting United States v. Hall , 499 F.3d 152, 154-55 22 (2d Cir. 2007)). Accordingly, although we do not identify 23 any procedural error warranting resentencing, we remand for 24

6the district court to file with the U.S. Sentencing 1 Commission a revised SOR to comply with 18 U.S.C. § 2 3553(c)(2) and 28 U.S.C. § 994(w)(1)(B). 3 2. Substantive Reasonableness. “Reasonableness 4 review does not entail the substitution of our judgment for 5 that of the sentencing judge. Rather, the standard is akin 6 to review for abuse of discretion. Thus, when we determine 7 whether a sentence is reasonable, we ought to consider 8 whether the sentencing judge exceeded the bounds of 9 allowable discretion, committed an error of law in the 10 course of exercising discretion, or made a clearly erroneous 11 finding of fact.” United States v. Fernandez , 443 F.3d 19, 12 27 (2d Cir. 2006) (internal quotation marks and citation 13 omitted); see alsoUnited States v. Rigas , 583 F.3d 108, 123 14 (2d Cir. 2009) (reasonableness review is “deferential to 15 district courts and provide[s] relief only in the proverbial 16 ‘rare case’” that “damage[s] the administration of justice 17 because the sentence imposed was shockingly high, shockingly 18 low, or otherwise unsupportable as a matter of law”). 19 The district court’s sentence of 120 months’ 20 imprisonment was by no means “shockingly high,” 21 “unsupportable as a matter of law,” or beyond the bounds of 22 discretion. Moore’s history reflects multiple robberies and 23 instances of firearm possession. He participated in a 24

7robbery in which guns were aimed at two victims, one an 1 infant. The Pre-Sentence Report indicates multiple 2 incidents of misconduct while Moore was housed at the 3 detention complex and awaiting conviction. 4 Judge Forrest’s evaluation of the sentencing factors 5 was reasonable. There is no reason to disturb the sentence 6 on appeal. 7 We have considered all of Moore’s remaining arguments 8 and conclude that they are without merit. The judgment of 9 the district court is hereby affirmed. We remand only to 10 permit the district court to correct the SOR. 11 12 FOR THE COURT: 13 CATHERINE O’HAGAN WOLFE, CLERK 14

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