22-2118-cr

United States v. Smith

UNITED STATES COURT OF APPEALS

FOR THE SECOND 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 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 for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 21st day of March, two thousand twenty-four. 

PRESENT: JOSÉ A. CABRANES, 

RICHARD C. WESLEY,

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

------------------------------------------------------------------

UNITED STATES OF AMERICA, 

Appellee-Cross-Appellant, 

v. Nos. 22-2118-cr, 

22-2217-cr, 

22-2823-cr

REDDELL SMITH,

 

Defendant-Appellant-Cross-Appellee. *

------------------------------------------------------------------

* The Clerk of Court is directed to amend the caption as set forth above.
2 

FOR APPELLEE: RAJIT SINGH DOSANJH, 

Assistant United States 

Attorney (Nicolas 

Commandeur, Assistant 

United States Attorney, on the 

brief), for Carla B. Freedman, 

United States Attorney for the 

Northern District of New York, 

Syracuse, NY 

FOR APPELLANT: GWEN MARTA SCHOENFELD, 

Law Office of Gwen M. 

Schoenfeld, LLC, New York, 

NY

Appeal from judgments of the United States District Court for the 

Northern District of New York (Frederick J. Scullin, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgments of the District Court are AFFIRMED in part 

and VACATED in part, and the case is REMANDED for further proceedings 

consistent with this order. 

Defendant-Appellant-Cross-Appellee Reddell Smith appeals from 

amended judgments of the United States District Court for the Northern District 

of New York (Scullin, J.) following a remand by this Court for resentencing on 

Smith’s conviction for racketeering conspiracy and violation of supervised 

release. See United States v. Hopper, No. 19-3087-CR, 2022 WL 1566258, at *4 (2d 
3 

Cir. May 17, 2022). On appeal, Smith argues that the District Court procedurally 

erred in determining his sentence. The Government cross-appeals, arguing that 

the District Court erred under Federal Rule of Criminal Procedure 35(a) when, 

after the resentencing hearing, it changed Smith’s prison term for his supervised 

release violation to run concurrently rather than consecutively with his prison 

term for his racketeering conspiracy charge. We assume the parties’ familiarity 

with the underlying facts and the record of prior proceedings, to which we refer 

only as necessary to explain our decision. 

I. Procedural Reasonableness 

As an initial matter, we note that Smith does not challenge the length of his 

prison term for the 2018 RICO conspiracy or for his violation of supervised 

release. We therefore consider only Smith’s claim that the District Court 

misunderstood both the amount of time Smith would serve on his state sentence 

and its own authority to order his federal prison terms to run concurrently with 

his state prison term. In addressing each of these claims of procedural error, we 

keep in mind that where, as here, a defendant fails to raise a procedural 

challenge at the time of sentencing, we review only for plain error. United States 

v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). “A sentence is procedurally 
4 

unreasonable if the district court fails to calculate (or improperly calculates) the 

Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, 

fails to consider the § 3553(a) factors, selects a sentence based on clearly 

erroneous facts, or fails adequately to explain the chosen sentence.” United States 

v. Smith, 949 F.3d 60, 66 (2d Cir. 2020) (quotation marks omitted).

Smith first argues that the District Court procedurally erred by basing his

sentence on an inaccurate assessment of the time that Smith would serve in state

prison for his separate state assault charge. During Smith’s resentencing hearing, 

the District Court, referring to Smith’s state prison sentence, stated that “it will 

be a short period of time before you’re back on the street.” Sp. App’x 23. Smith 

contends that this was error because he faced a seven-year state prison term, 

which “is a long time.” Appellant’s Br. 21. Smith’s argument is unavailing. 

Although the District Court stated that Smith would be released in a “short 

period of time,” the court repeatedly confirmed its awareness of the length of 

Smith’s state prison term. For example, Judge Scullin stated that “I'm aware that 

you do have state prison to serve.” Sp. App’x 23. And in response to Smith’s

statement that he has “seven years to do in the state,” Judge Scullin responded, 

“I know.” Id. The District Court also noted that it had reviewed “all [of] the 
5 

submissions made by counsel,” Sp. App’x 19, including a submission noting 

Smith’s seven-year state sentence. At best, as Smith concedes, “it is not clear 

what the district court meant” by its statement. Appellant’s Br. 21. For these 

reasons, we conclude that it did not commit plain error. 

Smith adds that the District Court’s assertion that it had “nothing to do 

with the state sentence” suggests that the court misunderstood its discretion to

impose concurrent federal and state sentences. Appellant’s Br. 22. We disagree. 

At the resentencing, the District Court confirmed that it was “aware” that it 

could impose concurrent sentences. Sp. App’x 11–12. The Government’s 

sentencing submission also informed the District Court that concurrent federal 

and state sentences was an option. Smith’s challenge thus fails. 

II. Rule 35(a) 

The Government cross-appeals, arguing that the District Court 

procedurally erred “under Rule 35(a) . . . when, two weeks after Smith’s 

resentencing and revocation hearing, it ordered Smith’s revocation term of 

imprisonment to run concurrently[,]” rather than consecutively to his prison 

term for his racketeering conspiracy charge. Appellee’s Br. 61. Rule 35(a) 

“authorizes correction only of obvious errors, and was not meant to allow the 
6 

district court to reopen issues previously resolved at the sentencing hearing 

through the exercise of the court’s discretion with regard to the application of the 

sentencing guidelines, or to reconsider the application or interpretation of the 

sentencing guidelines, or simply to change its mind about the appropriateness of 

the sentence.” United States v. DeMartino, 112 F.3d 75, 79 (2d Cir. 1997) (cleaned 

up) (discussing former Rule 35(c), now Rule 35(a)). “[A] district court’s second 

thoughts with regard to the severity of the defendant’s sentence, no matter how 

well intentioned, are not the sort of error that Rule [35(a)] was designed to 

remedy.” Id. (quotation marks omitted). 

 Here, two weeks after Smith’s resentencing hearing, the District Court’s 

staff emailed the parties that “[a]fter reviewing the Judgment and Commitment, 

the Judge is reconsidering his sentence of having the defendant’s violation 

sentence run consecutively with the sentence in [the racketeering conspiracy 

charge], and instead would have it run concurrently.” Gov. App’x 003 (emphasis 

added). Smith did not object; the Government, however, maintained that it 

would be “procedurally improper” to modify the announced sentence at that 

time. Id. The District Court then issued a text order stating: “Pursuant to Rule 

35(a), the Court hereby corrects Defendant Reddell Smith’s sentence, which was 
7 

imposed in clear error and hereby ORDERS that Defendant’s sentence [for his 

violation of supervised release charge] shall run concurrently with the sentence 

[for his racketeering conspiracy charge].” App’x 15. This violated Rule 35(a). 

Following our earlier remand, the District Court pronounced that Smith’s 

sentences would run consecutively. The District Court confirmed its ruling in a 

text order dated August 30, 2022. Without identifying any legal error, the 

District Court later stated that it was “reconsidering” Smith’s sentence and soon 

thereafter imposed concurrent federal sentences. Gov. App’x 003. Rule 35 

prohibits a sentencing court from modifying a sentence “simply because further 

reflection has caused it to have a change of heart.” United States v. Abreu-Cabrera, 

64 F.3d 67, 69 (2d Cir. 1995). 

 We accordingly vacate the District Court’s order imposing a concurrent 

sentence and remand to the District Court for it to impose the consecutive 

sentence it pronounced at Smith’s resentencing hearing. See id. at 76. 
8 

We have considered the parties’ remaining arguments and conclude that 

they are without merit. For the foregoing reasons, the judgment of the District 

Court is AFFIRMED in part and VACATED in part, and the case is REMANDED 

for further proceedings consistent with this order. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court