*By a motion dated January 4, 2012, the appellant requested that any order of this Court with regard to this case appear under the caption “ L.M. v. United States ” and that the name of the appellant not be specified. The government has not opposed the motion. The motion is granted. 10-371-cr United States v. L.M.
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**AMENDED 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 Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 17 thday of January, two thousand and 4 twelve. 5 6 PRESENT: JOSEPH M. McLAUGHLIN, 7 JOSÉ A. CABRANES, 8 RICHARD C. WESLEY, 9 Circuit Judges

. 10 11 12 13 L.M., * 14 15 Defendant-Appellant , 16 17 -v.- 10-371-cr 18 19 UNITED STATES OF AMERICA, 20 21 Appellee. 22 23 24 FOR APPELLANT: ELIZABETH E. MACEDONIO, Bayside, New 25 York. 262 FOR APPELLEE: BURTON T. RYAN, Assistant United States 1 Attorney (David C. James, Assistant 2 United States Attorney, on the brief) , 3 forLoretta E. Lynch, United States 4 Attorney for the Eastern District of New 5 York, Brooklyn, New York. 6 7 Appeal from the United States District Court for the 8 Eastern District of New York (Platt, J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 11

**AND DECREED**that the judgment imposing an incarceratory 12 sentence of one year and one day is **VACATED** . We **REMAND**for 13 resentencing proceedings consistent with this order. 14 L.M. appeals from a judgement of the United States 15 District Court for the Eastern District of New York imposing 16 an incarceratory sentence of one year and one day. We 17 assume the parties’ familiarity with the underlying facts, 18 the procedural history, and the issues presented for review. 19

**BACKGROUND** 20 The facts here are undisputed. L.M. began distributing 21 marijuana in the 1980s. He eventually came to the attention 22 of law enforcement, who executed a search warrant on his 23 home and confiscated ten pounds of marijuana. 24 That arrest was the genesis of a long and fruitful 25 cooperation with authorities. L.M. provided information 26 that led to the arrests and successful prosecutions of a 273 number of large-scale international drug dealers. In 1 addition, he recorded his conversations with various members 2 of drug distribution organizations and made himself 3 available as a trial witness. Because of his extensive 4 assistance to law enforcement, L.M. received a number of 5 credible threats of violence; to ensure his safety, 6 authorities installed a panic button in his home. As the 7 government conceded at oral argument, L.M. “uniquely earned” 8 the government’s motion pursuant to Section 5K1.1 of the 9 United States Sentencing Guidelines urging a downward 10 departure. 11 Letters submitted on L.M.’s behalf, if credited, show 12 that his arrest also marked the beginning of an admirable 13 personal transformation. In the nearly seventeenyears that 14 have elapsed since his arrest, he has built both a family 15 and a business. His wife of twenty-seven years describes 16 him as a devoted husband and a loving father to their four 17 children, and a colleague reports that L.M. is a widely18 respected and fair boss who dramatically reduced his own 19 salary in the economic downturn to avoid laying off 20 employees. Further, letters from L.M.’s father and sister 21 describe L.M. as a compassionate son and brother, a man who 22 cared for them through their long illnesses. 234 L.M. pleaded guilty to one count of conspiracy to 1 distribute marijuana and one count of filing a false tax 2 return. The suggested Guidelines range was forty-six to 3 fifty-seven months of incarceration. With little 4 explanation, the district court imposed an incarceratory 5 sentence of one year and one day. Two weeks later, L.M. 6 filed a motion for reconsideration, which the district court 7 denied. L.M. now appeals the district court’s sentence as 8 procedurally and substantively unreasonable. 9

**DISCUSSION** 10 We review the sentence imposed by the district court to 11 ascertain whether it is reasonable. Gall v. United States, 12 552 U.S. 38, 46-47 (2007); United States v. Cavera , 550 F.3d 13 180, 187-88 (2d Cir. 2008) ( en banc ). Reasonableness review 14 is “akin to review for abuse of discretion.” United States 15 v. Fernandez , 443 F.3d 19, 27 (2d Cir. 2006). Our review 16 for reasonableness has both procedural and substantive 17 components. See, e.g. , Cavera , 550 F.3d at 189. 18 L.M. first contends that his sentence is procedurally 19 unreasonable for two principal reasons: (1) the district 20 court did not properly consider the factors set forth in 18 21 U.S.C. § 3553(a) in fashioning its sentence; and (2) the 22 district court did not adequately explain its sentence as 235 mandated by 18 U.S.C. § 3553(c). We address only the second 1 argument here. A sentence is procedurally unreasonable if, 2 among other things, the lower court fails to adequately 3 explain the basis for the sentence it imposed. See, e.g. , 4 United States v. Johnson , 567 F.3d 40, 51 (2d Cir. 2009). 5 Requiring the district court to articulate the reasons for 6 its sentence (1) “helps to ensure that [it] actually 7 consider[s] the statutory factors and reach[es] [a] reasoned 8 decision[]”; (2) “promote[s] the perception of fair 9 sentencing”; and, most importantly, (3) assures “meaningful 10 appellate review.” Cavera , 550 F.3d at 193 (internal 11 quotation marks omitted). 12 The district court did not adequately explain its 13 sentence. Particularly troubling, given the passage of 14 fifteen years between L.M.’s arrest and sentencing, is the 15 court’s failure to discuss the extent to which it considered 16 evidence of L.M.’s rehabilitation in fashioning its 17

sentence. See United States v. Hernandez , 604 F.3d 48, 55 18 n.4 (2d Cir. 2010). Of course, the district court simply 19 might not have credited L.M.’s claims of rehabilitation, see 20 United States v. Preacely , 628 F.3d 72, 85 (2d Cir. 2010) 21 (Lynch, J., concurring), or it might have believed the 22 seriousness of L.M.’s crime outweighed even the most 236 compelling evidence of rehabilitation. However, given the 1 paucity of the district court’s explanation, we cannot be 2 sure that the district court arrived at a reasoned decision 3 over which we can meaningfully exercise appellate review. 4 For this reason, we vacate the sentence imposed by the 5 district court as procedurally unreasonable. 6 Because we determine that the sentence imposed on L.M. 7 is procedurally unreasonable, we do not address the thorny 8 issue of whether, under the unique circumstances of this 9 case, an incarceratory sentence of one year and one day is 10 substantively unreasonable. On remand, the district court 11 shall have plenary authority to impose a sentence consistent 12 with law. We further elect to remand in accordance with the 13 procedures set forth in United States v. Jacobson , 15 F.3d 14 19, 22 (2d Cir. 1994). Either party may restore 15 jurisdiction to this Court to consider whatever arguments 16 remain or arise relating to L.M.’s resentencing by sending a 17 letter to the Clerk of the Court within 14 days of the 18 district court’s decision. Any such proceedings will be 19 assigned to this panel. 20 After a thorough and searching review of the record, we 21 find L.M.’s remaining arguments to be meritless. 22 237 For the foregoing reasons, the judgment of the district 1 court imposing an incarceratory sentence of one year and one 2 day is hereby **VACATED** . We **REMAND**for resentencing 3 proceedings consistent with this order. The mandate shall 4 issue forthwith. 5 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9 10