United States v. Singh

• Citation: 877 F.3d 107
• Decision Date: 12 December 2017
• Docket Number: August Term 2016,Docket No. 16-1111-cr
• Parties: UNITED STATES of America, Appellee, v. Latchman SINGH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

877 F.3d 107

UNITED STATES of America, Appellee,

v.Latchman SINGH, Defendant-Appellant.

Docket No. 16-1111-cr

August Term 2016

United States Court of Appeals, Second Circuit.

Argued: February 23, 2017

Decided: December 12, 2017

Dina Mcleod, Assistant United States Attorney (Micah W.J. Smith, Assistant United States Attorney, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, New York, for Defendant–Appellant.

Before: Kearse, Hall, and Chin, Circuit Judges.

Chin, Circuit Judge:

In this case, defendant-appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony. His Guidelines range was 15 to 21 months' imprisonment, and both the government and the Probation Office recommended a within-Guidelines sentence. The district court, however, sentenced Singh to a term of imprisonment of 60 months—nearly three times the top of the Guidelines range.

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable. For the reasons set forth below, we vacate the sentence and remand for further proceedings. Singh's request that we order reassignment of the case to a different judge is denied.

BACKGROUND

A. The Facts

The facts are largely undisputed and are summarized as follows:

1. Singh's Personal History

Singh was born in Guyana on September 9, 1971, and has never been a citizen of the United States. He was one of five children, and he and his family moved to the United States when he was still a child. After residing with Singh's uncle in Florida for a year, the family moved to New York City. Although his parents separated, they both still live in the Bronx. Three of his siblings also live in the Bronx, and one lives in upstate New York.

In 1997, Singh married a woman who was a permanent resident of the United States. Together they had a daughter, now approximately seventeen years old. Before his arrest, he lived with his wife and their daughter in the Bronx and had a positive relationship with both.

2. The Offense Conduct

Singh was convicted in the Southern District of New York of larceny and postal theft on February 22, 1995. He was thereafter sentenced to twelve months' imprisonment. The conviction qualified as an aggravated felony within the meaning of 8 U.S.C. § 1326(b). On December 21, 2004, an immigration judge ordered Singh removed from the United States, and he was eventually removed from the country on April 9, 2010.

At some point after his removal, Singh illegally reentered the United States, and he was arrested by the New York City Police Department (the "NYPD") in the Bronx on February 9, 2012. On March 21, 2012, he was again ordered removed from the country based on the reinstatement of his earlier removal order. On May 16, 2012, he was once again removed from the United States.

At some point thereafter, Singh illegally reentered the United States again, as on June 26, 2014, he was arrested, once again, by the NYPD in the Bronx. This was his second illegal reentry into this country. Federal agents took him into custody on July 21, 2015.

3. Singh's Criminal History

In addition to the 1995 conviction for larceny and postal theft, Singh had been convicted of seven other crimes when he appeared for sentencing in this case:

• a conviction in 1993 for possession of stolen property (stolen mail) for which he was sentenced to a $100 fine;

• two convictions in 1994 for receiving stolen property for which he was sentenced to concurrent terms of imprisonment of 3 months and home confinement of 3 months;

• a conviction in 2002 for forgery for which he received a conditional discharge and was sentenced to a $500 fine;¹

• a conviction in 2002 for petit larceny for which he received a conditional discharge;

• a conviction in 2012 for shoplifting for which he was sentenced to time served (72 days) and 10 hours of community service; and

• a conviction in 2014 for petit larceny for which he received a conditional discharge.

B. The Proceedings Below

In an indictment filed August 17, 2015, Singh was charged with one count of illegal reentry into the United States after having been removed following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). On December 21, 2015, Singh appeared before Magistrate Judge Henry B. Pitman and pleaded guilty to the sole count of the Indictment, without a plea agreement. Judge Pitman recommended that the district court accept the plea. The district court accepted the plea by order filed January 12, 2016.

On March 18, 2016, the Probation Office submitted a Presentence Investigation Report (the "PSR") in anticipation of sentencing. The Probation Office computed the Total Offense Level as 13, based on a base level for illegal reentry of 8; an 8–level increase because Singh was deported following a conviction for an aggravated felony; and a 3–level reduction for acceptance of responsibility. The PSR noted that Singh had "clearly demonstrated acceptance of responsibility for the offense" and had "assisted authorities in the investigation or prosecution of [his] own misconduct by timely notifying authorities of the intention to enter a plea of guilty." PSR, ¶¶ 36, 37. The Probation Office noted that Singh had eight prior convictions, as discussed above, but concluded that the convictions resulted in only three criminal history points, placing Singh in Criminal History Category II. Six of the eight convictions carried zero criminal history points.² See U.S. Sentencing Guidelines Manual § 4A1.2(e)(1), (2), (3). The PSR calculated a Guidelines range of imprisonment of 15 to 21 months and recommended a sentence of 21 months.

Singh submitted a sentencing memorandum, with attachments, including letters from his family, and requested a below-Guidelines sentence of time served (he had served almost nine months). The government submitted a sentencing letter requesting a sentence "within the applicable Guidelines range of 15 to 21 months' imprisonment," stating that "such a sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing." App. at 79, 82. The government agreed with the Probation Office's calculation of Singh's recommended sentence, which included a three-level reduction "based on the defendant's acceptance of responsibility." Id. at 80.

By letter dated February 16, 2016, Singh wrote directly to the district court. The letter stated in part as follows:

Your Honor I'm So Sorry For my Action or wrongdoing. I've Realise my Action were wrong. I've causes the courts and the citizen of United States, Also my Family allot of pain and trouble. Your Honor I've Hurts my Daughter, wife, mother, Father and Family Feeling so much.

Your Honor at the time of all my conviction in the past, I've allot of Bad Friend and Company who I follow and do bad thing. Your Honor I wasn't thinking what I was getting into or doing. I Follow my Friend and take thing playful and Funny. Your Honor I was Foolise, selfish and dumb.

Your Honor I Came Back to United States Because I was Fear for my life. I was in Danger in Guyana which I was attack, Beaten up, Robbed and threatened to Be kill for my money and other thing.

Your Honor I've No family in Guyana. My wife, child, Mother, Father and all my sister and Brother are Residing in the United States. Your Honor I was all alone in Guyana and Scare.

...

Your Honor I only Came Back Because I was in Danger and Fear For my life and to Be with my Family. I'm sorry for Breaking the law. I'm Begging for another chance. Please my only Daughter is very worry about what's going to happen to her Father.

Your Honor these long Jail months have taught me hard lesson, not to do anything wrong again. Your Honor From my heart I promise I will not Break the Law again For the sake of my daughter and Family.

App. at 76–78.

Sentencing proceeded on April 8, 2016. That morning, the district court issued an order notifying the parties that it was "seriously considering an upwards variance in connection with the sentencing of Mr. Singh." App. at 83.

At the sentencing, the district court adopted the factual findings set forth in the PSR. The district court then explained that it was not "inclined" to allow Singh a deduction for acceptance of responsibility because of certain statements Singh made in his letter: first, Singh's statement that he reentered because he feared for his life "appear[ed] to indicate his attempt to avoid responsibility for the crime," and, second, his statements that "he had been under the influence of bad friends" and had "done things thinking they were playful and funny" and that he had been "foolish and selfish" demonstrated that Singh "certainly does attempt to avoid responsibility for the aggravated felony." App. at 90–92.

As to Singh's statements that he had been threatened in Guyana, defense counsel represented that "[f]rom day one Mr. Singh has told me and my office that he was attacked, robbed, and in danger down in Guyana and that was a portion of his motivation for returning." App. at 99. Counsel represented that "Mr. Singh has never said otherwise. In fact, he has been explicit and clear about the threats that he was under in Guyana. He was robbed, beaten with a gun and put in [a] hospital in Guyana." Id. Counsel further reported that Guyanese of Indian descent who returned to Guyana were often targeted for robberies, especially after having lived in the United States. Counsel explained that he did not "focus" on these issues in his sentencing submission because the information was uncorroborated. The district court responded to defense counsel by stating "I accept your statement." Id. at 100.

The district court then advised the parties that it had determined to give Singh the acceptance of responsibility deduction, noting "I don't want to create...