United States v. Brown

• Decision Date: 16 August 2019
• Docket Number: August Term 2018,Docket No. 18-434-cr
• Parties: UNITED STATES of America, Appellee, v. Lawrence BROWN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

935 F.3d 43

UNITED STATES of America, Appellee,

v.Lawrence BROWN, Defendant–Appellant.

Docket No. 18-434-cr

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: June 10, 2019

Decided: August 16, 2019

John S. Wallenstein, Law Office of John S. Wallenstein, Garden City, NY for Defendant–Appellant Lawrence Brown.

Allison Nichols, Asst. U.S. Atty., New York, NY (Geoffrey S. Berman, U.S. Atty., Anden Chow, Daniel B. Tehrani, Asst. U.S. Attys., on the brief), for Appellee United States of America.

Before: NEWMAN, HALL, and CHIN, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal presents two sentencing issues. One issue is whether a district judge is permitted to consider the severity of one or more mandatory consecutive minimum sentences imposed for firearms offenses under 18 U.S.C. § 924(c) when the judge selects sentences for underlying predicate offenses. The Supreme Court has recently ruled that such severity may be considered. See Dean v. United States , ––– U.S. ––––, 137 S. Ct. 1170, 197 L.Ed.2d 490 (2017). The other issue is whether a court of appeals, encountering uncertainty as to whether a sentencing judge was aware of the discretion permitted by Dean should (a) remand for clarification of the sentencing judge’s understanding of the discretion permitted by Dean , with resentencing required only if the judge was not aware of such discretion, or (b) remand for resentencing.

These issues arise on an appeal by Lawrence Brown from the February 7, 2018, judgment of the District Court for the Southern District of New York (Nelson S. Román, District Judge) sentencing him to 39 years’ imprisonment. Concurrent terms of 7 years (84 months) were imposed for two robberies in violation of 18 U.S.C. § 1951, a mandatory consecutive sentence of 7 years was imposed for brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and a mandatory consecutive sentence of 25 years was imposed for a second firearms offense in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), (C)(i).

In a summary order filed this day, we have rejected Brown’s challenges to all four convictions. In this opinion, we consider issues arising from Brown’s sentence. First, we conclude that the Supreme Court’s decision in Dean has abrogated this Court’s decision in United States v. Chavez , 549 F.3d 119, 135 (2d Cir. 2008), which had precluded a sentencing judge from considering the severity of mandatory consecutive minimum sentences required by section 924(c) in determining sentences for underlying predicate counts; Dean permits consideration of such severity. We then explain why we encounter uncertainty as to whether Judge Román was aware of the discretion that Dean allowed him to exercise and why we conclude that the appropriate disposition is to remand for resentencing.

Background

Brown was convicted of robbing at gunpoint a Rite–Aid pharmacy in November 2013 and a ShopRite grocery in April 2014. He brandished a firearm at employees in both stores, tied their hands, and took money from the stores’ safes. A jury found Brown guilty of the two robbery offenses and the two firearms offenses.

At sentencing, defense counsel argued that, in view of the severity of the mandatory consecutive minimum sentences on the firearms counts, Judge Román should impose lenient sentences on the robbery counts. He specifically suggested one day on each robbery count, which would have resulted in an aggregate sentence of 32 years and two days. The presentence report calculated a Guidelines range of 70 to 87 months for the robbery offenses. Judge Román imposed concurrent sentences of 84 months (7 years) on the two robbery counts and consecutive sentences of 7 and 25 years, respectively, on the two firearms counts for an aggregate sentence of 39 years.¹ Judge Román did not say whether he had considered the severity of the mandatory consecutive minimum firearms sentences in determining the sentences on the robbery counts.

Discussion

In 2008, we ruled that a sentencing judge was not permitted to consider the severity of mandatory consecutive minimum sentences under section 924(c) in determining sentences on underlying predicate offenses. See United States v. Chavez , 549 F.3d 119, 135 (2d Cir. 2008). In 2017, the Supreme Court abrogated that decision, ruling that such severity may be "considered." Dean v. United States , ––– U.S. ––––, 137 S. Ct. 1170, 1175–78, 197 L.Ed.2d 490 (2017).²

There is a slight ambiguity in Dean as to the sentencing judge’s options in selecting a sentence on an underlying predicate offense. The unanimous opinion of Chief Justice Roberts initially states that the "question presented is whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under § 924(c)," id. at 1174 (emphasis added), and later states that "the District Court could not reasonably ignore the deterrent effect of [the defendant’s] mandatory minimum," id. at 1176 (emphasis added). A prohibition on "ignor[ing]" a section 924(c) mandatory consecutive minimum sentence might imply that the sentencing judge is required to consider such a sentence in determining a sentence for the predicate offense. However, in passages set forth in the margin,³ the Chief Justice’s opinion repeatedly makes the point that a sentencing judge is permitted to consider a mandatory consecutive minimum sentence when calculating a sentence for a predicate offense. We think that the Court in Dean intended to rule that a sentencing judge, selecting a sentence for a predicate offense, was not prohibited from considering the severity of a mandatory consecutive minimum sentence, and has the discretion, but not the obligation, to consider such severity. Because Brown’s case is pending on direct review, Dean , thus understood, is applicable. See United States v. Booker , 543 U.S. 220, 268, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ; Griffith v . Kentucky , 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

On appeal, Brown renews his argument that Judge Román should have imposed minimal sentences, i.e. , one day, on the robbery counts in view of the severity of the mandatory consecutive minimum 7- and 25-year sentences on the firearms counts. Although Brown did not explicitly argue in the District Court that Judge Román was unaware of the discretion permitted by Dean , nor make such a contention on appeal, we are satisfied that his plea for minimal one-day sentences on the robbery counts adequately preserved a claim that the sentencing judge was permitted to consider the severity of the sentences on the firearms counts.

That conclusion raises the issue whether the sentencing judge erred by imposing the concurrent 84-month sentences on the predicate robbery counts in the absence of any indication that he was aware of his discretion to consider the severity of the mandatory consecutive section 924(c) sentences. Although "[w]e may generally assume ‘that the sentencing judge understood all the available sentencing options,’ " United States v. Preacely , 628 F.3d 72, 80 (2d Cir. 2010) (quoting United States v. Sanchez , 517 F.3d 651, 665 (2d Cir. 2008) ) (unclear whether sentencing judge "understood" option to depart from career offender guideline, U.S.S.G. § 4B1.1(b) ), that assumption is not warranted in the unusual circumstances of this case. First, the Supreme Court has decided Dean , removing the prohibition on considering the severity of mandatory consecutive minimum sentences under section 924(c). Second, our decision in Chavez , precluding consideration of the severity of such sentences, had not been disavowed by this Court, even though abrogated by the Supreme Court in Dean . Third, neither the prosecutor nor the defense counsel called Dean to the attention of the sentencing judge, and it was not mentioned in the presentence report. Under these circumstances, we are uncertain whether Judge Román was aware of the discretion permitted by Dean .

That uncertainty raises the further issue of the appropriate disposition an appellate court should make of a sentencing appeal when it is not clear whether a sentencing judge was aware of or understood a relevant aspect of sentencing law. There are two possibilities. One is to remand to afford the sentencing judge the opportunity to clarify whether he was aware of the discretion permitted by Dean , and, if not, then to vacate the sentence and resentence. The other is simply to remand for resentencing. This Court has used both types of remand in comparable circumstances.

In several cases of uncertainty on our part, we remanded for clarification. See , e.g. , United States v. Regalado , 518 F.3d 143, 147–49 (2d Cir. 2008) (uncertainty whether sentencing judge "understood" discretion to impose non-Guidelines sentence because of disparity between sentences for cocaine base and cocaine powder offenses);⁴ United States v. Keller , 539 F.3d 97, 101–02 (2d Cir. 2008) (same; remanded pursuant to Regalado ); Sanchez , 517 F.3d at 665 (uncertainty concerning sentencing judge’s understanding of 28 U.S.C. § 994(h) ); United States v. Rivers , 50 F.3d 1126, 1129–31 (2d Cir. 1995) (uncertainty whether sentencing judge relied on "erroneous belief" in not making Guidelines departure and employed the correct legal standard in making its relatedness finding); United States v. Ogbondah , 16 F.3d 498, 501 (2d Cir. 1994) (uncertainty whether sentencing judge "understood" authority to depart from Guidelines because of "bureaucratic confusion that led to the loss of sentence credit"); United States v. Ritchey , 949 F.2d 61, 63 (2d Cir. 1991) (uncertainty whether sentencing judge had "mistaken conception" of authority to depart from Guidelines for various reasons); United States v. Sharpsteen , 913 F.2d 59, 63–64 (2d Cir. 1990) (uncertainty whether sentencing judge "recognized" authority to depart from...