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Posted: February 13, 2015

Remedy for Failure to Justify Above-Guidelines Sentence Is Remand for Explanation, Not New Sentence

On February 4, 2015, the Second Circuit issued a decision in United States v. Nelson, 13-3025, finding that the EDNY erred in sentencing a defendant above the guidelines range without explanation but nonetheless affirming the sentence.

In Nelson, the defendant was sentenced to “to 25 years of imprisonment for unlawful use and discharge of a firearm in furtherance of a drug-trafficking crime.” On appeal, the defendant argued that the sentence “was procedurally unreasonable because the district court failed to explain in open court the reasons for imposing an above-guidelines sentence.” The Second Circuit agreed that the EDNY committed plain error by this failure, but still refused to vacate the defendant’s sentence, explaining:

[T]he district court’s error, though plain, did not seriously affect the fairness, integrity or public reputation of judicial proceedings. The district court was clearly aware that it was departing from the guidelines recommendation–even if the court never adequately explained why. Early in the proceeding, the district court observed that, because [the defendant’s] extensive criminal history was not captured by the guidelines recommendation, there was no issue here regarding whether there should be notice about a possible sentence above the guidelines.

As [the defendant] points out, the statement of reasons form inaccurately states that the sentence imposed was within the guidelines range; and the document contains no explanation for why an above-guidelines sentence was appropriate in this case. Like [the defendant’s] other procedural challenges, these are clear violations of 18 U.S.C. ยง 3553(c)(2) (requiring that the explanation for an above-guidelines sentence appear in the written statement of reasons). This claim, too, is raised for the first time on appeal.

Recognizing that such a claim will almost never survive plain error review (this one is no exception), our cases suggest that the proper remedy is a limited remand to allow the district court to issue a corrected statement of reasons.

(Internal quotations and citations omitted).

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