United States v. Gaye

76 F.4th 87

• Court: Court of Appeals for the Second Circuit
• Decided: August 4, 2023
• Docket: 22-251
• Status: Published

Opinion

22-251 United States v. Gaye

In the United States Court of Appeals For the Second Circuit

August Term, 2022 No. 22-251

UNITED STATES OF AMERICA, Appellee,

v.

SIRE GAYE, Defendant-Appellant. *

On Appeal from a Judgment of the United States District Court for the Southern District of New York.

ARGUED: JUNE 15, 2023 DECIDED: AUGUST 4, 2023

Before: PARK, NARDINI, and NATHAN, Circuit Judges.

*The Clerk of Court is respectfully directed to amend the caption as set forth above. Defendant-Appellant Sire Gaye appeals from a judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Judge). Gaye was twice sentenced for violating conditions of supervised release. The first time, he was sentenced to six months in prison plus four years of supervised release. The second time, he was sentenced to three years in prison plus five years of supervised release. We agree with the parties that this most recent sentence of supervised release was longer than allowed by statute. Under 18 U.S.C. § 3583(h), the district court was authorized to impose a term of supervised release of no more than the statutory maximum of five years for the underlying offense, minus the aggregate amount of prison time imposed for violations of supervised release. The parties disagree on the remedy. Gaye seeks de novo resentencing, but the government seeks only a limited remand to reduce the term of supervised release to eighteen months. We conclude that the district court should be afforded the opportunity to exercise its discretion as to how much time Gaye should spend in prison and how much time on supervised release. Accordingly, we REMAND for de novo resentencing.

JEFFREY W. COYLE, Assistant United States Attorney (Mary E. Bracewell, Stephen J. Ritchin, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

LAWRENCE GERZOG, New York, NY, for Defendant-Appellant.

2 PER CURIAM:

Sire Gaye, the defendant-appellant, keeps violating his

supervised release and getting sent back to prison. The cycle began

in 2018, when Gaye pleaded guilty to bank fraud conspiracy and was

sentenced to two months in prison followed by five years of

supervised release—the maximum term of supervised release

allowed by statute for his offense. In 2019, not long after leaving

prison, Gaye committed three New York state crimes, so the district

court sent him back to prison for six months, to be followed by four

years of supervised release. In 2021, Gaye again violated various

conditions of his supervised release, and this time the court sentenced

him to three years in prison. It also sentenced him to five years of

supervised release—but, as the parties now agree, this was too long.

A new term of supervised release imposed after violations of

supervised release cannot be longer than the statutory maximum for

the offense (here, five years) less any prison time imposed as a result

3 of those violations. 18 U.S.C. § 3583(h). That means that—in light of

the sentence of six months of imprisonment the district court had

imposed for the prior violation—for this most recent violation, the

district court had, at most, four-and-a-half years to distribute between

incarceration and supervised release, no more than three years of

which could go toward a prison term. Instead, the district court

imposed a cumulative sentence of eight years (three years of

incarceration plus five years of supervised release).

Although the parties agree this was error, they disagree about

the remedy. Gaye asks for de novo resentencing, which would allow

the district court to revisit both the prison and supervised release

terms. The government consents only to a limited remand to reduce

the term of supervised release to eighteen months. We remand for a

de novo resentencing, so that the district court can exercise its

discretion as to how much time Gaye should spend in prison and how

much time on supervised release.

4 I. Background

In February 2018, Gaye was indicted for participating in a

counterfeit check scheme. The grand jury charged him with

conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, and

aggravated identity theft, in violation of 18 U.S.C. §§ 1028A and 2.

Gaye pleaded guilty to the bank fraud charge pursuant to a plea

agreement, and the government moved to dismiss the identity theft

charge. The United States District Court for the Southern District of

New York (Colleen McMahon, Judge) sentenced him to two months

of imprisonment and a five-year term of supervised release, which

was the maximum term of supervised release authorized under 18

U.S.C. §§ 1349, 1344, 3559(a)(2), and 3583(b)(1). The district court also

ordered Gaye to pay $16,938.95 in restitution and a $100 special

assessment.

It did not take Gaye long to re-offend. In October 2019, after

serving his prison term, Gaye admitted violating his supervised

release by obstructing governmental administration, in violation of

5 New York Penal Law § 195.05, and by false impersonation, in

violation of New York Penal Law § 190.23. Gaye had given a false

name to police officers on several occasions, despite having been

warned of the consequences of providing such false information.

Following Gaye’s admissions, the district court revoked his term of

supervised release and sentenced him to six months of imprisonment

plus a four-year term of supervised release. The court added as a

condition of supervised release that Gaye perform twenty hours of

community service for every thirty days in which he remained

unemployed. The court noted that Gaye kept failing to abide by the

conditions of his supervised release and warned him that if he

violated his supervised release again, he would be facing the statutory

maximum sentence of three years in prison.

In 2021, Gaye was again arrested for violating his supervised

release. He admitted some of the charges: failing to pay restitution,

failing to complete his community service while unemployed, and

6 possessing marijuana. He did not admit other charges, which arose

from an incident at an auto repair shop when Gaye became irate and

pulled out a gun upon learning that the car would not be fixed as

quickly as he liked. When the shop employees called 911, Gaye

walked out of the shop and around the corner, hiding the gun in a

nearby yard. But the police were tipped off by a neighbor and found

the gun (as it turned out, with Gaye’s DNA on the grip). After an

evidentiary hearing, the district court found three additional charges

to have been proved: possessing a loaded firearm, in violation of New

York Penal Law § 265.03(1)(b); possessing a large capacity

ammunition feeding device, in violation of New York Penal Law

§ 265.02(8); and menacing in the second degree, in violation of New

York Penal Law § 120.14(1).

In the judgment from which Gaye now appeals, the district

court revoked Gaye’s supervised release and sentenced him to three

years in prison and five years on supervised release. The district court

7 noted that these supervised-release violations were not Gaye’s first

and that restitution was an essential aspect of Gaye’s sentence. The

district court said that it would impose the new term of supervised

release with the goal of keeping Gaye under the supervision of the

court until he paid restitution. The court also found that Gaye had

violated the conditions of his supervised release “in a particularly

dangerous way” and “shown himself to be absolutely incorrigible.”

App’x at 100. It concluded that “no sentence less than the statutory

maximum would be sufficient to take care of this problem.” Id.

II. Discussion

On appeal, Gaye challenges the procedural and substantive

reasonableness of his sentence. We review all sentences under a

deferential abuse-of-discretion standard. United States v. Osuba, 67

F.4th 56, 65 (2d Cir. 2023). To satisfy our procedural review, a trial

court may not impose a sentence that exceeds the statutory

maximum. United States v. Rivera, 799 F.3d 180, 187 (2d Cir. 2015).

When a defendant does not contemporaneously object to a term of

8 supervised release, our review is limited to plain error. See United

States v. Rodriguez, 775 F.3d 533, 536 (2d Cir. 2014). “[A] sentence that

exceeds the statutory maximum qualifies as plain error.” United States

v. Cadet, 664 F.3d 27, 33 (2d Cir. 2011). If we conclude that a sentence

is not procedurally reasonable, we need not consider whether it was

substantively reasonable. Rivera, 799 F.3d at 187.

We begin with our procedural review. When a district court

revokes a term of supervised release following a violation and

imposes a new term of supervised release, “[t]he length of such a term

. . . shall not exceed the term of supervised release authorized by

statute for the offense that resulted in the original term of supervised

release, less any term of imprisonment that was imposed upon

revocation of supervised release.” 18 U.S.C. § 3583(h). The maximum

term of supervised release that can be imposed following multiple

revocations must be reduced by the aggregate length of all terms of

9 imprisonment imposed following those revocations. Rodriguez, 775

F.3d at 534.

We agree with the parties that, paired with the three-year

prison term that the court ordered here, it was plain error to also

impose a five-year term of supervised release. The maximum term of

supervised release authorized for conspiracy to commit bank fraud—

the offense that resulted in Gaye’s original term of supervised

release—was five years. See 18 U.S.C. §§ 1349, 1344, 3559(a)(2),

3583(b)(1). The district court had earlier imposed a six-month prison

term for the first revocation of Gaye’s supervised release, and now

imposed a three-year prison term for his second. This adds up to an

aggregate of forty-two months in prison “upon revocation of

supervised release.” 18 U.S.C. § 3583(h); Rodriguez, 775 F.3d at 534.

Gaye thus faced a new term of supervised release that, in light of the

imposed three-year-term of imprisonment, could be no longer than

eighteen months—that is, the remaining difference between the sixty-

10 month statutory maximum and the total forty-two months he had

been sentenced to prison as a result of violating his supervised

release. His new five-year term of supervised release exceeded this

remaining cap of eighteen months, and it was therefore plainly

erroneous.

Although the parties agree there was plain error, they disagree

on the remedy. Gaye contends that a remand for de novo resentencing

is required because it is not clear how the district court would have

allocated the terms of imprisonment and supervised release had it

understood the bounds set by § 3583(h). The government, by

contrast, advocates for a limited remand with the direction that the

district court reduce Gaye’s term of supervised release to a term of

eighteen months. It argues that the error with respect to the term of

supervised release can be corrected without “undo[ing] the

sentencing calculation as a whole,” Gov’t Br. at 18 (quoting United

States v. Quintieri, 306 F.3d 1217, 1228 n.6 (2d Cir. 2002)). Pointing to

11 the district court’s statement that “no sentence less than the statutory

maximum would be sufficient,” id. at 18–19 (quoting App’x at 100),

the government contends that nothing in the record indicates that the

district court would have reduced the length of Gaye’s prison term in

order to increase his term of supervised release.

On this point, we agree with Gaye. Although our “default rule”

favors a limited remand when we overturn a sentence without

vacating an underlying conviction, United States v. Malki, 718 F.3d 178,

182 (2d Cir. 2013), we have recognized that, under certain

circumstances—including where the reversal of a sentence “undoes

the entire knot of calculation”—de novo resentencing is required.

Quintieri, 306 F.3d at 1228 (internal quotation marks omitted). Upon

our review of the record, we cannot say with certainty whether

pulling at the thread of supervised release unravels the entire knot of

sentencing. To be sure, the record fully supported the district court’s

observation that, by the time of sentencing, Gaye “ha[d] shown

12 himself to be absolutely incorrigible and incapable of following the

directions of the Court.” App’x at 100. Understandably, the district

court reasoned that “no sentence less than the statutory maximum

would be sufficient” under the circumstances. Id. But the record does

not reflect whether that statement referred specifically to the statutory

maximum term of imprisonment or the statutory maximum term of

supervised release. And the district court elsewhere stated that it was

going to make an exception to its normal policy of not reimposing

supervised release to follow a lengthy revocation sentence and was

imposing “the statutory maximum [term] of supervised release” in

order to keep a “thumb right on [Gaye]” until he paid his restitution.

Id. at 97.

In other words, it was clear that the district court sensibly

wanted to order both the longest possible prison sentence and the

longest possible period of supervised release. But in the unusual

procedural posture of this case—a second violation of supervised

13 release—that choice was a zero-sum affair. Under § 3583(h), the

maximum allowable term of supervised release upon revocation

decreased in direct proportion to the term of imprisonment imposed.

With a three-year prison sentence, Gaye faced at most eighteen

months of supervised release. For every month above an eighteen-

month term of supervised release, the court would have needed to

shave a month off the three-year prison term. Because the district

court’s comments suggest that it wanted to maximize both the prison

term and the supervised release term, we cannot say with confidence

how the district court would have resolved this trade-off, particularly

given the emphasis the court placed on ensuring Gaye meets his

restitution obligations through supervised release. We conclude that

the sentencing calculation is best left to the informed discretion of the

district court, so that it may decide in the first instance how to strike

the right balance. Accordingly, we remand for de novo resentencing

so that the district court can exercise the full scope of its discretion,

14 within the bounds of § 3583(h). Because we remand for a full

resentencing, we decline to reach Gaye’s argument that the sentence

imposed was substantively unreasonable. See Rivera, 799 F.3d at 187.

III. Conclusion

In sum, we hold that the district court plainly erred by

imposing a term of supervised release that exceeded the statutory

maximum authorized under 18 U.S.C. § 3583(h). Under the

circumstances of this case, de novo resentencing is appropriate. We

therefore REMAND for de novo resentencing consistent with this

opinion.