United States v. James
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Opinion
18‐961‐cr (L) United States v. James
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of May, two thousand nineteen.
PRESENT: BARRINGTON D. PARKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.
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UNITED STATES OF AMERICA, Appellee,
v. 18‐961‐cr (L) 18‐977‐cr (Con) GARY JAMES, Defendant‐Appellant.
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FOR APPELLEE: TANISHA R. PAYNE, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: DAVID GORDON, Law Office of David Gordon, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Johnson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the case is REMANDED for further proceedings
consistent with this order.
Defendant‐appellant Gary James appeals amended judgments entered
April 5, 2018, following his guilty pleas to a two‐count superseding information
charging him with conspiring to import cocaine and launder money and a one‐count
indictment for failure to appear. The district court sentenced James to a total of 108
monthsʹ imprisonment ‐‐ 90 months for the drug‐related charges and 18 months for
failing to appear, to run consecutively.
Between October 2009 and July 2010, Jamesʹs primary role was to recruit
couriers for one of the leaders of the conspiracy. In total, the district court found James
responsible for the importation of at least 3 kilograms of cocaine, some of the proceeds
of which he helped to launder and send from the United States back to Jamaica. While
on bail with a condition of home confinement, James removed his GPS monitoring
device and absconded, and was not found for over two months. He now appeals the
2 procedural and substantive reasonableness of his sentence. We assume the partiesʹ
familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.
James challenges the procedural reasonableness of his sentence on two
grounds. First, he argues that the district court erred in calculating the applicable
Guidelines range because he is entitled to credit for acceptance of responsibility.
Second, he asserts that the district court failed to state in open court the reasons for the
sentence imposed on the conspiracy counts. See 18 U.S.C. § 3553(c) (requiring that the
district court ʺstate in open court the reasons for its imposition of a particular
sentenceʺ).
The record lacks sufficient explanation as to why the district court denied
an adjustment for acceptance of responsibility; whether the district court considered the
apparent sentencing disparity between James and his co‐conspirators who received
considerably more lenient sentences (including time served sentences in some
instances) in spite of higher Guidelines ranges; and why the district court declined to
grant James a downward variance in light of all the circumstances and Jamesʹs ʺhistory
and characteristics,ʺ 18 U.S.C. § 3553(a)(1). The record also suggests some uncertainty
on the part of the district court as to the correct interpretation of our mandate in the
prior remand in this case.
3 We remand to the district court to resolve this lack of clarity. Because the
district courtʹs resolution of these issues is preliminary to our consideration of the
merits of the appeal, the remand is made pursuant to United States v. Jacobson, 15 F.3d
19, 22 (2d Cir. 1994). Accordingly, we remand to the district court such jurisdiction as
is necessary to make clear its reasoning as to (1) its calculation of the applicable
Guidelines range, including whether James qualified for an adjustment for acceptance
of responsibility, see United States v. Cavera, 550 F.3d 180, 189‐90 (2d Cir. 2008) (en banc);
(2) its imposition of a term of imprisonment of 90 months on the conspiracy counts in
light of the need to avoid unwarranted disparity among defendants found guilty of
similar conduct, see 18 U.S.C. § 3553(a)(6); and (3) the denial of Jamesʹs motion for a
downward variance, see 18 U.S.C. § 3553(a)(2). The district court may, in its discretion,
fulfill this Courtʹs mandate by entering a supplementary statement of reasons or
adjusting Jamesʹs sentence in a resentencing proceeding. This Court (and this panel)
shall retain jurisdiction over the matter. Upon a decision by the district court, full
jurisdiction will be restored to this Court and this panel by either party informing us by
letter of the district courtʹs decision.
For the foregoing reasons, the case is REMANDED to the district court for
further proceedings consistent with this order. The mandate shall issue forthwith.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court
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