16‐1111‐cr United States v. Latchman Singh
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2016
(Argued: February 23, 2017 Decided: December 12, 2017) Docket No. 16‐1111‐cr
UNITED STATES OF AMERICA, Appellee,
‐ against ‐
LATCHMAN SINGH, Defendant‐Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Before: KEARSE, HALL, and CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Forrest, J.) convicting defendant‐appellant, upon
his guilty plea, of illegally reentering the United States after having been
removed following a conviction for an aggravated felony. Defendant‐appellant
contends that his sentence of 60 monthsʹ imprisonment ‐‐ which was nearly three times the top of the applicable Guidelines range ‐‐ was both procedurally and
substantively unreasonable.
VACATED AND REMANDED.
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.
COLLEN P. CASSIDY, Federal Defenders of New York, Inc., New York, New York, for Defendant‐ Appellant.
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 monthsʹ 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.
‐2‐ 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. Singhʹs 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. Singhʹs 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 Singhʹs
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.
‐3‐ 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
monthsʹ 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
ʺNYPDʺ) 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.
‐4‐ 3. Singhʹs 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
1 See N.Y. Penal Law § 65.05(1)(a) (2017) (ʺ[T]he court may impose a sentence of conditional discharge for an offense if the court, having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate.ʺ). ‐5‐ ● 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 ʺPSRʺ) 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 ʺclearly demonstrated acceptance
of responsibility for the offenseʺ and had ʺassisted authorities in the investigation
or prosecution of [his] own misconduct by timely notifying authorities of the
intention to enter a plea of guilty.ʺ PSR, ¶¶ 36, 37. The Probation Office noted
‐6‐ 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 ʺwithin the applicable Guidelines range of
15 to 21 monthsʹ imprisonment,ʺ stating that ʺsuch a sentence would be sufficient
2 The Probation Office did not explain why the six convictions carried zero criminal history points beyond citing § 4A1.2(e)(3) of the Guidelines. That section provides that ʺ[a]ny prior sentence not within the time periods specified above is not counted.ʺ U.S. Sentencing Guidelines Manual § 4A1.2(e)(3). Subsections (2) and (3) provide that certain prior sentences are counted: (1) prior sentences of imprisonment exceeding one year and one month imposed within fifteen years of the ʺcommencement of the instant offenseʺ; (2) prior sentences of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated within the fifteen‐year period; and (3) prior sentences imposed within ten years of the ʺcommencement of the instant offense.ʺ Id. § 4A1.2(e)(1), (2). Here, it is not clear when Singh commenced the instant offense as the record does not establish when he reentered after his May 16, 2012 removal, but he was found here on June 26, 2014. If that is considered the commencement date, none of the six convictions involved sentences imposed within the prior ten years and none resulted in a sentence of imprisonment exceeding one year and one month. Four of the sentences were imposed more than fifteen years earlier ‐‐ indeed, more than twenty years earlier. ‐7‐ but not greater than necessary to serve the legitimate purposes of sentencing.ʺ
App. at 79, 82. The government agreed with the Probation Officeʹs calculation of
Singhʹs recommended sentence, which included a three‐level reduction ʺbased
on the defendantʹs acceptance of responsibility.ʺ 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 Iʹm So Sorry For my Action or wrongdoing. Iʹve Realise my Action were wrong. Iʹve causes the courts and the citizen of United States, Also my Family allot of pain and trouble. Your Honor Iʹve Hurts my Daughter, wife, mother, Father and Family Feeling so much.
Your Honor at the time of all my conviction in the past, Iʹve allot of Bad Friend and Company who I follow and do bad thing. Your Honor I wasnʹt 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 Iʹve 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. Iʹm sorry for Breaking
‐8‐ the law. Iʹm Begging for another chance. Please my only Daughter is very worry about whatʹs 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 ʺseriously considering an
upwards variance in connection with the sentencing of Mr. Singh.ʺ 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 ʺinclinedʺ to
allow Singh a deduction for acceptance of responsibility because of certain
statements Singh made in his letter: first, Singhʹs statement that he reentered
because he feared for his life ʺappear[ed] to indicate his attempt to avoid
responsibility for the crime,ʺ and, second, his statements that ʺhe had been under
the influence of bad friendsʺ and had ʺdone things thinking they were playful
and funnyʺ and that he had been ʺfoolish and selfishʺ demonstrated that Singh
ʺcertainly does attempt to avoid responsibility for the aggravated felony.ʺ App.
at 90‐92.
‐9‐ As to Singhʹs statements that he had been threatened in Guyana,
defense counsel represented that ʺ[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.ʺ App. at 99. Counsel represented that
ʺMr. 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.ʺ 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 ʺfocusʺ on these issues in his sentencing submission because the information
was uncorroborated. The district court responded to defense counsel by stating
ʺI accept your statement.ʺ Id. at 100.
The district court then advised the parties that it had determined to
give Singh the acceptance of responsibility deduction, noting ʺI donʹt want to
create an appeal point relating to whether or not [USSG §] 1B1.3, relevant
conduct, will or will not, in an illegal reentry situation, include certain things
related to an aggravated felony.ʺ Id. The district judge stated, however, that ʺI
will consider the various issues that I have with acceptance of responsibility
under [18 U.S.C. §] 3553(a), in light of all the information.ʺ App. at 100. The
‐10‐ district court concluded, as the PSR had recommended and the parties agreed,
that the Guidelines calculation was a Total Offense Level of 13 and a Criminal
History Category of II for a range of 15 to 21 monthsʹ imprisonment.
The district court and the parties then turned to a discussion of the
§ 3553(a) sentencing factors. In the end, the district court imposed a sentence of
60 monthsʹ imprisonment. The court explained as follows:
I do not see this as a heartland case for illegal reentry. I see this as a case where we have a defendant who has repeatedly harmed the public. While he has not engaged in drug offenses or violent offenses, the kinds of crimes he is engaged in relate to a variety of conduct which is harmful, and it is harmful to members of the public. The public shouldnʹt be exposed to it. Itʹs repeated and itʹs repeated so often and so brazenly that I do not have any hope. I have no expectation, frankly, that it could stop. I donʹt know what the issue may be thatʹs causing it. . . .
I donʹt believe he can live here honestly. I donʹt believe he has any right to live in this country at all. I believe that he has no right to be present on U.S. soil. I think he should be deported back to Guyana and he can make his life in Guyana as he deems appropriate. It could have been different, but itʹs not.
I think reentry for him in terms of personal deterrence, it plays a very, very important role in his sentence. I think reentry is highly likely. Indeed I would say that I think reentry is almost certain, an attempt at reentry is almost certain for this defendant. He has done it two times before. There is nothing at all in the record at all to indicate he wouldnʹt do it again. . . .
I do take into consideration the fact that this defendant has spent the majority of his life in the United States. It is also the fact
‐11‐ that I take into consideration that he has spent the majority of his adult life back and forth. He has committed a lot of crimes and he has had a lot of opportunities to lead a different life. So all of these factors I take into consideration. . . .
. . . I put out the notice this morning that the court was considering an upward variance, a variance because I do not believe, as Iʹve said before, that the guidelines appropriately take into consideration the totality of the circumstances that are at issue here with the defendantʹs background, with the prior leniency thatʹs been shown to the defendant, with his multiple reentries. So itʹs not just a single reentry after a single aggravated felony. Itʹs actually more than that. And I do believe that the consistent history of his crimes indicates that there is a very high likelihood of recidivism. I think itʹs an unusually high likelihood of recidivism.
Since Iʹm convinced that he will reenter and commit more crimes, I do believe there is some need for and a strong need for incapacitation for some period of time. In other words, I do not believe that deportation right now actually serves the public interest. I believe that the public interest in this country is best served by a period of incapacitation, which will prevent reentry. . . .
I believe that time served, something that would then send this defendant on now to the immigration authorities and into immigration custody, would be the wrong message. It would be the wrong message and I think it would be most likely to inspire the defendant and incent the defendant to return. I also think that21 months, which is the guidelines range, is far too little to achieve the goals that I am considering necessary under all of the factors under 3553(a).
Based upon the particular facts and circumstances relating to this defendant, having thought long and hard about all of the facts and circumstances of this defendant, I do believe that a sentence of 60 months is appropriate. A period of 60 months is a sufficient but not greater than necessary sentence. It is an upwards variance.
‐12‐ However, it does provide the incapacitation which this court believes is absolutely necessary to prevent the nearly immediate reentry which I believe will occur.
App. at 109, 112‐17.
The district court entered judgment on April 11, 2016. On April 20,
2016, Singhʹs counsel wrote a letter to the district court requesting a
recommendation that the Bureau of Prisons designate Singh to the Moshannon
Valley Correctional Center in Pennsylvania. By memorandum endorsement
dated the same day, the district court denied the request, writing that
ʺ[a]pplications for designation should generally be made at the time of
sentencing,ʺ and stating: ʺThe Court will not now, for this defendant, make such
a recommendation.ʺ App. at 123.
This appeal followed.
DISCUSSION
A. Applicable Law
We review a sentence for procedural and substantive reasonableness
under a ʺdeferential abuse‐of‐discretion standard.ʺ Gall v. United States, 552 U.S.
38, 41 (2007); see United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012) (ʺour
standard is ʹreasonableness,ʹ ʹa particularly deferential form of abuse‐of‐
discretion reviewʹʺ) (quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d
‐13‐ Cir. 2008) (en banc)); accord United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir.
2014).
A sentence is procedurally unreasonable if the district court ʺfails to
calculate (or improperly calculates) the Sentencing Guidelines range, treats the
Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors,
selects a sentence based on clearly erroneous facts, or fails adequately to explain
the chosen sentence.ʺ United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)
(internal quotation marks omitted). We will set aside a sentence as substantively
unreasonable only in ʺexceptional cases where the trial courtʹs decision ʹcannot
be located within the range of permissible decisions.ʹʺ Cavera, 550 F.3d at 189
(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). We will identify
ʺas substantively unreasonable only those sentences that are so ʹshockingly high,
shockingly low, or otherwise unsupportable as a matter of lawʹ that allowing
them to stand would ʹdamage the administration of justice.ʹʺ Broxmeyer, 699 F.3d
at 289 (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).
Our review for substantive unreasonableness is ʺparticularly
deferential.ʺ Broxmeyer, 699 F.3d at 289 (citing Gall, 552 U.S. at 51). The Supreme
Court has made clear that ʺresponsibility for sentencing is placed largely in the
precincts of the district courts.ʺ Cavera, 550 F.3d at 191. Hence, ʺour role in
‐14‐ sentencing appeals is to ʹpatrol the boundaries of reasonableness,ʹʺ Rigas, 583
F.3d at 122 (quoting Cavera, 550 F.3d at 191), with due respect for the sentencing
courtʹs ʺvery wide latitude to decide the proper degree of punishment for an
individual offender and a particular crime,ʺ Cavera, 550 F.3d at 188. Though the
standard for finding substantive unreasonableness is high, this Court has not
shied away from doing so when appropriate. See United States v. Dorvee, 616 F.3d
174, 188 (2d Cir. 2010) (ʺ[I]t would be manifestly unjust to let Dorveeʹs sentence
stand.ʺ); United States v. Jenkins, 854 F.3d 181, 188 (2d Cir. 2017) (ʺWe conclude
that the factors upon which the district court relied . . . cannot bear the weight of
the sentence the district court imposed.ʺ).
District courts are to use the Guidelines as a ʺstarting point,ʺ and
then make an independent sentencing determination, taking into account the
ʺnature and circumstances of the offense and the history and characteristics of
the defendant,ʺ and all the statutory factors. Cavera, 550 F.3d at 188 (quoting 18
U.S.C. § 3553(a)). Sentencing courts are not to ʺpresume that the Guidelines
range is reasonable,ʺ and instead they ʺmust make an individualized assessment
based on the facts presented.ʺ Gall, 552 U.S. at 50.
Where there is a variance from the Guidelines range, on appellate
review, ʺʹwe may take the degree of variance into account and consider the
‐15‐ extent of a deviation from the Guidelinesʹ. . . . ʹ[A] major departure should be
supported by a more significant justification than a minor one.ʹʺ United States v.
Stewart, 590 F.3d 93, 135 (2d Cir. 2009) (quoting Gall, 552 U.S. at 47, 50).
B. Application
Singh challenges his sentence on both procedural and substantive
grounds. While we usually address the procedural arguments first in sentencing
appeals, here we begin with the substantive challenge because it informs our
analysis of the procedural arguments.
1. Substantive Unreasonableness
As the Supreme Court has observed in a different context, ʺthe
measure of what is conscience shocking is no calibrated yard stick.ʺ Cty. of
Sacramento v. Lewis, 523 U.S. 833, 847 (1998); accord OʹConnor v. Pierson, 426 F.3d
187, 203 (2d Cir. 2005) (ʺThe shocks‐the‐conscience test is necessarily imprecise.ʺ).
In this case, on this record, even if Singhʹs sentence does not shock the conscience,
ʺit at the very least stirs the conscience.ʺ United States v. Aldeen, 792 F.3d 247, 255
(2d Cir. 2015).
The district court imposed a sentence of 60 monthsʹ imprisonment
for an illegal reentry case, where the Guidelines range was only 15 to 21 months
and the government and the Probation Office had both recommended a within‐
‐16‐ Guidelines sentence. The district court imposed a sentence almost three times
the high end of the Guidelines range. Moreover, as shown by Sentencing
Commission statistics, the sentence of 60 months drastically exceeded
nationwide norms. In fiscal year 2013, the average sentence for illegal reentry
offenders was 18 months and the median sentence was 12 months. Sentencing
Commʹn, Illegal Reentry Offenses, at 9 (April 2015) (ʺCommʹn Reportʺ), available
at https://www.ussc.gov/sites/default/files/pdf/research‐and‐publications/
research‐projects‐and‐surveys/immigration/2015_Illegal‐Reentry‐Report.pdf.3
An above‐Guidelines sentence was imposed in only 1.3% of all illegal reentry
cases, id. at 10, and in cases (like the instant one) with an 8‐level enhancement for
an aggravated felony, an above‐Guidelines sentence was imposed in only 1.2% of
the cases, id. at 11 Table 2.
The district court concluded that a substantial variance was
warranted here because of Singhʹs ʺconsistent historyʺ of criminal conduct and
the ʺvery high likelihood of recidivism.ʺ App. at 115.4 While Singh indeed had
3 The Commission Report shows that the average sentence for illegal reentry cases for 2013 was not significantly different going back to 2009. Id. at 10 Fig. 4. 4 ʺThe particular weight to be afforded aggravating and mitigating factors ʹis a matter firmly committed to the discretion of the sentencing judge.ʹʺ Broxmeyer, 699 F.3d at 289 (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006)). In reviewing for substantive reasonableness, ʺwe do not consider what weight we would ourselves have given a particular factor,ʺ but instead we determine whether a factor relied on by a ‐17‐ eight prior convictions, as the district court acknowledged, however, none
involved violence or narcotics trafficking. See id. at 109. Six of the eight
convictions were more than ten years old. Four were more than twenty years
old, counting back from the date of sentencing, and Singh was only 21 and 22
years old when he committed those offenses.5 The four more recent convictions
occurred over the course of fifteen years, and three were so minor they resulted
in conditional discharges, that is, the sentencing court did not believe the crime
warranted imprisonment or even probation. Moreover, the Sentencing
Commission statistics show that 57.2% of illegal reentry offenders were in
Criminal History Category (ʺCHCʺ) III or higher. Commʹn Report at 9. Singh
was only in CHC II, and yet he was sentenced to more than three times the
national average for all illegal reentry offenders, 57.2% of whom were in a higher
CHC.
sentencing court ʺcan bear the weight assigned it under the totality of circumstances in the case.ʺ Cavera, 550 F.3d at 191. 5 As the Supreme Court has observed, ʺOur cases recognize that ʹyouth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.ʹ . . . A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill‐considered actions and decisions.ʺ Johnson v. Texas, 509 U.S. 350, 367 (1993) (quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)); see also Graham v. Florida, 560 U.S. 48, 74 (2010) (holding that life without parole for juveniles is unconstitutional, in part because of ʺa juvenile nonhomicide offenderʹs capacity for change and limited moral culpabilityʺ). ‐18‐ As we note above, a major variance must be supported by ʺa more
significant justification.ʺ United States v. Stewart, 590 F.3d at 168 (quoting Gall,
552 U.S. at 47, 50). In the context of the Sentencing Commissionʹs statistics for
illegal reentry cases and all the circumstances here, we are not persuaded, on this
record, that the justification offered by the district court was sufficient to support
the magnitude of the variance. See Cavera, 550 F.3d at 189. Our concern is
heightened by the procedural issues we turn to now.
2. Procedural Reasonableness
We have two areas of concern with respect to procedural
reasonableness. First, there may have been factual errors in the district courtʹs
discussion of the record. Second, the district courtʹs reluctance to credit Singhʹs
acceptance of responsibility (although it did so in the end) suggests that the
district court may have conflated Singhʹs statements in mitigation with a failure
to accept responsibility.
a. Factual Issues
As to the apparent factual errors, the district court concluded that
ʺreentry is almost certain, an attempt at reentry is almost certain for this
defendant. He has done it two times before.ʺ App. at 113 (emphasis added). The
district court also referred to ʺthe multiple[] numbers of times that he has been
‐19‐ arrested and spent time in jail and been deported.ʺ Id. at 114. These comments
suggest that the district court believed that Singh had been guilty of two earlier
illegal reentries and that it was sentencing him for a third illegal reentry. Indeed,
the PSR had erroneously stated that ʺthe instant offense is the defendantʹs third
arrest for illegally reentering the United States,ʺ PSR at 23, a statement the parties
acknowledge was wrong. In fact, Singh had been arrested for illegal reentry only
twice ‐‐ including for the instant offense. While the government argues on
appeal that the district court might have been including the current offense in its
comments and that the district court understood there were two and not three
illegal reentries all together, the district courtʹs words suggest otherwise.
The district court also concluded that Singh ʺhas spent the majority
of his adult life back and forth,ʺ that is, between Guyana and the United States.
App. at 115. In fact, however, Singh, who was 44 years old at the time of
sentencing, was not deported for the first time until 2010, when he was nearly 39.
It was simply not correct that he had spent ʺthe majority of his adult life back and
forth.ʺ To the contrary, he had spent the majority of his adult life living in the
United States. The district courtʹs conclusion that Singh was ʺalmost certainʺ to
illegally reenter again surely was influenced by these apparently erroneous
views of the facts.
‐20‐ Finally, the district court determined as a factual matter that this was
ʺa defendant who has repeatedly harmed the public. . . . [T]he kinds of crimes he
is engaged in relate to a variety of conduct which is harmful, and it is harmful to
members of the public. The public shouldnʹt be exposed to it. Itʹs repeated and
itʹs repeated so often and so brazenly that I do not have any hope.ʺ App. at 109.
The district court further commented: ʺI am indeed almost certain that this
defendant will try to reenter. I also believe that he will then be extremely likely
to commit additional crimes, which exposes the American public to crimes from
this individual.ʺ Id. at 114.
We are not persuaded that the district courtʹs abject view of Singhʹs
record and prospects for reform is supported by the record. As discussed above,
although Singh had eight prior convictions, the district court may have
overstated their seriousness. Four of the convictions were more than twenty
years old, involving crimes committed by Singh when he was only 21 or 22 years
old, and two others were some more than ten years old. None involved guns or
violence or narcotics. Three of the more recent convictions resulted only in
conditional discharges, without any term of prison or probation. A sentencing
judge has the formidable task of trying, to some extent, to predict the future, as
she must determine whether the defendant has really learned his lesson, whether
‐21‐ he is likely to break the law again, and whether he will be able to turn his life
around for the better. While the trial judgeʹs decisions on these difficult matters
are entitled to great deference, we do not believe the record here supports the
trial courtʹs apparent conclusion that Singh was essentially beyond redemption.
See Yuen Jung v. Barber, 184 F.2d 491, 495 (9th Cir. 1950) (ʺAll modern legislation
dealing with crime and punishment proceeds upon the theory that aside from
capital cases, no man is beyond redemption.ʺ).
A sentencing determination based on clearly erroneous factual
findings is procedurally unreasonable. See United States v. Chu, 714 F.3d at 746;
United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam). A variance
such as that imposed here ‐‐ some three times the high end of the range ‐‐ must
be based on an accurate reading of the record. A remand for clarification of the
facts is therefore appropriate. See United States v. Juwa, 508 F.3d 694, 699‐700 (2d
Cir. 2007) (remanding for resentencing where there was uncertainty as to
whether district court had assumed defendant had engaged in ʺmultiple instances
of sexual abuse, as opposed to [a] single instanceʺ).
b. The Question of Acceptance of Responsibility
At the outset of the sentencing, the district court explained that it
was not ʺinclined to allow the acceptance of responsibility deductions.ʺ App. at
‐22‐ 90. After hearing from counsel, the district court advised that it did not ʺwant to
create an appeal pointʺ and granted Singh the acceptance points, but noted that it
would consider the acceptance of responsibility issues ʺunder 3553(a).ʺ App. at
100. Hence, despite giving Singh credit for acceptance of responsibility, the
district court remained concerned that Singh had not fully accepted
responsibility. The concern emanated from statements in Singhʹs letter to the
court that he had been acting foolishly and selfishly, under the influence of
friends, when he committed his earlier crimes and that he had returned to the
United States in part for fear of his life in Guyana.
It appears that the district concluded that Singhʹs comments in his
letter were a basis for imposing a higher sentence and that the district court may
have imposed a substantive variance and punished Singh for trying to offer
explanations for his conduct. If indeed the district court conflated Singhʹs
statements in mitigation with a failure to accept responsibility, then it committed
procedural error.
Considered as a whole, Singhʹs letter was an apology and a
statement of remorse. It was a plea for mercy and an attempt to explain his
motivations. Singh stated that he was ʺso sorryʺ for his actions and admitted that
he had engaged in ʺwrongdoing.ʺ App. at 76. He acknowledged that he had
‐23‐ caused his family and others a lot of ʺpain and trouble.ʺ Id. He explained that
his ʺlong jail monthsʺ (he had been in prison for more than eight months at the
time) had taught him a ʺhard lesson, not to do anything wrong again.ʺ Id. at 78.
He promised not ʺto break the law again for the sake of [his] daughter and
family.ʺ Id. It was in this context that Singh made the statements of concern to
the district court.
A defendantʹs acceptance of responsibility and his assertion of
mitigating circumstances are not necessarily inconsistent or incompatible. The
concepts are related but independent. Cf. United States v. Douglas, 569 F.3d 523,
527 (5th Cir. 2009) (ʺWe hold that ʹlack of remorseʹ and ʹacceptance of
responsibilityʹ can be separate factors and that a district court may consider each
independently of the other.ʺ); United States v. Andrews, 390 F.3d 847‐48 (5th Cir.
2004) (holding, in pre‐Booker case, that district court erred in upwardly departing
from Guidelines range on grounds defendant ʺhad not completely accepted
responsibility,ʺ where it had granted defendant acceptance‐of‐responsibility
reduction in calculating range).
The Guidelines authorize a two‐step decrease in offense level if a
defendant ʺclearly demonstrates acceptance of responsibility.ʺ U.S. Sentencing
Guidelines Manual § 3E1.1(a). An additional one‐step decrease is available,
‐24‐ ʺupon motion of the government,ʺ where the defendantʹs offense level without
any acceptance‐of‐responsibility credit is at least 16 and his ʺtimelyʺ notification
of his intent to plead guilty saves the government from preparing for trial and
permits ʺthe government and the court to allocate their resources efficiently.ʺ Id.
§ 3E1.1(b); see generally United States v. Delacruz, 862 F.3d 163, 177 (2d Cir. 2017).
ʺʹ[T]he paramount factor in determining eligibility for § 3E1.1 credit is whether
the defendant truthfully admits the conduct comprising the offense or offenses of
conviction.ʹʺ United States v. Kumar, 617 F.3d 612, 637 (2d Cir. 2010) (quoting
United States v. Teyer, 322 F. Supp. 359, 376 (S.D.N.Y. 2004)). In deciding whether
to grant acceptance‐of‐responsibility credit, the district court is to consider, inter
alia, whether the defendant ʺtruthfully admit[ed] the conduct comprising the
offense(s) of conviction, and truthfully admit[ed] or not falsely den[ied] any
additional relevant conduct.ʺ U.S. Sentencing Guidelines Manual § 3E1.1
Application Note 1(A). A defendant is not required, however, ʺto volunteer, or
affirmatively admit, relevant conduct beyond the offense of convictionʺ to
qualify for the reduction. Id.; see United States v. Zapata, 1 F.3d 46, 49‐50 (1st Cir.
1993) (conduct underlying an ʺaggravated felonyʺ for purposes of 8 U.S.C. §
1326(b)(2) is not conduct ʺpart of the instant offenseʺ under § 4A1.2(a)(1) nor
relevant conduct).
‐25‐ A defendant has an ʺabsolute rightʺ to be heard at sentencing to
offer mitigating circumstances. United States v. Feng Li, 115 F.3d 125, 132‐333 (2d
Cir. 1997) (citation and internal quotation marks omitted). Rule 32 of the Federal
Rules of Criminal Procedure requires the court, before imposing sentence, ʺto
permit the defendant to speak or present any information to mitigate the
sentence.ʺ Fed. R. Crim. P. 32(i)(4)(A)(ii). A defendantʹs right to ʺattempt to
mitigate punishmentʺ has ʺhistorical roots in the common law,ʺ and ʺthe
opportunity to plead for mercy is another provision in a procedural body of law
designed to enable our system of justice to mete out punishment in the most
equitable fashion possible, to help ensure that sentencing is particularized and
reflects individual circumstances.ʺ Feng Li, 115 F.3d at 133 (quoting United States
v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991)) (internal quotation marks omitted).6
Singhʹs assertions that he was ʺfoolis[h], selfish and dumbʺ when he
followed his friends in committing crimes some twenty years earlier, when he
was only 21 or 22 years old, and that he returned to the United States in part for
fear of his life (and to be with his family) were not, in our view, inconsistent with
his acknowledgment of responsibility and wrongdoing. App. at 77. These
6 See also 18 U.S.C. § 3661 (ʺNo limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.ʺ). ‐26‐ comments did not indicate a lack of remorse, but were merely an effort by Singh
to explain why he broke the law. He truthfully admitted the conduct comprising
the offense of conviction. A defendantʹs motivation for engaging in criminal
conduct is unquestionably a proper consideration at sentencing. See, e.g., Stewart,
590 F.3d at 140‐41 (ʺIn evaluating culpability, we cannot discount the relevance of
the defendantʹs motivations ‐‐ i.e., whether mercenary, see, e.g., 18 U.S.C. § 1958
(murder for hire), or born from a commitment to the use of violence.ʺ); United
States v. Hansen, 701 F.2d 1078, 1083 (2d Cir. 1983) (noting ʺʹthe long unbroken
tradition of the criminal law that harsh sanctions should not be imposed where
moral culpability is lackingʹʺ (quoting Lennon v. INS, 527 F.2d 187, 193 (2d Cir.
1975))); accord Porter v. McCollum, 558 U.S. 30, 41 (2009) (holding that defense
counsel failed to provide effective assistance where ʺ[t]he judge and jury at
[defendantʹs] original sentencing heard almost nothing that would humanize
[defendant] or allow them accurately to gauge his moral culpabilityʺ).7
7 ʺConsider, for example, a dutiful son who commits bank fraud to fund a necessary medical caretaker for his aged mother. Because this defendantʹs motive to provide for his mother makes him less culpable than a defendant who commits the same fraud to finance unneeded luxuries, a court might reasonably conclude that the dutiful sonʹs ʹfamily circumstancesʹ call for a lesser sentence . . . .ʺ Douglas A. Berman, Addressing Why: Developing Principled Rationales for Family‐Based Departures, 13 Fed. Sentʹg Rep. 274, 277 (2001). ‐27‐ There may be cases, of course, where a defendantʹs claim of
mitigating circumstances does undermine his acceptance of responsibility, and
the district court may take that lack of genuineness into account. See U.S.
Sentencing Guidelines Manual § 3E.1 Application Note 3. An example is
provided by United States v. Douglas, in which the Fifth Circuit affirmed a
sentence where the district court granted acceptance‐of‐responsibility credit but
then upwardly departed because of the defendantʹs lack of remorse. 569 F.3d at
527‐28.
There the defendant was charged with felony possession of a
weapon; he had handed a loaded handgun to a child who then accidentally shot
himself. The district court awarded the defendant acceptance‐of‐responsibility
credit, but departed above the Guidelines range because of the defendantʹs lack
of remorse. Id. The sentencing allocution included the following exchange:
The Defendant: I have nothing to say. I have nothing to say your honor.
The Court: So you have not learned anything from the offense?
The Defendant: Have I learned anything?
The Court: Thatʹs exactly what I asked.
The Defendant: I should have stayed in Mexico. I shouldnʹt
‐28‐ have come back.
The Court: You have no remorse for what happened?
The Defendant: I didnʹt do it. He [the child] done it to himself.
Id. at 525. In contrast, in this case, Singh did show remorse. His efforts to seek
mercy did not undermine his acceptance of responsibility.
ʺSentencing, that is to say punishment, is perhaps the most difficult
task of a trial court judge.ʺ Jack B. Weinstein, Does Religion Have a Role in
Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007). While there are many
competing considerations in every sentencing decision, a sentencing judge must
have some understanding of ʺthe diverse frailties of humankind.ʺ See Woodson v.
North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion). In deciding what
sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of
punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of
spirit, that compassion which causes one to know what it is like to be in trouble
and in pain.ʺ Guido Calabresi, What Makes a Judge Great: To A. Leon
Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten
Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209,
209 (1979) (ʺBe kind. If we judges could possess but one attribute, it should be a
‐29‐ kind and understanding heart. The bench is no place for cruel or callous people
regardless of their other qualities and abilities. There is no burden more onerous
than imposing sentence in criminal cases.ʺ).
To the extent the district court increased Singhʹs punishment
because of a perception that in attempting to explain his actions and plead for
mercy he did not fully accept responsibility, it committed procedural error.
C. The Request for Reassignment
Singh requests that we order that the case be reassigned on remand
to a different judge for resentencing.
ʺRemanding a case to a different judge is a serious request rarely
made and rarely granted.ʺ United States v. Awadallah, 436 F.3d 125, 135 (2d Cir.
2006). We will grant a request for reassignment on remand only in ʺʹunusual
circumstances.ʹʺ United States v. Brennan, 395 F.3d 59, 75 (2d Cir. 2005) (quoting
United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977)). We are not persuaded that
reassignment is necessary or appropriate here. We are confident that on remand
the experienced and capable district judge will conduct a full resentencing, in
compliance with all procedural requirements, and impose a sentence that is fair,
reasonable, and sufficient but not longer than necessary to meet the goals of
justice.
‐30‐ CONCLUSION
The judgment of the district court is VACATED and the case is
REMANDED for resentencing. The mandate shall issue forthwith.
‐31‐