Second Circuit Employs “Mini-En Banc” to Relieve District Court of Requirement to Complete Non-Existent Form
In United States v. Karim Smith, the Second Circuit (Wesley, Chin, Sullivan) overturned its prior precedent and held that district courts need not complete a written ‘statement of reasons’ (“SOR”) form when sentencing a defendant during a violation of supervised release (“VOSR”) proceeding, at least until such a form is created by the Sentencing Commission.
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Karim Smith, a convicted heroin dealer, had been on supervised release for just eight months when he was involved in an altercation in which he shot a victim in the leg. He was convicted after a trial in state court and sentenced to serve twelve years’ imprisonment. Unsurprisingly, Smith’s supervised release was revoked. The District Court sentenced him to two years of imprisonment, noting that the shooting easily could have killed the victim or innocent bystanders including children.
On appeal, Smith raised a number of challenges to his sentence, most notably that the District Court had not provided a written SOR form for the sentence. At first blush, Smith seemed to have the right of it. Under 18 U.S.C. § 3553(c)(2), District Courts are required to announce in open court its reasons for imposing a given sentence, and—since the 2010 amendments to that statute—if the sentence is outside the Guidelines range, the District Court must specify in writing the reasons for imposing a non-Guidelines sentence in a SOR form. A SOR form is a document that is issued by the Judicial Conference and approved by the U.S. Sentencing Commission. See 28 U.S.C. § 994(2)(1)(B). This requirement serves the sentencing process by making appellate review easier, since the precise reasoning is memorialized in a formal writing. The Circuit had previously addressed this very issue and held that a SOR form is indeed required when a defendant is sentenced to a non-Guidelines sentence in a VOSR proceeding. See United States v. Aldeen, 792 F.3d 247, 251–52 (2d Cir. 2015); United States v. Paige, 531 F. App’x 122 (2d Cir. 2013).
This would seem an easy case, but for one problem: curiously, the Judicial Conference and Sentencing Commission have never issued and approved a SOR form to be used on VOSR proceedings. The existing form is for use only in initial sentencings. This means it is impossible for District Courts to comply with the requirements of § 3553(c)(2) when sentencing a defendant in a VOSR proceeding. The Court surmised that the panels in Aldeen and Paige were unaware that the form they had mandated did not actually exist. In any event, this panel reasoned that “it makes little sense to hold district courts accountable for that failure or to compel them on remand to concoct a form that they are not authorized to create in the first place.” Instead, it utilized the Second Circuit’s “mini-en banc” procedure to overrule Aldeen and those cases applying it. Under this procedure, a three-judge panel—which is normally bound by decisions of prior panels—may overrule a precedential decision absent objection from the active members of the Second Circuit. That is what happened here, and therefore until the Judicial Conference and the Sentencing Commission have created a written SOR form for VOSR proceedings, District Courts are not required to comply with the (impossible) requirement of completing one.
While the issue of the SOR requirement is not itself particularly noteworthy—the remedy is typically just a limited remand for the District Court put its oral reasoning into written form—this case is a rare example of the Court’s mini-en banc procedure. For a Court that seldom rehears cases en banc, the mini-en banc procedure is a useful mechanism when prior panels have overlooked an issue or come to conflicting determinations. The panel that authors the opinion sends it—by facsimile, the Court’s favored means of communication—to all active judges to make sure that no one objects to the proposed change in law. Here, the decision corrected a minor oversight by a prior panel which required District Courts to quite literally do the impossible. Will this decision serve as a needed reminder to the relevant administrators to prepare the SOR form? If the form is created, will the Circuit hold another mini-en banc to reverse itself again? Time will tell.
-By George B. Fleming and Harry Sandick