Second Circuit Holds Prior Precedent Abrogated by Subsequent SCOTUS Decision
In United States v. Brown (Newman, Hall, and Chin), the Second Circuit addressed two related questions. First, the Circuit held that Dean v. United States, 137 S. Ct. 1170 (2017), abrogated prior circuit precedent in United States v. Chavez, 549 F.3d 119 (2d Cir. 2008), thereby allowing district courts to consider the severity of applicable mandatory consecutive sentences in determining the sentences for underlying predicate offenses. And, second, the panel concluded that the appropriate remedy under the facts presented was remand for resentencing, rather than merely for clarification.
Brown participated in armed robberies of drugstores that took place in 2013 and 2014. He was convicted of two robbery offenses and two firearms offenses. The firearms counts both carried mandatory consecutive minimum sentences. Therefore, at sentencing, Brown’s lawyer advocated for leniency on the robbery counts in light of the mandatory thirty two years Brown would serve on the firearms counts. However, without addressing defense counsel’s request for leniency, the district court imposed concurrent sentences of 7 years on each the robbery counts, which would run consecutive to the firearms counts, resulting in a total aggregate sentence of 39 years. Brown appealed on the question of whether the district court should have considered the harshness of the mandatory concurrent sentences under Dean.
The Court concluded that the district court was permitted, but not obligated, to consider the harshness of the mandatory consecutive sentences. In Dean, the Supreme Court held that although the firearms sentence must be consecutive to the underlying sentence, nothing in Section 924(c) requires that the underlying sentence be the same as it would have been absent the mandatory consecutive sentence. While noting that Dean had a slight ambiguity as to whether the consecutive sentences must be considered, the Court concluded that the best reading was that a sentencing judge may consider the severity of a mandatory consecutive minimum sentence, but is not required to do so. Because Chavez had held that such consideration was not permitted, the Circuit concluded that Chavez had necessarily been abrogated by Dean, but that it could not be sure that the district court had been aware of that abrogation, because the Circuit had not expressly disavowed Chavez and neither party brought Dean to the district court’s attention.
The uncertainty about whether the district court had been made aware of the change in governing law raised a second question that the Circuit had to resolve, namely, whether it should remand in order to give the district court the opportunity to clarify whether it had been aware of Dean, or to simply remand for full resentencing. Here, neither counsel nor the Probation Office brought Dean to the Court’s attention, and of course Chavez remained good law at sentencing, at least as a technical matter. The Circuit engaged in an interesting review of the many cases in which it followed each approach. Judge Newman, the decision’s author—as well as a former chief judge of the Second Circuit and a member of the Court for 40 years—was perhaps the perfect judge to conduct this review.
After reviewing the cases, the panel explained that a remand for clarification “avoid[ed] the inconvenience and expense of returning the defendant to court in the event that the judge explains that no misunderstanding existed.” At the same time, the panel realized that a remand “avoids the risk of the appearance that the sentencing judge has unjustifiably claimed a correct prior understanding.” The panel expressed its utmost confidence that the district judge would be “faithful” in reporting its prior understanding, but recognized that “some defendants and perhaps some defense counsel would likely be suspicious.”
Having conducted this careful review, the panel concluded that, based on precedent allowing for both types of remand in comparable circumstances, the decision on what type of remand was appropriate should be made on a case-by-case basis. In this case, the Circuit decided that remand for resentencing was more appropriate, based on the abrogation of Chavez and the failure of counsel and the Probation Office to raise this issue at sentencing. The panel also observed that with resentencing, the defendant will receive the benefit of Section 403(b) of the First Step Act, which should result in the imposition of only one mandatory minimum sentence—for seven years—rather than also receiving a second consecutive minimum sentence of twenty-five years. It was fortuitous indeed for the defendant that the Circuit decided to remand the case for resentencing rather than only for clarification.