17-3930
United States v. Smith



                         United States Court of Appeals
                            For the Second Circuit

                                     August Term 2019

                                Submitted: September 9, 2019
                                 Decided: February 3, 2020

                                         No. 17‐3930


                                 UNITED STATES OF AMERICA,

                                          Appellee,

                                              v.

                                        KARIM SMITH,

                                     Defendant‐Appellant.



                         Appeal from the United States District Court
                           for the Northern District of New York
                                 No. 15‐cr‐59, Sharpe, Judge.


Before: WESLEY, CHIN, AND SULLIVAN, Circuit Judges.

       Defendant‐Appellant Karim Smith challenges the procedural and
substantive reasonableness of his sentence upon violation of supervised release.
Overturning precedent to the contrary through the mini‐en banc process, we hold
that a district court is not required to complete a written statement of reasons form
for a sentence upon violation of supervised release because neither the Judicial
Conference nor the Sentencing Commission has issued a form for that purpose.
We further determine that the sentence imposed by the district court was both
procedurally and substantively reasonable. Accordingly, we affirm the court’s
judgment.

      AFFIRMED.

                                PAUL D. SILVER, Assistant United States Attorney
                                (Michael S. Barnett, Assistant United States
                                Attorney, on the brief), for Grant C. Jaquith, United
                                States Attorney for the Northern District of New
                                York, Albany, New York, for Appellee United States
                                of America.

                                MOLLY CORBETT, Assistant Federal Public
                                Defender (James P. Egan, Assistant Federal Public
                                Defender, on the brief), for Lisa A. Peebles, Federal
                                Public Defender for the Northern District of New
                                York, Albany, New York, for Defendant‐Appellant
                                Karim Smith.

RICHARD J. SULLIVAN, Circuit Judge:

      Karim Smith challenges the procedural and substantive reasonableness of

his sentence following his violation of supervised release (“VOSR”). He maintains

that the sentence is procedurally unreasonable because the district court (Sharpe,

J.) (1) did not adequately explain the reasons for it, (2) placed undue weight on the

nature of Smith’s new criminal conduct to the exclusion of his breach of the court’s

trust, and (3) failed to provide a written statement of reasons (“SOR”) for the

sentence.   He also contends that the sentence is substantively unreasonable



                                         2
because the court’s proffered justification does not support it. Smith’s claims are

rejected. We AFFIRM.

                                        I.

      Smith originally pleaded guilty to two counts of distributing heroin in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court sentenced him

principally to six months’ imprisonment and six years’ supervised release. Shortly

after he was released, Smith violated the terms of his supervised release by

(1) engaging in new criminal activity, (2) associating with a felon, (3) failing to

secure and maintain legitimate employment, and (4) testing positive for the use of

alcohol. Specifically, Schenectady police arrested Smith for his involvement in a

“physical altercation,” during which he drew a handgun and fired a shot at one of

the persons involved, striking him in the leg. A New York state court jury

convicted Smith of two counts of criminal possession of a weapon in the second

degree, one count of assault in the second degree, one count of criminal possession

of a weapon in the third degree, and reckless endangerment in the second degree.

The state court sentenced him to twelve years’ imprisonment.


      Following his state court conviction, Smith appeared before the district

court for a VOSR hearing on his alleged violations. During that proceeding, Smith


                                        3
admitted to the state crime of criminal possession of a weapon in the second

degree for which he was convicted, in full satisfaction of the specifications in the

amended violation petition, and the court immediately proceeded to sentencing.

The advisory Guidelines range for Smith’s violation was four to ten months’

imprisonment with a statutory maximum of three years. Urging the court to

impose the three‐year maximum term of imprisonment, the government

contended that “the guidelines understate[d] the severity of the violation,” App.

at 141, noting that Smith had been “carrying a loaded and concealed firearm a

mere eight months into his supervision,” which he used to “sho[o]t into a group

of people without ever seeing anyone produce a gun,” 

The government

also argued that Smith “posed a danger to his probation officer,” and that he had

severely breached the court’s trust. 

government averred that the

maximum term of imprisonment would protect the public, provide Smith the

opportunity to mature and reform his conduct, and serve the sentencing objectives

in 18 U.S.C. § 3553(a).


      After hearing from defense counsel and Smith, the district court explained

that “the sole issue is . . . [w]hat is an appropriate sentence that will vindicate the

nature of the supervised release violation here.” 

The court recalled


                                          4
testimony from an evidentiary hearing conducted in connection with Smith’s

original sentencing in which it was alleged that Smith possessed a gun, and noted

that it had “said a thousand times I have no patience for the gun whatsoever.” 

The district court further observed that Smith fired a gun and shot

somebody in the leg and remarked that the shooting easily could have resulted in

that person’s death or in death or injury to a child or innocent bystander. The

district court considered Smith’s contention that he needed the gun to protect

himself, but rejected it.


      The district court then sentenced Smith to two years’ imprisonment, to run

consecutive to the undischarged state term, which the court deemed necessary

“[t]o vindicate the interest here in light of the substantiality of the underlying state

sentence.” 

court stated that an above‐Guidelines sentence was

warranted given the severity of Smith’s conduct and the potential for injury or

death to others. The district court further explained that “it’s essential under my

evaluation of the sentencing factors to send the message that federal courts have

no patience for guns, for gun violence, and that’s what it takes to vindicate the

interest here.” 

                                           5
      Smith objected to what he characterized as “the [c]ourt’s consideration of

and articulation of circumstances underlying the sentencing issue at the prior

proceeding.” 

To “make it clear for the circuit,” the district court

responded that it was not imposing the sentence “as a result of anything that

occurred in the prior conviction,” but “because of the gun violence associated with

this violation, and that’s what’s essential to vindicate the federal interest.” 

Smith challenges the procedural and substantive reasonableness

of his sentence. He contends that the sentence is procedurally unreasonable

because the district court (1) did not adequately explain the justification for

imposing an above‐Guidelines sentence, (2) placed inordinate weight on factors

other than the breach of the court’s trust, and (3) did not provide an adequate

written SOR for the sentence. He maintains that the sentence is substantively

unreasonable because the court’s justification was insufficient to support it.


                                          II.


      Before turning to the merits of Smith’s arguments, we must first determine

the scope of a district court’s obligation to explain its reasoning for a resentencing

following a VOSR. As a general matter, district courts must complete a written

SOR form in connection with sentences imposed when a defendant is originally

                                           6
convicted. 18 U.S.C. § 3553(c)(2). Relying on the same statute, we have also held

on several occasions that a sentencing court must set forth the reasons for a VOSR

sentence that is outside an advisory Guidelines range “in writing—with specificity

in a[n] [SOR] form that is part of the judgment.” United States v. Aldeen, 

, 251–52 (2d Cir. 2015) (internal quotation marks and citation omitted) (citing

United States v. Sindima, 

, 85 (2d Cir. 2007)); see also, e.g., United States v.

Paige, 531 F. App’x 122 (2d Cir. 2013). However, because those holdings were

based on a prior version of § 3553(c)(2) that was amended in 2010, we now

conclude that this line of cases should no longer be binding precedent in this

Circuit.


      We held in 2005 that § 3553(c)(2) applies in supervised release and probation

revocation proceedings. United States v. Lewis, 

, 244–45 (2d Cir. 2005).

However, at that time (and until May 2010), § 3553(c)(2) specifically stated that

when a court imposes a sentence outside the Guidelines range, its reasons for

doing so “must also be stated with specificity in the written order of judgment and

commitment.” 18 U.S.C. § 3553(c)(2) (2006). Accordingly, a district court erred if

it gave an oral but not written explanation for why it imposed a non‐Guidelines

sentence in a supervised release or probation proceeding, and this Court was


                                            7
permitted (but not required) to remand the case to the district court “to satisfy the

ministerial duty to memorialize its stated reasons in the written order of

judgment.” United States v. Verkhoglyad, 

, 137 (2d Cir. 2008) (citing 18

U.S.C. § 3553(c)(2) (2006)).


      In May 2010, however, § 3553(c)(2) was amended. The provision now

provides that, when a court imposes a sentence outside the Guidelines range, the

“reasons must also be stated with specificity in a[n] [SOR] form issued under

section 994(w)(1)(B) of title 28.” 18 U.S.C. § 3553(c)(2) (2019). Section 994(w)(1)

describes the written report that each district court must submit to the Sentencing

Commission “following entry of judgment.” As explained in that section, the

report must include a number of documents, one of which is “the written

[SOR] . . . (which shall include the reason for any departure from the otherwise

applicable guideline range and which shall be stated on the written [SOR] form

issued by the Judicial Conference and approved by the United States Sentencing

Commission).”     28 U.S.C. § 994(w)(1)(B) (emphasis added).          As amended,

§ 3553(c)(2) now requires that a written SOR be completed on a corresponding

form issued under § 994(w)(1)(B). To date, no such form has been issued by the

Judicial Conference or the Sentencing Commission for sentences imposed for


                                         8
violations of supervised release or probation. Criminal Justice Forms, Admin. Office

of the U.S. Courts, https://www.uscourts.gov/forms/criminal‐judgment‐forms

(last visited Feb. 3, 2020). Thus, unlike the form issued for judgments following

the initial sentencing (AO 245B), the form issued for judgments following

sentencing for a VOSR (AO 245D) does not include a section for an SOR.


       Since the 2010 amendment to § 3553(c)(2), we are one of only two courts to

have held that a written SOR is required for a VOSR sentence. See United States v.

Parks, 

, 992–94 (11th Cir. 2016).1 To the extent that our prior cases have

held that a district court is required to complete a written SOR following a VOSR,

those cases either relied on an outdated version of the statute or failed to consider

that the Judicial Conference has yet to issue, and the Sentencing Commission has

yet to approve, a “statement of reasons form” pursuant to § 994(w)(1)(B). In the

absence of such a form, it is, as a practical matter, impossible for the district court

to comply with the amended version of § 3553(c)(2). And though one could

question why the Judicial Conference and Sentencing Commission have failed to




1One other circuit has expressly rejected the view that § 3553(c)(2) requires a written SOR for a
VOSR sentence, albeit in an unpublished opinion. United States v. Alvarado, 448 F. App’x 197, 201–
02 (3d Cir. 2011). Another circuit has been presented with the opportunity to adopt that view
and declined to do so, finding it unnecessary to decide the question since the error, if any, was
harmless to the defendant. United States v. Lee, 

, 873–74 (7th Cir. 2018).

                                                9
issue such a form since the 2010 Amendment, 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.    Moreover, because the

written SOR is designed to assist the Sentencing Commission in “collect[ing] . . .

and disseminat[ing] information concerning sentences actually imposed,” 28

U.S.C. § 995(a)(15), and because § 3553(c) still requires the sentencing judge to

“state in open court the reasons for its imposition of the particular sentence,” the

lack of a written SOR will have no impact on the substantive rights of the

defendant.

      We recognize, of course, that a panel of our Court is “bound by the decisions

of prior panels until such time as they are overruled either by an en banc panel of

our Court or by the Supreme Court,” United States v. Wilkerson, 

, 732

(2d Cir. 2004), and thus ordinarily we cannot overturn an existing Circuit

precedent. However, we have circulated this opinion to all active members of this

Court prior to filing. See, e.g., Doscher v. Sea Port Grp. Sec., LLC, 

, 378

(2d Cir. 2016); Greathouse v. JHS Sec. Inc., 

, 107 & n.2 (2d Cir. 2015);

Diebold Found., Inc. v. Commʹr of Internal Revenue, 

, 183 & n.7 (2d Cir.

2013); Doe v. Bin Laden, 

, 70 & n.10 (2d Cir. 2011); Shipping Corp. of India



                                          10
Ltd. v. Jaldhi Overseas Pte Ltd., 

, 67 & n.9 (2d Cir. 2009); United States v.

Crosby, 

, 105 n.1 (2d Cir. 2005), abrogated on other grounds by United

States v. Fagans, 

(2d Cir. 2005); Jacobson v. Fireman’s Fund Ins. Co., 

, 268 n.9 (2d Cir. 1997).2 Therefore, we now hold that unless and until the

Judicial Conference and Sentencing Commission issue a written SOR form for

VOSR sentences in compliance with § 994(w)(1)(B), the sentencing judge need not

file a written statement of reasons for a VOSR sentence that is outside the advisory

Guidelines range. Having resolved this preliminary issue, we now turn to the

merits of Smith’s remaining contentions.


                                                 III.


       “Sentences for violations of supervised release are reviewed under the same

standard as for sentencing generally:                   whether the sentence imposed is

reasonable.” United States v. Brooks, 

, 100 (2d Cir. 2018) (internal

quotation marks and citations omitted). Reasonableness is reviewed “under a

deferential abuse‐of‐discretion standard.” See United States v. Betts, 

,




2 This process is often referred to as a “mini‐en banc.” See United States v. Parkes, 

, 230
n.7 (2d Cir. 2007); Jon O. Newman, The Second Circuit Review—1987–1988 Term: Foreword: In Banc
Practice in the Second Circuit, 1984–1988, 55 Brook. L. Rev. 355, 367–68 (1989) (explaining that
Second Circuit panels will occasionally circulate opinions “prior to filing when the panel deems
it important for the full court to be aware of what the panel proposes to say”).

                                                  11
201 (2d Cir. 2018) (internal quotation marks and citations omitted). Where, as here,

a defendant does not object at sentencing to a district court’s failure to explain its

reasoning, we review the procedural challenge for plain error. 

.


       A sentence is procedurally unreasonable if the district court “fails 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.” United States v. Chu, 

, 746 (2d Cir. 2013) (citation

omitted). While the degree of specificity required for the reasons behind a VOSR

sentence is less than that for plenary sentencing, see 

–

33, the court must still state its reasons in open court, 

.

Nevertheless, “[w]e have declined to articulate precise standards for assessing

whether a district court’s explanation of its reason for imposing a non‐Guidelines

sentence is sufficient.” United States v. Pereira, 

, 524 (2d Cir. 2006).

Significantly, “we do not require district courts to engage in the utterance of

‘robotic incantations’ when imposing sentences in order to assure us that they have




                                         12
weighed in an appropriate manner the various section 3553(a) factors.” 

(citations omitted).


      Here, the district court articulated its reasons for imposing the above‐

Guidelines sentence in open court, focusing on Smith’s possession and use of a

firearm, stating “I am not imposing this two‐year sentence as a result of anything

that occurred in the prior conviction. I’m imposing it because of the gun violence

associated with this violation, and that’s what’s essential to vindicate the federal

interest.” App. at 149. The court further noted that the gun posed a danger to the

supervising probation officers, as well as to members of the community. The court

acknowledged that it was departing from the Guidelines but noted that the

sentence imposed was still below the statutory maximum. On this record, we

conclude that the district court clearly explained in open court its reasons for

imposing an above‐Guidelines sentence. Accordingly, we find no procedural

error, let alone plain error, warranting resentencing.


      Review for substantive unreasonableness requires that we consider “the

totality of the circumstances, giving due deference to the sentencing judge’s

exercise of discretion, and bearing in mind the institutional advantages of district

courts.” United States v. Brown, 

, 80 (2d Cir. 2016) (citation omitted).


                                         13
We reverse for substantive unreasonableness “only when the trial court’s sentence

cannot be located within the range of permissible decisions.”          

marks and citation omitted).


       We see no reason to reverse the sentence here. Just under eight months after

leaving prison and commencing his term of supervised release, Smith discharged

a handgun into a group of people during an altercation, injuring one person. The

district court observed that he easily might have missed his target and killed an

innocent bystander. An above‐Guidelines sentence was appropriate, the court

explained, because it was necessary to vindicate the federal interest and

communicate the message that “federal courts have no patience for guns [or] for

gun violence.”    App. at 148.    The district court acknowledged the various

mitigating factors identified by Smith’s counsel, including that the environment in

which Smith lived left him feeling “the need to carry a gun to protect” himself. 

Nonetheless, the two‐year sentence does not “shock the conscience” or

constitute a “manifest injustice,” as it is not “shockingly high, shockingly low, or

otherwise unsupportable as a matter of law.” United States v. Rigas, 

,

123–24 (2d Cir. 2009). Accordingly, Smith’s substantive reasonableness challenge

also fails.


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                                     IV.


     We have considered Smith’s remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the district court’s judgment.




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