Filed: Aug. 28, 2017
Latest Update: Mar. 03, 2020
Summary: 16-924 United States v. Genao UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2016 (Argued: February 27, 2017 Decided: August 28, 2017) Docket No. 16-924 _ UNITED STATES OF AMERICA, Appellee, —v.— ROMAN BARTOLO GENAO Defendant-Appellant. _ B e f o r e: KATZMANN, Chief Judge, LYNCH and CHIN, Circuit Judges. _ 1 Defendant-appellant Roman Bartolo Genao appeals from a sentence and final judgment of conviction entered on March 24, 2016, by the United States District Court for t
Summary: 16-924 United States v. Genao UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2016 (Argued: February 27, 2017 Decided: August 28, 2017) Docket No. 16-924 _ UNITED STATES OF AMERICA, Appellee, —v.— ROMAN BARTOLO GENAO Defendant-Appellant. _ B e f o r e: KATZMANN, Chief Judge, LYNCH and CHIN, Circuit Judges. _ 1 Defendant-appellant Roman Bartolo Genao appeals from a sentence and final judgment of conviction entered on March 24, 2016, by the United States District Court for th..
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16‐924
United States v. Genao
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2016
(Argued: February 27, 2017 Decided: August 28, 2017)
Docket No. 16‐924
_______________
UNITED STATES OF AMERICA,
Appellee,
—v.—
ROMAN BARTOLO GENAO
Defendant‐Appellant.
_______________
B e f o r e:
KATZMANN, Chief Judge, LYNCH and CHIN, Circuit Judges.
_______________
1
Defendant‐appellant Roman Bartolo Genao appeals from a sentence and
final judgment of conviction entered on March 24, 2016, by the United States
District Court for the Eastern District of New York (Sterling Johnson Jr, J.). Genao
was convicted of illegally reentering into the United States after having been
deported. At sentencing, the district court applied a 16‐level enhancement for a
prior conviction of a “crime of violence” under § 2L1.2(b)(1)(A)(ii) (2015) of the
United States Sentencing Guidelines, and sentenced Genao to 46 months’
imprisonment. We agree with Genao that the Pre‐Sentence Report (“PSR”)
misidentified one of his prior convictions and that, at least in the absence of
further explanation or findings not made by the district court, no prior
conviction of Genao’s that was before the court could support the enhanced
sentence. We therefore VACATE Genao’s sentence and REMAND his case to the
district court for de novo resentencing.
_______________
MICHAEL T. KEILTY (Emily Berger, on the brief), Assistant United
States Attorneys, for Bridget M. Rohde, Acting United States
Attorney, Eastern District of New York, Brooklyn, NY, for
Appellee.
ALLEGRA GLASHAUSSER, Federal Defenders of New York, Inc.,
Appeals Bureau, New York, NY, for Defendant‐Appellant.
_______________
GERARD E. LYNCH, Circuit Judge:
Roman Bartolo Genao appeals from a judgment of the United States
District Court for the Eastern District of New York (Sterling Johnson Jr, J.),
sentencing him to 46 months in prison upon his plea of guilty to a charge of
illegally attempting to reenter the United States after having been deported. He
2
argues that his sentence was procedurally unreasonable because the district court
did not correctly calculate the sentencing range recommended by the United
States Sentencing Guidelines and to give a sufficient explanation for the sentence
imposed. He also argues that his sentence was substantively unreasonable
because it was excessive under the circumstances. Because we find merit in
Genao’s procedural arguments, we VACATE the sentence and REMAND to the
district court for de novo resentencing.
BACKGROUND
In 2009, Genao, a national of the Dominican Republic and a long‐term
lawful permanent resident of the United States, was convicted in New York state
court of first‐degree burglary and first‐degree robbery. According to the
Presentence Investigation Report (“PSR”) prepared by the United States
Probation Office in connection with the present case, police reports described the
2009 crime as a home invasion in which Genao “pushed his way into the victim’s
home, grabbed her by the hair, placed a knife against her throat, and demanded
money,” obtaining $1,200 in cash and a signed check for $4,000 payable to cash,
and later “called the victim via telephone, and told her that if she called the
3
police or anyone else, he would kill her family and burn down her home.” PSR ¶
24. Genao received a six‐year prison sentence, and, after completing his term of
incarceration in February 2015, was deported and told that he could not return to
the United States. Genao attempted to reenter the United States on August 23,
2015 by flying via commercial airline to New York City, but was detained upon
arrival. He was indicted for illegal reentry in violation of 8 U.S.C. §§ 1326(a) and
(b)(2), and pleaded guilty to the offense on November 19, 2015.
The PSR prepared in connection with Genao’s sentencing did not
accurately describe the charges on which he had been convicted in the prior New
York case. Although the PSR correctly stated that Genao had been convicted
under New York Penal Law § 140.30(3) for first‐degree burglary with a
dangerous instrument, it incorrectly identified Genao’s robbery conviction as one
of second‐degree robbery of a motor vehicle under New York Penal Law
§ 160.10(3), when his actual crime of conviction was first‐degree robbery with a
dangerous instrument under New York Penal Law § 160.15(3). The precise
nature of the conviction was relevant to the calculation of Genao’s Guidelines
sentencing range: relying on the incorrect robbery conviction, the PSR calculated
4
that Genao’s base offense level of 8 should be increased by 16 levels on the basis
that second‐degree robbery under New York law is a “crime of violence”
warranting an enhanced sentence under the version of the Guidelines then in
effect. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). 1 This 16‐level enhancement,
coupled with his criminal history category of III, and a three‐level credit for
accepting responsibility for the offense, raised his advisory Guidelines
sentencing range to 46–57 months of imprisonment, as compared to the 18‐24
month advisory range Genao would have been accorded based on the 8‐level
enhancement for “a conviction of an aggravated felony” that was not a “crime of
violence.” Id. § 2L1.2(b)(1)(C) (2015).
Defense counsel objected to the 16‐point enhancement both orally and in
writing, arguing that the robbery was not a crime of violence because robbery
under New York law requires only de minimis use of force. At the sentencing
hearing, the sentencing judge responded skeptically, asking, “[H]e put a knife to
the throat of a victim, had her deposit a $4,000 check into his account. You say
1 The relevant Guidelines have since been amended, and use a somewhat simpler
system for calculating enhancements to the base offense level for illegal reentry based
on crimes committed prior to the illegal reentry offense. See U.S.S.G. § 2L1.2(b)(2) (2016).
5
that’s not a crime of violence?” App. 31. Characterizing the application of the
enhancement as “an academic issue,” defense counsel reminded the court that
under the categorical approach, the sentencing court must “not look at the actual
facts but look at the facts that the least culpable person could commit if they were
sentenced to that crime.” App. 31–32. As explained in more detail below, to
determine whether a prior offense is a “crime of violence” that requires
application of a sentencing enhancement, the sentencing judge is to consider only
the necessary elements of the statutory definition of the crime, rather than the
facts particular to the defendant’s conduct. See United States v. Reyes, 691 F.3d
453, 458 (2d Cir. 2012) (describing the necessary inquiry for determining whether
predicate offense is a “crime of violence” under the analogous career offender
guidelines, U.S.S.G. § 4B1.2).Without explanation, the sentencing court rejected
defense counsel’s arguments on the crime of violence issue, added the 16‐point
enhancement, and determined that the Guidelines range was 46–57 months. The
court then stated, without further elaboration, that it had “consider[ed] the
factors of 3553(a)” and sentenced Genao to a term of imprisonment of 46 months,
a $100 special assessment, and three years’ supervised release. App. 36.
6
DISCUSSION
Genao now appeals his prison sentence, which he contends is both
procedurally and substantively unreasonable.
I. Procedural Unreasonableness
We turn first to Genao’s procedural unreasonableness claim. A district
court commits procedural error “when it 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, 714 F.3d 742, 746 (2d Cir. 2013) (internal citation and
quotation marks omitted). “A district court may not presume that a Guidelines
sentence is reasonable; it must instead conduct its own independent review of
the sentencing factors, aided by the arguments of the prosecution and defense.”
United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (footnote
omitted).
Genao argues that his sentence was procedurally unreasonable because the
district court, over the explicit objection of defense counsel, incorrectly applied
7
the 16‐level enhancement, and because “the district court fell short of satisfying
the basic requirements of § 3553(c) [when] it provided no reason for its choice of
sentence,” Def. Br. at 24, an objection Genao concedes he did not raise below.2 In
this case, the two issues somewhat overlap, insofar as our review of the
Guideline calculation is hampered by the fact that the sentencing court did not
explain the reasons for its application of the 16‐level enhancement, or for its
rejection of Genao’s argument based on the categorical approach.
A. Statements of Reasons
We begin by noting the importance of an adequate statement of reasons for
the selection of a particular sentence. Adequate explanation is critical to the
2 The presence or absence of an objection below affects the standard of review applied
on appeal. Where an objection has been made, we review the district court’s application
of the Guidelines de novo, where, as here, the interpretation of the Guidelines is in
question. See United States v. Folkes, 622 F.3d 152, 156 (2d Cir. 2010). In contrast, “[w]e
review errors not raised in the district court under the plain error standard of Rule
52(b), which states that ‘[a] plain error that affects substantial rights may be considered
even though it was not brought to the [lower] court’s attention.’” United States v.
Wernick, 691 F.3d 108, 113 (2d Cir. 2012) (quoting Fed. R. Crim. P. 52(b)). To be plain
error, “there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If
all three conditions are met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467
(1997) (alterations in original) (citation and internal quotation marks omitted).
8
discharge of the sentencing court’s responsibility under 18 U.S.C. § 3553(c),
which instructs that “[t]he court, at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence” (emphasis added). The
sentencing court “must make an individualized assessment based on the facts
presented.” United States v. Williams, 524 F.3d 209, 215 (2d Cir. 2008) (quoting Gall
v. United States, 552 U.S. 38, 50 (2007)). “Requiring judges to articulate their
reasons serves several goals,” including “to ensure that district courts actually
consider the statutory factors and reach reasoned decisions” for the chosen
sentence. Cavera, 550 F.3d at 193.
Here, after stating that it would apply the 16‐level enhancement, the
sentencing court explained only that it had “taken into consideration the factors
of 3553(a), oral argument and the submissions, and . . . believe[d that] the
sentence that [wa]s sufficient but not greater than necessary to meet the aims of
the statute” was 46 months’ imprisonment. App. 36. Moreover, the court did not
provide any further explanation for the choice of sentence in the written
statement of reasons. “Stating no reasons at all ‘plainly’ falls short of the
requirement to state reasons that is set forth in § 3553(c), no matter what the
9
required level of ‘specificity’ may be.” United States v. Lewis, 424 F.3d 239, 245 (2d
Cir. 2005); see also United States v. Zackson, 6 F.3d 911, 923–24 (2d Cir. 1993)
(remanding for an adequate statement of reasons where the sentencing judge’s
explanation was simply “I have considered everything”). It could perhaps be
inferred from the court’s question citing the PSR’s description of the facts
allegedly underlying Genao’s state‐court conviction that the court was concerned
about the seriousness of his prior criminal conduct, which could bear on a
number of the sentencing factors listed in 18 U.S.C. § 3553(a). See, e.g.,
§ 3553(a)(1) (instructing sentencing courts to consider “the history and
characteristics of the defendant”); § 3553(a)(2)(C) (instructing sentencing courts
to consider the need for the sentence “to protect the public from further crimes of
the defendant”). But the defendant, the public, and appellate courts should not
be required to engage in guesswork about the rationale for a particular sentence.
Rita v. United States, 551 U.S. 338, 356 (2007).
There is no requirement that a judge imposing a sentence provide lengthy
or elaborate explanations of the often multiple aggravating and mitigating
factors about the offense and the offender, or the precise weight assigned by the
10
court to the various, sometimes competing policy considerations relevant to
sentencing. The line between appropriately succinct and inadequately silent may
be difficult to draw in particular cases. Here, however, the sentencing court’s
sparse and general remarks about the particular sentence are compounded by
the absence of an explanation for the legal ruling applying the 16‐level
enhancement for prior commission of a “crime of violence.” Insofar as any
explanation for that ruling can be inferred from the record, it appears to be one
that is legally flawed: the court appears to have found that Genao’s crime was a
violent one based on the particular facts allegedly underlying his conviction,
when the law, as mentioned above and discussed in more detail below, requires
the sentencing judge to look only to the necessary elements of the statutory
definition of the crime, rather than the particular facts of the defendant’s
conduct, in making that judgment. See Reyes, 691 F.3d at 458.
The absence of an explanation for that ruling is significant because defense
counsel argued, both in a written submission and at the sentencing hearing, that
the enhancement that elevated Genao’s guideline range from 18–24 months to
46–57 months should not have applied. Nevertheless, the court did not explain
11
why it rejected that argument, nor identify why (or which of) Genao’s prior
convictions constituted a “crime of violence.” “Where the defendant or
prosecutor presents nonfrivolous reasons for imposing a different sentence,” the
sentencing court should typically “explain why he has rejected those
arguments,” which “provide[s] relevant information to . . . the court of appeals.”
Rita, 551 U.S. at 357, 358. Particularly given the necessarily complex analysis
required by the categorical approach, and the confusion in the PSR about the
precise offenses of which Genao had been convicted, such an explanation would
aid both the litigants and this Court in identifying the specific basis for the
“crime of violence” enhancement.
In the absence of such an explanation, we are left to conduct that analysis
in the first instance ourselves. Ordinarily, when the sentencing court fails to
explain its application of a sentencing enhancement in open court, “the ‘open
court’ requirement [of § 3553(c)] may [nevertheless] be satisfied by the district
court adopting the PSR in open court. Adopting the PSR in open court puts the
defendant on notice of the grounds for the sentence imposed since the defendant
usually has either seen his own PSR or is entitled to ask for it.” United States v.
12
Molina, 356 F.3d 269, 277 (2d Cir. 2004). As in Molina, here the district court did
not either state “its reasons or adopt the PSR in open court.” Id.3 “[W]e have
found that failure to satisfy the open court requirements of § 3553(c) . . . does not
constitute ‘plain error’ if the district court relies on the findings in the PSR, and
the factual findings in the PSR are adequate to support” the enhancement in
question. United States v. Carter, 489 F.3d 528, 540 (2d Cir. 2007). Here, however,
as will appear, the findings of the PSR do not clearly support the enhancement.
B. Robbery Conviction as a “Crime of Violence”
As noted above, the PSR incorrectly identified Genao’s prior robbery
conviction as second‐degree robbery of a motor vehicle under N.Y. Penal Law
§ 160.10(3).4 And while the PSR indicated that the conviction was “verified” by
“court records” as well as the certificate of disposition, the government did not
attach those records to its sentencing memorandum, that memorandum also cited
the wrong statutory provision, and there is no evidence that even a single
3 The sentencing judge did adopt the PSR in the written Statement of Reasons.
4 On appeal, the parties agree that Genao’s actual conviction was for first‐degree
robbery with a dangerous instrument in violation of N.Y. Penal Law § 160.15(3).
13
document that correctly identified Genao’s prior convictions was before the
sentencing court.
The absence of correct information concerning Genao’s prior robbery
conviction is significant because whether either of his convictions constituted a
“crime of violence” for purposes of the Illegal Reentry Guideline provision’s
specific offense enhancement was the chief legal issue in dispute during the
sentencing hearing. Defense counsel objected to the PSR’s recommended 16‐level
enhancement for a “crime of violence” based on the robbery conviction, arguing
that without that enhancement, Genao’s Guidelines range would drop from 46–
57 months to 18–24 months. Genao’s objection was well taken: because Genao in
fact had never pleaded guilty to the charge identified in the PSR — second‐
degree robbery in violation of N.Y. Penal Law § 160.10(3) — that purported
robbery conviction could not support the application of the 16‐level
enhancement.
C. Burglary Conviction as a “Crime of Violence”
Our inquiry does not end there, however. At sentencing, the government
argued that whether the robbery conviction qualified as a crime of violence
14
under the categorical approach was “moot” because Genao’s first‐degree
burglary conviction could also support the enhancement, since “in the sentencing
guidelines burglary is also listed as a crime of violence.” App. 35–36. Despite the
government’s assurance, however, that issue is not so straightforward. The
commentary to the relevant portion of the Guidelines in effect at the time of
Genao’s sentence stated that:
For the purposes of subsection (b)(1):
‘Crime of violence’ means any of the following offenses
under federal, state, or local law: . . . burglary of a
dwelling, or any other offense under federal, state, or
local law that has as an element the use, attempted use,
or threatened use of physical force against the person of
another.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015). If the police reports relating to Genao’s
conviction are correct, the actual behavior for which he was convicted was the
burglary of a dwelling, in the narrowest sense of the word. “In determining
whether a prior conviction can serve as a predicate offense for a [sentencing]
enhancement,” however, the sentencing judge must apply either the “categorical
or modified categorical approach.” United States v. Beardsley, 691 F.3d 252, 259 (2d
Cir. 2012). Both approaches require the sentencing court to consider the
15
minimum elements that must be proven beyond a reasonable doubt to secure a
conviction for that offense.
Under the categorical approach, the sentencing court must “‘look only to
the statutory definitions’—i.e., the elements—of a defendant’s prior offenses, and
not ‘to the particular facts underlying those convictions.’” Descamps v. United
States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v. United States, 495 U.S. 575,
600 (1990)). One of the justifications for the categorical approach’s “elements‐
only inquiry” is a concern for fairness to defendants. Mathis v. United States, 136
S. Ct. 2243, 2253 (2016). Even when a defendant goes to trial, reliance on the
“non‐elemental fact[s]” of a prior conviction “are prone to error” because “a
defendant may have no incentive to contest [at trial] what does not matter under
the law” and may “even be precluded from doing so.” Id. In such a circumstance,
“inaccuracies should not come back to haunt the defendant many years down
the road by triggering a lengthy mandatory sentence.” Id. Similarly, when a
defendant pleads guilty, he need only admit to the specific elements of the
charged offense, and has no reason either to admit or contest prior governmental
accounts of his alleged conduct.
16
The analysis required by the categorical approach is important where an
aspect of the calculation of a defendant’s Sentencing Guidelines range turns on
the single factor of a defendant’s prior criminal record. Where a particular
sentencing enhancement applies simply because the defendant has been
convicted of a particular category of crime — here, a “crime of violence” — it is
critical that the prior conviction meets the specific criteria established by the
Sentencing Commission for the application of that enhancement. After all, the
district court lacks discretion to alter the Guidelines calculation because, for
example, the particular facts of the prior offense are mitigated in some way, so
long as the predicate prior offense is of the nature specified in the statute. The
converse also follows: Since the Guidelines calculation turns on the offense of
conviction, if that offense is not inherently of the nature specified by Congress,
the court has no authority to decide that the particular facts of the offense are
sufficiently bad that the enhancement applies nonetheless.
Here, citing to Mathis, 136 S. Ct. at 2251, and Shepard v. United States, 544
U.S. 13, 16 (2005), the government concedes on appeal that first‐degree burglary
under New York law does not qualify as a “crime of violence” under the
17
enumerated offenses clause of the Guidelines definition because the New York
burglary statute is broader and reaches more conduct than the generic federal
definition of burglary.5 Nevertheless, the government argues that Genao’s first‐
degree burglary conviction could constitute a crime of violence by satisfying the
force clause. See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (reaching “any other offense . . .
that has as an element the use, attempted use, or threatened use of physical force
against the person of another”). Invoking the “modified categorical approach,”
the government contends that the relevant sentencing documents demonstrate
that Genao’s conviction for burglary in the first degree was based on N.Y. Penal
Law § 140.30(3), which requires the use or threatened immediate use of a
dangerous instrument.
Under the modified categorical approach, for “statutes having multiple
alternative elements[,] . . . a sentencing court [may] look[] to a limited class of
documents (for example, the indictment, jury instructions, or plea agreement and
5 This concession is based on the conclusion that under New York law, a “dwelling” is
defined as a “building” that is “usually occupied by a person lodging therein at night,”
N.Y. Penal Law § 140.00(3), and a “building” in turn may include, among other things,
“any structure, vehicle or watercraft,” id. § 140.00(2). See United States v. Lynch, 518 F.3d
164, 170 n.8 (2d Cir. 2008) (noting New York’s “expansive definition of ‘building’”).
18
colloquy) to determine what crime, with what elements, a defendant was
convicted of.” Mathis, 136 S. Ct. at 2249 (citation omitted). These documents are
known as “Shepard documents.” See generally Shepard, 544 U.S. at 20.
“Accordingly, the modified categorical approach requires a two‐step process:
‘first, [the sentencing court] determine[s] if the statute is divisible, such that some
categories of proscribed conduct render an [enhancement appropriate] . . . ;
second, [the court] consult[s] the record of conviction to ascertain the category of
conduct of which the [defendant] was convicted.’” United States v. Moreno, 821
F.3d 223, 227 (2d Cir. 2016) (quoting Lanferman v. Bd. of Immigration Appeals, 576
F.3d 84, 88–89 (2d Cir. 2009)).
We can assume for purposes of this appeal that the New York first‐degree
burglary statute is divisible, and that a conviction under subdivision 3 would
satisfy the use of force prong of the “crime of violence” definition. None of the
Shepard documents pertaining to Genao’s conviction, however, were before the
sentencing court, and that court did not engage in any inquiry concerning
whether Genao’s burglary conviction might have constituted a crime of violence
under the modified categorical approach. At no point did the court look to the
19
elements of the conviction; instead, it referenced only the “particular facts
underlying [the] conviction[].” Descamps, 133 S. Ct. at 2283 (quoting Taylor, 495
U.S. at 600). Without the Shepard documents, we do not believe the burglary
conviction could provide “factual findings in the PSR . . . adequate to support the
sentence” in the absence of the court’s own explanation for the chosen sentence.
Carter, 489 F.3d at 540.6
6 Though we assume for purposes of this decision that first‐degree burglary conviction
under N.Y. Penal Law § 140.30(3) could constitute a crime of violence under the force
clause of U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015), we do not decide the point, since a
potential counter‐argument is available. To obtain a conviction under N.Y. Penal Law
§ 140.30(3), the state must prove beyond a reasonable doubt that either the “person
guilty of burglary in the first degree . . . or another participant in the crime . . . use[d] or
threaten[ed] the immediate use of a dangerous instrument.” N.Y. Penal Law § 140.30(3).
Genao argues that for “a crime of violence” to be based on the use, attempted use, or
threatened use of force, the defendant’s use of force must be intentional. [Reply 4] See
Leocal v. Ashcroft, 543 U.S. 1, 8, 9 (2004) (interpreting the identical force clause in the
definition of “crime of violence” in 18 U.S.C. § 16 and holding that the “critical aspect”
of the force clause is that the “use . . . of physical force against the person” requires
“active employment” and “a higher degree of intent than negligent or merely accidental
conduct”) (emphasis in original); see also United States v. Castleman, 134 S. Ct. 1405, 1414
n.8 (2014) (“Although Leocal reserved the question whether a reckless application of
force could constitute a ‘use’ of force, the Courts of Appeals have almost uniformly held
that recklessness is not sufficient.” (citation omitted)). That is relevant because under
New York law, a defendant is strictly liable for any aggravating factors present during
the robbery, even if those factors were the result of a co‐defendant’s conduct. See People v.
Santiago, 564 N.Y.S.2d 412, 413 (1st Dep’t 1991). As a result, it is possible that a
defendant may be convicted under § 140.30(3) without himself using or threatening the
use of a dangerous weapon. In any event, this analysis was not untaken at the time of
20
Because the sentencing court did not explain the reasoning behind the
sentence imposed, or expressly adopt the PSR in open court, and because the
factual findings in the PSR were not, by themselves, clearly adequate to support
the sentence, we conclude that Genao’s sentence was procedurally unreasonable
and that the sentencing judge therefore erred in calculating the Guidelines range.
Carter, 489 F.3d at 540 (failure to explain adequately application of enhancement
where factual findings in PSR do not support such application constitutes plain
error); see also United States v. Ware, 577 F.3d 442, 452, 453 (2d Cir. 2009) (where
PSR’s findings are inadequate, “the absence of a meaningfully explanatory
statement undermines understanding of, trust in, and respect for the court and
its proceedings on the part both of those who are themselves parties to the
proceeding and those who are not”) (internal quotation marks omitted).
D. Relevance of the Facts Underlying the Conviction
The above analysis may appear unduly technical. Nowhere in his appellate
brief, and at no time during the sentencing proceedings before the district court,
sentencing to support the alternative argument that the burglary conviction constituted
a crime of violence under the modified categorical approach. In light of our disposition
of the case, therefore, we need not and do not decide the question.
21
has Genao contested that his actual conduct in connection with his robbery and
burglary convictions was as described in the PSR. If those are indeed the facts,
the nature of that conduct seems far more relevant to a sentencing decision than
the abstract elements of the statutory offenses to which he pled guilty, or the
hypothetical least serious conduct that could support a conviction under those
statutes. Thus, the district court’s assumption that his crimes were
unquestionably violent has a strong common sense appeal.
Nevertheless, precedent requires that the categorical approach be followed
in calculating the Guidelines range. That analysis is an artifact of the nature of
the Sentencing Guidelines. Particularly when the Guidelines confined the
sentencing court within a narrow, near‐mandatory sentencing range, it was
important that in applying Guidelines that imposed severe sentencing
consequences based on the single factor of a prior conviction for a particular
offense of a designated nature, the sentencing court had to be certain that the
crime of conviction was indeed, categorically, of that nature.
It bears emphasis, however, that while the non‐elemental facts underlying
a previous conviction may not be considered for the purposes of applying
22
Guidelines enhancements, those facts, if established to the satisfaction of the
district court, are not thereby rendered irrelevant to sentencing. Under United
States v. Booker, 543 U.S. 220 (2005), the technicalities governing the Sentencing
Guidelines do not represent the final word on a defendant’s sentence. Rather, the
sentencing judge retains considerable discretion to select the sentence that is
necessary to accomplish the purposes of sentencing, taking into account the
factors set forth in § 3553(a), including “the nature and circumstances of the
offense and the history and characteristics of the defendant,” 18 U.S.C.
§ 3553(a)(1), based on a wide‐ranging factual inquiry. Thus, “[a] sentencing judge
has very wide latitude to decide the proper degree of punishment for an
individual offender and a particular crime.” Cavera, 550 F.3d at 188.
“As a matter of administration and to secure nationwide consistency, the
Guidelines should be the starting point and the initial benchmark.” Gall, 552 U.S.
at 49. It thus remains important for the district court to follow the rules for
application of the Guidelines strictly and correctly. Accordingly, the sentencing
court here was bound to use the categorical approach in determining whether
the particular New York robbery and burglary offenses of which Genao had been
23
convicted were, based on their elements, categorically crimes of violence that
required an enhanced Guidelines range under the (now repealed) Illegal Reentry
Guideline.
However, if the Guidelines represent the initial step in sentencing, they are
no longer the stopping point. “The Guidelines are not the only consideration” in
the determination of the sentence and the sentencing court cannot simply
“presume that the Guidelines range is reasonable.” Id. at 49‐50. The court must
carefully evaluate whether the particular circumstances before him or her
warrant a sentence outside the calculated range. In so doing, the court is
expected to “consider all of the § 3553(a) factors” and arrive at an
“individualized assessment based on the facts presented.” Id. In this instance,
therefore, the sentencing court remained free to impose a sentence outside the
Guidelines if it found that result appropriate under all of the circumstances.
Because the district court here short‐circuited that process by deciding,
incorrectly, that the § 2L1.2(b)(1)(A)(ii) enhancement applied to this case, the
sentence was procedurally unreasonable. But the sentencing judge’s impulse that
it was appropriate to consider the underlying circumstances was not inherently
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erroneous. The actual, detailed facts of Genao’s actions, both in his prior criminal
behavior and in committing his current offense, matter, and after a proper
inquiry may be taken into account by the judge at the appropriate point in the
sentencing proceeding (along with all other relevant aggravating or mitigating
facts), even if they are not fully captured in the specific factors that enter into the
Guideline calculation.
II. Substantive Unreasonableness
Because we vacate Genao’s sentence as procedurally unreasonable, we
need not address Genao’s alternate argument that his sentence was substantively
unreasonable. See Cavera, 550 F.3d at 190, citing United States v. Williams, 524 F.3d
209, 215‐17 (2d Cir. 2008). Addressing that argument would be particularly
inappropriate here, given that when Genao is resentenced on remand, he will be
sentenced under the current version of the Sentencing Guidelines, which differ
from those discussed above. See United States v. Reese, 33 F.3d 166, 173 (2d Cir.
1994) (“When imposing [a] sentence the Guidelines to be used are those in effect
on the date of sentencing, unless such application implicates the Ex Post Facto
Clause of Article I of the Constitution.” (citation omitted)); see generally 18 U.S.C.
25
§ 3553(a)(4). The arcane considerations discussed above regarding application of
the “crime of violence” enhancement have now been obviated by the
amendments to U.S.S.G. § 2L1.2, adopted subsequent to Genao’s sentencing,
which replaced the enhancement for a “crime of violence” with an enhancement
calculation based on the length of the longest sentence imposed for a prior
criminal offense. See U.S.S.G. § 2L1.2(b)(2) (2016).7
Accordingly, we will vacate the sentence and remand for de novo
sentencing. See United States v. Rigas, 583 F.3d 108, 118 (2d Cir. 2009) (de novo
sentencing appropriate where there is a “‘cogent’ or ‘compelling’ reason for
resentencing de novo, such as a change in controlling law”).
7 Indeed, in adopting the amendment, the Sentencing Commission explained both that
application of the categorical approach to determine a “crime of violence” had been
“overly complex and resource‐intensive and often [led] to litigation and uncertainty”
and that the old “enhancements for certain prior felonies committed before a
defendant’s deportation were overly severe,” thus justifying the replacement of the
enhancement for a crime of violence with a new set of factors for determining the
offense level. See Nov. 1, 2016 Amendments to the Sentencing Guidelines, 27–28,
available at http://www.ussc.gov/sites/default/files/pdf/amendment‐process/official‐text‐
amendments/20160428_Amendments.pdf.
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CONCLUSION
We have considered defendant‐appellant’s remaining arguments and have
found in them no basis for reversal. For the reasons stated herein, the sentence
imposed by the district court is VACATED and the case is REMANDED for
resentencing de novo in accordance with the Guidelines in effect on the date that
Genao is resentenced.
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