JOSÉ A. CABRANES, Circuit Judge:
Defendant Edwin Sanchez appeals from a sentence of 288 months' imprisonment and 10 years' supervised release imposed by the District Court (Alan H. Nevas, Judge).
Accordingly, we
Sanchez pleaded guilty to one count of conspiring to possess, with intent to distribute, over 1,000 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A). The statutory mandatory minimum for this crime is normally 10 years' imprisonment and five years' supervised release. Id. § 841(b)(1)(A).
The same day as the guilty plea, however, the Government filed a second-offender information under 21 U.S.C. § 851, alleging that Sanchez was subject to enhanced penalties based on his prior Connecticut conviction for possession of narcotics. This provision increased the mandatory minimum for Sanchez's crime to 20 years' imprisonment and 10 years' supervised release. Id. § 841(b)(1)(A).
This appeal arises from the fact that the District Court's imposition of a prior-conviction enhancement — which raised Sanchez's mandatory minimum sentence — was improper. Because Sanchez did not object at his sentencing hearing, we review only for plain error. Plain error exists where
United States v. Tarbell, 728 F.3d 122, 126 (2d Cir.2013) (quoting United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010)).
The first two prongs of the plain error test are not in dispute. The Government concedes that it was a clear error to treat Sanchez's Connecticut narcotics conviction as a prior felony drug conviction, because the State narcotics law for which Sanchez was convicted was not coterminous with the federal narcotics laws. See McCoy v. United States, 707 F.3d 184, 187 (2d Cir. 2013). It was therefore improper for the District Court to rely on this conviction under the "categorical approach" — that is, "consider[ing] the offense generically, ... and not in terms of how an individual offender might have committed it on a particular occasion." Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). The Government concedes also that it did not and cannot demonstrate that Sanchez's prior conviction actually qualified as a felony drug offense, because the pertinent records are no longer available. See generally Shepard v. United States, 544 U.S. 13, 19-23, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Accordingly, it is undisputed that the appropriate mandatory minimum was imprisonment of 10 years, rather than 20 years (and, concomitantly, supervised release of five years, rather than 10 years).
With respect to the term of supervised release, the Government concedes that remand is necessary. Appellee's Br. 2. This is undoubtedly so, because the District Court sentenced Sanchez to the exact mandatory minimum term of 10 years, which was incorrectly calculated.
With respect to the term of imprisonment, however, the Government argues that Sanchez fails to meet his burden to establish plain error, because his substantial rights were not affected, and because the fairness and integrity of his sentence was not seriously compromised.
The Government's argument regarding the substantial rights prong rests primarily on our previous case, United States v. Deandrade, 600 F.3d 115 (2d Cir.2010). In Deandrade, the defendant similarly argued that a prior juvenile conviction did not constitute a prior felony conviction under § 841(b)(1)(A). We did not reach the merits of that argument, however, because we concluded it was "clear that the sentence was unaffected by Deandrade's juvenile drug offense." Id. at 120. We concluded that that was so because
Id. (emphasis in original).
The holding of Deandrade was, therefore, that an error in calculating the mandatory minimum must have made a difference in the defendant's sentence in order to affect a defendant's substantial rights. Cf. Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) ("Accordingly, in determining whether a remand is required under § 3742(f)(1), a court of appeals must decide whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors."). To determine whether the District Court's erroneously-calculated mandatory minimum affected Sanchez's sentence, we are required to look to "the record as a whole." Id. In Deandrade, we found it clear from the entirety of the record that the error did not make a difference to the sentence, because the defendant's Guidelines range was well above the mandatory minimum, and because the District Court specifically stated that the mandatory minimum was irrelevant to the sentence it imposed. 600 F.3d at 120.
Here, by contrast, the record reflects that the erroneously-calculated mandatory minimum did affect Sanchez's sentence. Unlike in Deandrade, where the District Court said it was imposing sentence that was "greater than 20 years without regard to the mandatory minimum," 600 F.3d at 120, the District Court here made no such statement. And although the District Court did not mention the mandatory minimum, the assumption of a 20-year minimum sentence permeates the record. Indeed, throughout the sentencing hearing, Sanchez's counsel argued that the range for the District Court to consider was between the mandatory minimum sentence (which he believed to be 20 years) and 30 years.
Sanchez appears to agree with the Government that, under our Court's existing precedent, his appeal should fail on plain error review. See, e.g., Appellant's Reply Br. 2. As noted above, however, we disagree with the broad reading of Deandrade subscribed to by both the Government and Sanchez. See, e.g., id. ("Prior to [Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ], this Circuit held that a defendant is not prejudiced by an incorrect mandatory minimum when the defendant's Guidelines range is not impacted, and the defendant receives a sentence above the incorrect mandatory minimum."). We have never adopted such a bright-line test, either in Deandrade or in subsequent cases. The sole basis for our decision to affirm the sentence in Deandrade was that the erroneously-calculated mandatory minimum "had no influence on the sentence that was imposed." 600 F.3d at 120. Here, our review of the record leads us to the opposite conclusion — that the error in calculating the mandatory minimum did affect Sanchez's sentence.
The other two cases relied upon by the Government are not to the contrary. In Sapia v. United States, we declined to remand solely because there was "no indication that any error affected the sentence." 433 F.3d 212, 218 (2d Cir.2005). And in United States v. Dominguez, the Government conceded that the mandatory minimum was miscalculated, but we concluded that that error too was harmless. 393 Fed.Appx. 773, 779 (2d Cir.2010) (summary order). Although the dicta in Dominguez — a non-precedential summary order — was perhaps phrased more broadly than necessary, the sole basis for our holding was that the error had not affected the sentence imposed. Again, in this case, unlike in Sapia and Dominguez, we have concluded that the error in calculating the mandatory minimum did affect Sanchez's sentence and that, therefore, a remand is required.
Accordingly, based upon our review of the record, we conclude that Sanchez has met his burden under plain error review to establish that his substantial rights were affected. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
We next assess whether this error seriously affected the "fairness, integrity or public reputation of judicial proceedings." Marcus, 560 U.S. at 262, 130 S.Ct. 2159; see also Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); Tarbell, 728 F.3d at 126.
As stated above, the assumption of a 20-year minimum sentence permeates the record, and the District Court never stated affirmatively that it had not considered the miscalculated mandatory minimum in imposing its 288-month sentence. Indeed, the record strongly suggests that the District Court relied on the incorrect minimum in imposing sentence. If this error were to stand uncorrected, Sanchez might face a longer sentence — perhaps substantially longer — than he otherwise would. We therefore conclude that the fairness and integrity of judicial proceedings were seriously affected by the District Court's
Accordingly, we vacate and remand for resentencing. We of course intimate no view as to the sentence that should be imposed on remand or as to the substantive reasonableness of the 288-month sentence the District Court imposed.
To summarize, we hold that, in the circumstances presented here, Sanchez's rights were substantially affected and the fairness and integrity of the judicial proceedings were seriously compromised — that is, there was "plain error" — where Sanchez's mandatory minimum sentence was miscalculated and where the record reflects that this miscalculation had an impact on the sentence imposed.
For the reasons set forth above, we
21 U.S.C. § 841(b)(1)(A) (emphasis supplied). In relevant part, the statute provides with respect to supervised release that
Id. (emphasis supplied).