UNITED STATES OF AMERICA v. LESLIE MOORE (2017)

United States Court of Appeals, Second Circuit.

UNITED STATES OF AMERICA, Appellant, v. LESLIE MOORE, Defendant-Appellee.

No. 16-2529-cr

Decided: May 31, 2017

PRESENT: REENA RAGGI, SUSAN L. CARNEY, Circuit Judges, LEWIS A. KAPLAN, District Judge.† FOR APPELLANT: Paul D. Silver, Katherine E. Kopita, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, New York. FOR APPELLEE: Robert J. Boyle, Law Office of Robert J. Boyle, New York, New York.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on June 28, 2016, is VACATED, and this matter is REMANDED for further proceedings consistent with this order.

The United States appeals from what the district court itself characterized as an “illegal sentence.” J.A. 75. The challenged sentence of was imposed on defendant Leslie Moore following her guilty plea to conspiracy to traffic in 500 grams or more of cocaine, 28 grams or more of cocaine base, and an unspecified amount of heroin. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. The government urges us to identify procedural error and to vacate Moore's sentence as unreasonable. We apply a deferential abuse-of-discretion standard to reasonableness challenges to sentences, see United States v. Young, 811 F.3d 592, 598 (2d Cir. 2016), which “incorporates de novo review of questions of law” and “clear-error review of questions of fact,” United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to vacate and remand.

The district court here concluded that the applicable 60-month mandatory minimum required a Guidelines calculation for Moore that presumed a total offense level of 22 and a criminal history category of III, thereby yielding a sentencing range of 51 to 63 months. The district court and appears to have accepted the government's assessment as evidenced by its repeated reference to as the limit of its authority. See J.A. 75 . Despite this acknowledgment the district court continued as follows:

That having been said, for the reasons that are articulated by [defense counsel] here and in his sentencing submissions, I impose an illegal sentence 1

Moore argues that the district court did not, in fact, impose an illegal sentence because its statements manifest We do not think the district court's statements support that conclusion. Nevertheless, we cannot completely dismiss the possibility of such adoptions. Thus, whether there was actual error, or simply ambiguity, we must vacate Moore's sentence and remand for resentencing.

Accordingly, we VACATE the judgment of the district court, and REMAND for further proceedings consistent with this order.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, Clerk of Court

FOOTNOTES

1.