11‐3707‐cr United States v. Forrest

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand fourteen.

PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 11‐3707‐cr

MICHAEL FORREST, Defendant‐Appellant.

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FOR APPELLEE: Rajit S. Dosanjh and Tamara B. Thomson, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, New York, NY.

FOR DEFENDANT‐APPELLANT: Robert A. Culp, Law Office of Robert A. Culp, Garrison, NY.

Appeal from the United States District Court for the Northern District of

New York (Suddaby, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED IN PART and

the case is REMANDED for reconsideration of the sentence.

Defendant‐appellant Michael Forrest appeals from a judgment entered August

16, 2011, convicting him, following a plea of guilty, of one count of distribution of child

pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The district court sentenced

Forrest principally to 180 monthsʹ imprisonment and ordered him to pay $5,000 in

restitution. On appeal, Forrest argues that (1) the sentence was procedurally

unreasonable because the district court incorrectly applied a five‐level enhancement

under U.S.S.G. § 2G2.2(b)(3)(B); (2) the district court failed to adequately explain the

sentence; (3) the sentence was substantively unreasonable; (4) he received ineffective

assistance of counsel during sentencing proceedings; and (5) the restitution order was

erroneous. He also seeks vacatur of the district courtʹs decision, filed February 1, 2012,

denying his motion under

to vacate, set aside, or correct his sentence.

We assume the partiesʹ familiarity with the facts, procedural history, and issues on

appeal.

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The government joins Forrest in asking that we remand for resentencing because

it agrees with Forrest that the district court erred in applying a five‐level sentence

enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which is triggered where the defendantʹs

distribution of child pornography involves ʺ[d]istribution for the receipt, or expectation

of receipt, of a thing of value, but not for pecuniary gain.ʺ U.S.S.G § 2G2.2(b)(3)(B).

Without deciding the issue, we remand to the district court to consider the arguments of

both Forrest and the government in favor of resentencing.

As the case is to be remanded for reconsideration of the sentence, we decline to

reach Forrestʹs arguments challenging the adequacy of the district courtʹs explanation of

the sentence, the substantive reasonableness of the sentence, and the effectiveness of his

counsel during sentencing.1 See United States v. Cox,

, 132‐33 & n.2 (2d Cir.

2001) (declining to decide defendantʹs claim that counsel was ineffective during

sentencing where case was being remanded for resentencing, and noting that

resentencing may moot ineffective assistance claim). Similarly, we need not reach

Forrestʹs challenge to the district courtʹs decision denying his § 2255 motion, as that

challenge may be rendered moot by our decision to remand for reconsideration of the

sentence.

1 We are confident that, if the district court resentences Forrest, it will meet its obligation to explain its sentence as required by

(c) to ʺensure that [the] district court[] actually consider[ed] the statutory factors and reach[ed] reasoned decisions,ʺ ʺpromote the perception of fair sentencing,ʺ and permit ʺmeaningful appellate review.ʺ United States v. Cavera,

(2d Cir. 2008). ‐ 3 ‐

Though we do not reach the merits of Forrestʹs other claims, we hold that he has

waived his challenge to the restitution order. We have held that ʺ[i]f [a] party

consciously refrains from objecting as a tactical matter, then that action constitutes a

true ʹwaiver,ʹ which will negate even plain error review.ʺ United States v. Yu‐Leung,

(2d Cir. 1995); see also United States v. Quinones,

(2d Cir.

2007) (holding that tactical decision to agree to life imprisonment as an alternative to

death penalty waives claim of plain error); United States v. Wellington,

(2d Cir. 2005) (holding that deliberate, tactical decision to forego certain procedures at

trial waives challenge of the absence of those procedures). Here, Forrest made a tactical

decision to accept responsibility for paying restitution to a victim of his crime as part of

a conscious attempt to seek leniency at sentencing. See App. at 83 (Forrestʹs counsel

arguing at sentencing that Forrest has ʺpa[id] an agreed amount of restitution, for a

particular [victim] in this matter, and he recognizes what heʹs doneʺ). He cannot now

argue on appeal that the restitution order was in error.

For the foregoing reasons, we AFFIRM the district courtʹs restitution order and

REMAND to the district court to consider whether to resentence in light of the

arguments advanced by both Forrest and the government. If the district court imposes

a new sentence and either party wishes to appeal, that party should file a notice of

appeal and proceed in the customary fashion. If the district court declines to resentence

and Forrest wishes to restore our consideration of this appeal, he should so advise the

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Clerk within fourteen days after the district courtʹs filing of an order denying his

application for resentencing. This panel will then resume consideration of the appeal.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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