14‐2706‐cr United States v. Aldeen

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2014

(Submitted: June 22, 2015 Decided: July 6, 2015)

Docket No. 14‐2706‐cr

UNITED STATES OF AMERICA,

Appellee,

v.

AHMED ALDEEN,

Defendant‐Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

Before: CABRANES, POOLER, and CHIN, Circuit Judges.

Appeal from a July 28, 2014 judgment of the United States District

Court for the Eastern District of New York (Townes, J.), sentencing defendant‐

appellant Ahmed Aldeen to eighteen monthsʹ imprisonment and three yearsʹ supervised release for a violation of the conditions of his supervised release. On

appeal, Aldeen argues that his above‐Guidelines sentence was procedurally and

substantively unreasonable. Because we find that the district court did not

comply with its procedural obligations to provide an adequate explanation of

Aldeenʹs sentence, we vacate and remand for resentencing and, to the extent

necessary, further fact‐finding and explanation of the sentence imposed.

REMANDED.

____________________________

Karen L. Koniuszy and Susan Corkery, Assistant United States Attorneys, for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY, for Defendant‐Appellant. ____________________________

CHIN, Circuit Judge:

Defendant‐appellant Ahmed Aldeen appeals from a July 28, 2014

judgment of the United States District Court for the Eastern District of New York

(Townes, J.), convicting him, following a guilty plea, of violating for the second

time the conditions of his supervised release by associating with a convicted

‐ 2 ‐

felon. As he admitted at his plea allocution, Aldeen spoke to a member of his sex

offender treatment group in the subway, after one of their sessions. The district

court revoked Aldeenʹs supervision and sentenced him to eighteen monthsʹ

imprisonment to be followed by an additional three years of supervised release.

Aldeen now challenges his above‐Guidelines sentence on both

procedural and substantive grounds. For the reasons set forth below, we remand

for further proceedings consistent with this opinion.

BACKGROUND

In August 2008, Aldeen was convicted, following a guilty plea, of

one count of possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5) and (b)(2). In his plea allocution, Aldeen admitted that in the

course of downloading adult pornography, he came into possession of two

videos of child pornography, which he kept and viewed even after discovering

they contained child pornography. The district court sentenced him to fifty‐one

monthsʹ imprisonment and three yearsʹ supervised release. The judgment

contained the standard conditions of supervision, see U.S.S.G. § 5D1.3(c), as well

as five special conditions, see id. § 5D1.3(d), including a ban on using a computer

‐ 3 ‐

or similar electronic device to access pornography ʺof any kind,ʺ and notifying

the Probation Department of any computer to which he had access.

After being released from prison, Aldeen began serving his initial

term of supervised release in February 2010. On September 28, 2011, the

Probation Department charged him with violating several of his conditions of

supervised release, including by failing to notify the Probation Department that

he had certain access to the internet. He eventually pled guilty to failing to

report to his Probation Officer. On August 22, 2012, the district court sentenced

him to ten monthsʹ imprisonment, the top of the Guidelines range, as well as

three additional yearsʹ supervised release. The judgment, however, was not

entered until January 28, 2013.

For this second term of supervised release, the district court

imposed the standard conditions of supervision and three special conditions.

Relevant to this appeal are the following:

[Standard Condition] 9) [T]he defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer . . . .

[Special Condition] 1) The defendant shall participate in a mental health treatment program, which may include

‐ 4 ‐

participation in a treatment program for sexual disorders . . . .

[Special Condition] 2) The defendant is not to use a computer, Internet capable device, or similar electronic device to access pornography of any kind. . . . The defendant shall also cooperate with the United States Probation Departmentʹs Computer and Internet Monitoring program. Cooperation shall include . . . identifying computer systems, Internet capable devices, and/or similar electronic devices the defendant has access to . . . . The defendant may be limited to possessing only one personal Internet capable device, to facilitate our departmentʹs ability to effectively monitor his Internet related activities.1

App. at 47‐48.

In 2014, one year into this second term of supervised release, Aldeen

was again charged with violating the conditions of supervision. According to

the Probation Department, Aldeen allegedly spoke with another member of his

treatment group, also a convicted felon, on the subway following a group

treatment session, in violation of Standard Condition 9. Probation stated that it

had ʺreceived informationʺ that Aldeen had asked his fellow group member for

1 Aldeen appealed the district courtʹs judgment with respect to the prohibition against viewing pornography of any kind and argued that he should be permitted to view adult pornography. On motion of the government, this Court vacated the judgment and remanded for the district court to reformulate this special condition. On remand, the district court determined that it was appropriate to continue to bar Aldeen from viewing all pornography.

‐ 5 ‐

ʺassistance with leaving the country undetected.ʺ Id. at 60. The Probation

Department also charged Aldeen with violating Special Condition 2, which

barred certain possession and uses of computers and other internet capable

devices, by, among other things, possessing an unreported cellphone that

contained pornographic images. The Probation Department additionally

charged Aldeen with committing a state crime by failing to disclose all internet

accounts and identifiers, including social networking accounts, in violation of his

level 1 registered sex offender obligations under the New York State Electronic

Security and Targeting of On‐line Predators Act.

Pursuant to an agreement with the government, Aldeen pled guilty

on April 17, 2014 to the first charge: associating with a person convicted of a

felony. He allocuted that he ʺspoke to one of [his] group at the subway,ʺ

knowing the person had been convicted of a felony, and knowing that he was not

supposed to have contact with other group members outside the treatment

program. Id. at 73.

The first charge was a grade ʺCʺ violation, as defined by U.S.S.G.

§ 7B1.1(a)(3). Because Aldeen was in Criminal History Category II when he was

originally sentenced, the Guidelines range for the violation was four to ten

‐ 6 ‐

monthsʹ imprisonment per U.S.S.G. § 7B1.4(a). Because his original offense of

possession of child pornography in violation of 18 U.S.C. § 2252A was a Class C

felony, see 18 U.S.C. §§ 2252A(b)(2), 3559(a)(3), the maximum statutory sentence

that could be imposed on revocation was twenty‐four months, see

(e)(3).

On April 23, 2014, the district court sentenced Aldeen to eighteen

monthsʹ imprisonment and an additional term of supervised release of three

years.2 The district court explained its sentence as follows:

Mr. Aldeen, you havenʹt even tried. You lie to everybody. I looked back through my notes. When I accepted your guilty plea, I did so and I said even though I know heʹs lied about parts of this, and you continue to do that. You used this unauthorized electronic device, this cell phone. You lied to your probation officer, and it was just totally unbelievable to

2Because Aldeen is scheduled to be released from prison on July 7, 2015, it is unlikely that his term of imprisonment will be shortened by the resentencing proceedings. See Fed. Bureau of Prisons, Inmate Locator, http://www.bop.gov/inmateloc/ (find by name: Ahmed Aldeen). Though resentencing will likely occur after his release, a criminal case ʺdoes not necessarily become moot when the convict finishes serving the sentenceʺ when there exists ʺʹsome concrete and continuing injury.ʹʺ United States v. Mercurris,

(2d Cir. 1999) (quoting Spencer v. Kemna,

(1998)). Aldeenʹs appeal is not moot ʺbecause a favorable appellate decision might prompt the district court to reduce [his] three‐year term of supervised release.ʺ United States v. Kleiner,

, 156 n.1 (2d Cir. 2014); see also Levine v. Apker,

(2d Cir. 2006) (finding ʺeffectual reliefʺ possible where ʺthe district court might, because of our ruling, modify the length of [defendantʹs] supervised releaseʺ).

‐ 7 ‐

me that you came to probation with that telephone, and you gave it to the officers downstairs and then picked it up as you were going out the door.

I mean, you just ignored the conditions that have been set for you. You admitted contact with a felon outside of the treatment facility. You lied in treatment. . . . [Y]ou took a polygraph examination,3 which indicated that you lied in your denial of contact with minors. I just ‐‐ and this is your second violation of supervised release. I just find that in order to deter you and hopefully cause you to really think about this and stop committing these offenses, you are ‐‐ the guidelines for the violation in charge one is ‐‐ those guidelines are four to ten months. That is far too short a term to afford deterrence in this case.

I do find that my sentence, which will hopefully get to you, must be above the advisory guideline range, just to try to [a]ffect you, in causing you to obey the conditions of supervised release.

App. at 80‐81. The district court concluded that Aldeenʹs ʺabidance of the

conditions of supervised release, . . . ha[s] been almost nil in this case.ʺ

. Judgment was entered on July 28, 2014.

This appeal followed.

3After defense counsel objected to the district courtʹs reliance on the polygraph examination, the district court agreed that the polygraph examination, which the government had administered on February 6, 2014, would not be used as a basis for the district courtʹs sentence. ‐ 8 ‐

DISCUSSION

We review a sentence for procedural and substantive reasonableness

under a ʺdeferential abuse‐of‐discretion standard.ʺ Gall v. United States,

(2007); see United States v. Broxmeyer,

(2d Cir. 2012) (ʺ[O]ur

standard is ʹreasonableness,ʹ ʹa particularly deferential form of abuse‐of‐

discretion review.ʹʺ) (quoting United States v. Cavera,

, 188 & n.5 (2d

Cir. 2008) (en banc)); see also United States v. Thavaraja,

(2d Cir.

2014). Aldeen challenges both the procedural and substantive reasonableness of

his sentence.

A. Procedural Reasonableness

1. Applicable Law

A sentence is procedurally unreasonable if the district court ʺfails 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.ʺ United States v. Chu,

(2d Cir. 2013)

(internal quotation marks omitted).

‐ 9 ‐

The court must ʺstate in open court the reasons for its imposition of

[a] particular sentence,ʺ

(c), and where the sentence is outside an

advisory Guidelines range, the court must also state ʺthe specific reasonʺ for the

sentence imposed, in open court as well as in writing ‐‐ ʺwith specificity in a

statement of reasons formʺ that is part of the judgment,

§ 3553(c)(2). See

generally United States v. Sindima,

(2d Cir. 2007). The sentencing

courtʹs ʺstatement of reasons must at least explain ‐‐ in enough detail to allow a

reviewing court, the defendant, his or her counsel, and members of the public to

understand ‐‐ why the considerations used as justifications for the sentence are

ʹsufficiently compelling [] or present to the degree necessary to support the

sentence imposed.ʹʺ

(alteration in original) (citation omitted) (quoting

United States v. Rattoballi,

(2d Cir. 2006), abrogated in part on other

grounds by Kimbrough v. United States,

(2007)).

When a district judge deviates from an advisory Guidelines range, it

must consider the ʺextent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.ʺ Cavera,

(quoting Gall,

)). Where there is a variance, on appellate review,

ʺwe may take the degree of variance into account and consider the extent of a

‐ 10 ‐

deviation from the Guidelines. . . . [A] major departure should be supported by a

more significant justification than a minor one.ʺ United States v. Stewart,

(2d Cir. 2009) (internal quotation marks omitted).

These concepts apply as well to sentences for violations of

supervised release. See United States v. McNeil,

(2d Cir. 2005)

(ʺThe standard of review on the appeal of a sentence for violation of supervised

release is now the same standard as for sentencing generally: whether the

sentence imposed is reasonable.ʺ). Nonetheless, there are some differences

between sentencing for the underlying crime and sentencing for a violation of

supervised release. Supervised release was established by the Sentencing

Reform Act of 1984, as amended,

et seq., and was designed ʺto

ease the defendantʹs transition into the community after the service of a long

prison term for a particularly serious offense, or to provide rehabilitation to a

defendant who has spent a fairly short period in prison for punishment or other

purposes but still needs supervision and training programs after release.ʺ S. Rep.

No. 98‐225, at 124 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3307; see also United

States v. Johnson,

(2000) (ʺCongress intended supervised release to

assist individuals in their transition to community life. Supervised release fulfills

‐ 11 ‐

rehabilitative ends, distinct from those served by incarceration.ʺ). Supervised

release is not, fundamentally, part of the punishment; rather, its focus is

rehabilitation.4

Though the imposition of an above‐Guidelines sentence triggers a

ʺhigher descriptive obligation,ʺ United States v. Cassesse,

(2d Cir.

2012), we simultaneously require less rigorous specificity where, as here, a court

sentences a defendant for violation of supervised release. See United States v.

Verkhoglyad,

, 132‐33 (2d Cir. 2008) (ʺ[A] courtʹs statement of its

reasons for going beyond non‐binding policy statements in imposing a sentence

after revoking a defendantʹs probationary term need not be as specific as has

been required when courts departed from guidelines that were, before Booker,

considered to be mandatory.ʺ (quoting United States v. Lewis,

(2d Cir. 2005))); see also United States v. Hargrove,

, 260‐61 (2d Cir.

The Sentencing Commission, in a 2010 report, drew a parallel 4

between the ʺprimary purpose of supervised release ‐‐ to facilitate the reintegration of federal prisoners back into the community,ʺ and ʺthe purpose of the Second Chance Act of 2007, . . . which was intended to ʹreduce recidivism, increase public safety, and help state and local governments better address the growing population of ex‐offenders returning to their communities.ʹʺ U.S. Sentencing Commʹn, Federal Offenders Sentenced to Supervised Release 2 n.11 (2010) (internal quotation marks omitted), http://www.ussc.gov/sites/default/files/pdf/research‐and‐publications/research‐ publications/2010/20100722_Supervised_Release.pdf (last visited July 6, 2015); see also United States v. Wessels,

(8th Cir. 2008) (Bright, J., concurring) (ʺCongress has directed a shift from policing those on parole to rehabilitating them.ʺ). ‐ 12 ‐

2007) (ʺWe have drawn a sharp divide between initial sentencing and the

revocation of supervised release with respect to the protections and safeguards

available to the individual.ʺ).

2. Application

Aldeen argues that the district court erred by failing to state in open

court, and in writing as part of its judgment, the reasons for imposing an above‐

Guidelines sentence with the specificity required by

(c). ʺSection

3553(c) requires no specific formulas or incantations; rather, the length and detail

required of a district courtʹs explanation varies according to the circumstances.ʺ

Cassesse,

. As a general matter, the requirements of § 3553(c) have

ʺlikely been satisfied when a courtʹs statements meet the goals ʹof (1) informing

the defendant of the reasons for his sentence, (2) permitting meaningful appellate

review, (3) enabling the public to learn why the defendant received a particular

sentence, and (4) guiding probation officers and prison officials in developing a

program to meet the defendantʹs needs.ʹʺ Id. at 192‐93 (quoting United States v.

Villafuerte,

(2d Cir. 2007)). Because Aldeen did not object at

sentencing to the district courtʹs failure to explain its reasoning, we review his

procedural challenge for plain error. Villafuerte,

.

‐ 13 ‐

We conclude that the district court committed plain error by failing

to adequately explain the reasoning for its sentence.

On the present record, we are not persuaded that the district court

provided a sufficiently compelling justification to support the degree of the

variance. See Cavera,

. The district court imposed a custodial

sentence of eighteen months, when the Guidelines only called for four to ten

months, as well as an additional three years of supervised release. Moreover,

Aldeen pled guilty only to associating with a convicted felon, and he admitted

only that he ʺspoke to one of [his] group at the subwayʺ following one of their

group treatment sessions. App. at 73. Without more, this conduct ‐‐ speaking to

a member of the treatment group in the subway after one of the sessions ‐‐ would

not seem to warrant such a substantially above‐Guidelines sentence. Indeed, it

would seem that the district courtʹs decision to impose an 18‐month sentence and

another three years of supervised release was driven by other considerations.

At the sentencing, the government argued that an above‐Guidelines

sentence was appropriate because Aldeen had ʺmultiple unreported devices.ʺ Id.

at 78. The Probation Officer argued that an above‐Guidelines sentence was

appropriate because Aldeen ʺnever once reported any sexual urges in any of

‐ 14 ‐

those [treatment] sessions, or any struggles with pornography,ʺ and that he

ʺseems to not be able to control himself, with not having unauthorized devices

and using them for sexual purposes.ʺ Id. at 79. The district court seemed to

accept the arguments, as it made clear that it was troubled by Aldeenʹs purported

use of an ʺunauthorized electronic device, [a] cell phone.ʺ Id. at 80.

Aldeen pled guilty, however, only to associating with a convicted

felon. He did not admit to possession of multiple unauthorized devices or using

any such devices for pornographic purposes, as the Probation Department

alleged, and, in fact, that charge (the second specification) was dismissed. The

judgment declared that ʺ[t]he defendant has not violated condition(s) 2‐3 and is

discharged as to such violation(s) [of his] condition[s].ʺ Id. at 87.

Ordinarily, conduct supporting acquitted or dismissed charges may

be taken into account in sentencing if the government establishes that conduct by

a preponderance of the evidence. See United States v. Watts,

, 155‐56

(2007); United States v. Kim,

(2d Cir. 1990) (permitting the use of

dismissed charges to support an above‐Guidelines sentence). Such conduct,

however, must still ʺrelate in some way to the offense of conviction,ʺ even if that

relation is not ʺtechnically coveredʺ by the Guidelinesʹ definition of relevant

‐ 15 ‐

conduct. Kim,

; see also U.S.S.G. § 1B1.3(a)(1) (defining relevant

conduct as ʺall acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant . . . that

occurred during the commission of the offense of conviction, in preparation for

that offense, or in the course of attempting to avoid detection or responsibility for

that offenseʺ). As we clarified in United States v. Wernick, more is required than

ʺthe bare fact of temporal overlap.ʺ

(2d Cir. 2012); see also

United States v. Ahders,

(2d Cir. 2010) (requiring more than

ʺmere temporal proximityʺ). For instance, ʺif a bank executive is engaged in

embezzling money from her company from February to September, and she

assaults a coworker at an office party in July,ʺ the assault could not be deemed

ʺrelevantʺ for the purposes of sentencing. Wernick,

.

Here, it appears that the district court relied on the allegations

regarding the use of multiple unauthorized devices, even though that charge was

dismissed. But there was no hearing, and, even assuming that Aldeen made use

of multiple unauthorized devices, the district court made no specific finding that

the use of multiple unauthorized devices was relevant to the conduct of

conviction: associating with a convicted felon by communicating with him in the

‐ 16 ‐

subway following a group treatment session. In the absence of further

explanation and specific findings, it is difficult for us to evaluate whether there

was a meaningful, and not merely temporal, connection.

Similarly, with respect to the subway conversation, the government

argued that Aldeen had ʺpreviously abscondedʺ and ʺhere he is approaching

somebody, asking for information about how to flee the country.ʺ App. at 78.

But in his plea allocution, Aldeen admitted only to speaking with a member of

the group in the subway after a session. He did not admit that he asked the

group member for assistance in fleeing the country, as the government alleged.

The Probation Department report asserted only that the Probation Officer had

ʺreceived informationʺ to this effect, without even identifying the source of the

information. Id. at 60. The district court did not make any findings on this issue,

and it is unclear, on this record, whether the communication between Aldeen

and the group member was innocuous or whether Aldeen was genuinely up to

no good.

Because there was a major deviation from the Guidelines range in

this case, the district court was obliged to provide a more substantial justification

for its sentence. On the current record, in the absence of specific findings and a

‐ 17 ‐

more detailed explanation, we are unable to conclude that there were

ʺsufficiently compellingʺ reasons to support the deviation. Cavera,

(quoting Gall,

). Moreover, we cannot discern from this record

whether the district courtʹs principal purpose in imposing eighteen monthsʹ

imprisonment and three additional years of supervised release was to punish

Aldeen or to further his rehabilitation.

The written statement of reasons fares no better. Section 3553(c)(2)

requires that the district court state ʺwith specificityʺ the ʺspecific reason for the

impositionʺ of an above‐Guidelines sentence on the written statement of reasons

form. The district court failed to do so. Instead, in its ʺStatement of Reasonsʺ in

the non‐public portion of the judgment, the district court checked off the box for

a sentence ʺabove the advisory policy statement range,ʺ but left blank Part IV(C),

which asked for an explanation of ʺthe facts justifying a sentence outside the

advisory policy statement.ʺ We have recognized that ʺʹthe better courseʹ in such

circumstances [is] ʹto remand so that noncompliance with subsection 3553(c)(2)

may be remedied.ʹʺ Verkhoglyad,

(quoting United States v. Jones,

(2d Cir. 2006)). At a minimum, the district court should have

‐ 18 ‐

completed Part IV(C) of the statement of reasons form to comport with its

statutory obligations.

We acknowledge that sentencings in revocation proceedings are

often conducted in a more informal manner than sentencings in the underlying

criminal cases. We do not suggest that the sentencing for violations of

supervised release must be accompanied by ʺ[t]he full panoply of procedural

safeguardsʺ that attends a sentencing on initial criminal charges. United States v.

Carlton,

(2d Cir. 2006). Nonetheless, even in the revocation

context, a district court must sufficiently explain its reasoning so that the parties,

the public, and a reviewing court can understand the justification for the

sentence, particularly when there is a material deviation.

Accordingly, we remand to the district court for further findings and

explanation. To the extent the district court relies on conduct that was the

subject of the dismissed charges or on misbehavior beyond the conduct of

conviction, the district court must make findings with respect to the factual bases

for its sentencing decision, including, inter alia, whether there was a meaningful

connection between the conduct of conviction and conduct falling beyond the

scope of the defendantʹs plea. On remand, if the district court adheres to its

‐ 19 ‐

decision to deviate above the Guidelines range, it shall also provide a written

explanation in the judgment to memorialize in writing the stated reasons for the

sentence.

B. Substantive Reasonableness

We turn now to the question of substantive reasonableness: whether

the sentence of eighteen monthsʹ imprisonment and three additional yearsʹ

supervised release ʺshock[s] the conscience,ʺ constitutes a ʺmanifest injustice,ʺ or

is otherwise substantively unreasonable. United States v. Rigas,

(2d Cir. 2009) (internal quotation marks omitted); see generally Chu,

, 748‐49. Our review for substantive unreasonableness is ʺparticularly

deferential.ʺ Broxmeyer,

(citing Gall,

). We will set

aside sentences as substantively unreasonable ʺonly in exceptional cases where

the trial courtʹs decision ʹcannot be located within the range of permissible

decisions,ʹʺ Cavera,

(quoting United States v. Rigas,

(2d Cir. 2007)), that is, when sentences ʺare so ʹshockingly high, shockingly

low, or otherwise unsupportable as a matter of lawʹ that allowing them to stand

would ʹdamage the administration of justice.ʹʺ Broxmeyer,

(quoting Rigas,

).

‐ 20 ‐

As this Court has observed, ʺthe measure of what is conscience‐

shocking is no calibrated yard stick.ʺ OʹConnor v. Pierson,

, 203 (2d

Cir. 2005) (quoting Cnty. of Sacramento v. Lewis,

(1998)). In the

instant case, on this record, even if Aldeenʹs sentence does not shock the

conscience, it at the very least stirs the conscience. As suggested above, a

sentence of eighteen monthsʹ imprisonment and three additional yearsʹ

supervised release for speaking to a fellow member of the treatment group in the

subway following a treatment session, without more, seems exceedingly harsh.

There may have been additional circumstances justifying such a material

deviation, but for the reasons discussed above, on this record we are unable to

discern them. Accordingly, remand for a fuller record will facilitate appellate

review of the question of substantive reasonableness as well. See United States v.

Ahuja,

(2d Cir. 1991) (ʺ[I]n cases where the impact of our

invalidation of a departure ground is unclear or the sentence imposed by the

district court strains the bounds of reasonableness, remand for resentencing may

well be warranted.ʺ).

‐ 21 ‐

CONCLUSION

For the foregoing reasons, we REMAND to the district court with

instructions that it vacate the sentence and resentence Aldeen in accordance with

the above. Because Aldeen has already served the majority of his above‐

Guidelines sentence, the mandate shall issue forthwith.

‐ 22 ‐