16‐1111‐cr United States v. Latchman Singh

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2016

(Argued: February 23, 2017 Decided: December 12, 2017) Docket No. 16‐1111‐cr

UNITED STATES OF AMERICA, Appellee,

‐ against ‐

LATCHMAN SINGH, Defendant‐Appellant.

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

Before: KEARSE, HALL, and CHIN, Circuit Judges.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Forrest, J.) convicting defendant‐appellant, upon

his guilty plea, of illegally reentering the United States after having been

removed following a conviction for an aggravated felony. Defendant‐appellant

contends that his sentence of 60 monthsʹ imprisonment ‐‐ which was nearly three times the top of the applicable Guidelines range ‐‐ was both procedurally and

substantively unreasonable.

VACATED AND REMANDED.

DINA MCLEOD , Assistant United States Attorney (Micah W.J. Smith, Assistant United States Attorney, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, New York, for Appellee.

COLLEN P. CASSIDY, Federal Defenders of New York, Inc., New York, New York, for Defendant‐ Appellant.

CHIN, Circuit Judge:

In this case, defendant‐appellant Latchman Singh pleaded guilty to

one count of illegally reentering the United States after having been removed

following a conviction for an aggravated felony. His Guidelines range was 15 to

21 monthsʹ imprisonment, and both the government and the Probation Office

recommended a within‐Guidelines sentence. The district court, however,

sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the

top of the Guidelines range.

‐2‐ Singh appeals, contending that the sentence was both procedurally

and substantively unreasonable. For the reasons set forth below, we vacate the

sentence and remand for further proceedings. Singhʹs request that we order

reassignment of the case to a different judge is denied.

BACKGROUND

A. The Facts

The facts are largely undisputed and are summarized as follows:

1. Singhʹs Personal History

Singh was born in Guyana on September 9, 1971, and has never been

a citizen of the United States. He was one of five children, and he and his family

moved to the United States when he was still a child. After residing with Singhʹs

uncle in Florida for a year, the family moved to New York City. Although his

parents separated, they both still live in the Bronx. Three of his siblings also live

in the Bronx, and one lives in upstate New York.

In 1997, Singh married a woman who was a permanent resident of

the United States. Together they had a daughter, now approximately seventeen

years old. Before his arrest, he lived with his wife and their daughter in the

Bronx and had a positive relationship with both.

‐3‐ 2. The Offense Conduct

Singh was convicted in the Southern District of New York of larceny

and postal theft on February 22, 1995. He was thereafter sentenced to twelve

monthsʹ imprisonment. The conviction qualified as an aggravated felony within

the meaning of

(b). On December 21, 2004, an immigration judge

ordered Singh removed from the United States, and he was eventually removed

from the country on April 9, 2010.

At some point after his removal, Singh illegally reentered the United

States, and he was arrested by the New York City Police Department (the

ʺNYPDʺ) in the Bronx on February 9, 2012. On March 21, 2012, he was again

ordered removed from the country based on the reinstatement of his earlier

removal order. On May 16, 2012, he was once again removed from the United

States.

At some point thereafter, Singh illegally reentered the United States

again, as on June 26, 2014, he was arrested, once again, by the NYPD in the

Bronx. This was his second illegal reentry into this country. Federal agents took

him into custody on July 21, 2015.

‐4‐ 3. Singhʹs Criminal History

In addition to the 1995 conviction for larceny and postal theft, Singh

had been convicted of seven other crimes when he appeared for sentencing in

this case:

● a conviction in 1993 for possession of stolen property (stolen

mail) for which he was sentenced to a $100 fine;

● two convictions in 1994 for receiving stolen property for

which he was sentenced to concurrent terms of imprisonment of 3 months and

home confinement of 3 months;

● a conviction in 2002 for forgery for which he received a

conditional discharge and was sentenced to a $500 fine; 1

● a conviction in 2002 for petit larceny for which he received a

conditional discharge;

● a conviction in 2012 for shoplifting for which he was

sentenced to time served (72 days) and 10 hours of community service; and

1 See

(1)(a) (2017) (ʺ[T]he court may impose a sentence of conditional discharge for an offense if the court, having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate.ʺ). ‐5‐ ● a conviction in 2014 for petit larceny for which he received a

conditional discharge.

B. The Proceedings Below

In an indictment filed August 17, 2015, Singh was charged with one

count of illegal reentry into the United States after having been removed

following a conviction for an aggravated felony, in violation of

(a)

and (b)(2). On December 21, 2015, Singh appeared before Magistrate Judge

Henry B. Pitman and pleaded guilty to the sole count of the Indictment, without

a plea agreement. Judge Pitman recommended that the district court accept the

plea. The district court accepted the plea by order filed January 12, 2016.

On March 18, 2016, the Probation Office submitted a Presentence

Investigation Report (the ʺPSRʺ) in anticipation of sentencing. The Probation

Office computed the Total Offense Level as 13, based on a base level for illegal

reentry of 8; an 8‐level increase because Singh was deported following a

conviction for an aggravated felony; and a 3‐level reduction for acceptance of

responsibility. The PSR noted that Singh had ʺclearly demonstrated acceptance

of responsibility for the offenseʺ and had ʺassisted authorities in the investigation

or prosecution of [his] own misconduct by timely notifying authorities of the

intention to enter a plea of guilty.ʺ PSR, ¶¶ 36, 37. The Probation Office noted

‐6‐ that Singh had eight prior convictions, as discussed above, but concluded that

the convictions resulted in only three criminal history points, placing Singh in

Criminal History Category II. Six of the eight convictions carried zero criminal

history points.2 See U.S. Sentencing Guidelines Manual § 4A1.2(e)(1), (2), (3).

The PSR calculated a Guidelines range of imprisonment of 15 to 21 months and

recommended a sentence of 21 months.

Singh submitted a sentencing memorandum, with attachments,

including letters from his family, and requested a below‐Guidelines sentence of

time served (he had served almost nine months). The government submitted a

sentencing letter requesting a sentence ʺwithin the applicable Guidelines range of

15 to 21 monthsʹ imprisonment,ʺ stating that ʺsuch a sentence would be sufficient

2 The Probation Office did not explain why the six convictions carried zero criminal history points beyond citing § 4A1.2(e)(3) of the Guidelines. That section provides that ʺ[a]ny prior sentence not within the time periods specified above is not counted.ʺ U.S. Sentencing Guidelines Manual § 4A1.2(e)(3). Subsections (2) and (3) provide that certain prior sentences are counted: (1) prior sentences of imprisonment exceeding one year and one month imposed within fifteen years of the ʺcommencement of the instant offenseʺ; (2) prior sentences of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated within the fifteen‐year period; and (3) prior sentences imposed within ten years of the ʺcommencement of the instant offense.ʺ Id. § 4A1.2(e)(1), (2). Here, it is not clear when Singh commenced the instant offense as the record does not establish when he reentered after his May 16, 2012 removal, but he was found here on June 26, 2014. If that is considered the commencement date, none of the six convictions involved sentences imposed within the prior ten years and none resulted in a sentence of imprisonment exceeding one year and one month. Four of the sentences were imposed more than fifteen years earlier ‐‐ indeed, more than twenty years earlier. ‐7‐ but not greater than necessary to serve the legitimate purposes of sentencing.ʺ

App. at 79, 82. The government agreed with the Probation Officeʹs calculation of

Singhʹs recommended sentence, which included a three‐level reduction ʺbased

on the defendantʹs acceptance of responsibility.ʺ Id. at 80.

By letter dated February 16, 2016, Singh wrote directly to the district

court. The letter stated in part as follows:

Your Honor Iʹm So Sorry For my Action or wrongdoing. Iʹve Realise my Action were wrong. Iʹve causes the courts and the citizen of United States, Also my Family allot of pain and trouble. Your Honor Iʹve Hurts my Daughter, wife, mother, Father and Family Feeling so much.

Your Honor at the time of all my conviction in the past, Iʹve allot of Bad Friend and Company who I follow and do bad thing. Your Honor I wasnʹt thinking what I was getting into or doing. I Follow my Friend and take thing playful and Funny. Your Honor I was Foolise, selfish and dumb.

Your Honor I Came Back to United States Because I was Fear for my life. I was in Danger in Guyana which I was attack, Beaten up, Robbed and threatened to Be kill for my money and other thing.

Your Honor Iʹve No family in Guyana. My wife, child, Mother, Father and all my sister and Brother are Residing in the United States. Your Honor I was all alone in Guyana and Scare.

. . .

Your Honor I only Came Back Because I was in Danger and Fear For my life and to Be with my Family. Iʹm sorry for Breaking

‐8‐ the law. Iʹm Begging for another chance. Please my only Daughter is very worry about whatʹs going to happen to her Father.

Your Honor these long Jail months have taught me hard lesson, not to do anything wrong again. Your Honor From my heart I promise I will not Break the Law again For the sake of my daughter and Family.

App. at 76‐78.

Sentencing proceeded on April 8, 2016. That morning, the district

court issued an order notifying the parties that it was ʺseriously considering an

upwards variance in connection with the sentencing of Mr. Singh.ʺ App. at 83.

At the sentencing, the district court adopted the factual findings set

forth in the PSR. The district court then explained that it was not ʺinclinedʺ to

allow Singh a deduction for acceptance of responsibility because of certain

statements Singh made in his letter: first, Singhʹs statement that he reentered

because he feared for his life ʺappear[ed] to indicate his attempt to avoid

responsibility for the crime,ʺ and, second, his statements that ʺhe had been under

the influence of bad friendsʺ and had ʺdone things thinking they were playful

and funnyʺ and that he had been ʺfoolish and selfishʺ demonstrated that Singh

ʺcertainly does attempt to avoid responsibility for the aggravated felony.ʺ App.

at 90‐92.

‐9‐ As to Singhʹs statements that he had been threatened in Guyana,

defense counsel represented that ʺ[f]rom day one Mr. Singh has told me and my

office that he was attacked, robbed, and in danger down in Guyana and that was

a portion of his motivation for returning.ʺ App. at 99. Counsel represented that

ʺMr. Singh has never said otherwise. In fact, he has been explicit and clear about

the threats that he was under in Guyana. He was robbed, beaten with a gun and

put in [a] hospital in Guyana.ʺ Id. Counsel further reported that Guyanese of

Indian descent who returned to Guyana were often targeted for robberies,

especially after having lived in the United States. Counsel explained that he did

not ʺfocusʺ on these issues in his sentencing submission because the information

was uncorroborated. The district court responded to defense counsel by stating

ʺI accept your statement.ʺ Id. at 100.

The district court then advised the parties that it had determined to

give Singh the acceptance of responsibility deduction, noting ʺI donʹt want to

create an appeal point relating to whether or not [USSG §] 1B1.3, relevant

conduct, will or will not, in an illegal reentry situation, include certain things

related to an aggravated felony.ʺ Id. The district judge stated, however, that ʺI

will consider the various issues that I have with acceptance of responsibility

under [18 U.S.C. §] 3553(a), in light of all the information.ʺ App. at 100. The

‐10‐ district court concluded, as the PSR had recommended and the parties agreed,

that the Guidelines calculation was a Total Offense Level of 13 and a Criminal

History Category of II for a range of 15 to 21 monthsʹ imprisonment.

The district court and the parties then turned to a discussion of the

§ 3553(a) sentencing factors. In the end, the district court imposed a sentence of

60 monthsʹ imprisonment. The court explained as follows:

I do not see this as a heartland case for illegal reentry. I see this as a case where we have a defendant who has repeatedly harmed the public. While he has not engaged in drug offenses or violent offenses, the kinds of crimes he is engaged in relate to a variety of conduct which is harmful, and it is harmful to members of the public. The public shouldnʹt be exposed to it. Itʹs repeated and itʹs repeated so often and so brazenly that I do not have any hope. I have no expectation, frankly, that it could stop. I donʹt know what the issue may be thatʹs causing it. . . .

I donʹt believe he can live here honestly. I donʹt believe he has any right to live in this country at all. I believe that he has no right to be present on U.S. soil. I think he should be deported back to Guyana and he can make his life in Guyana as he deems appropriate. It could have been different, but itʹs not.

I think reentry for him in terms of personal deterrence, it plays a very, very important role in his sentence. I think reentry is highly likely. Indeed I would say that I think reentry is almost certain, an attempt at reentry is almost certain for this defendant. He has done it two times before. There is nothing at all in the record at all to indicate he wouldnʹt do it again. . . .

I do take into consideration the fact that this defendant has spent the majority of his life in the United States. It is also the fact

‐11‐ that I take into consideration that he has spent the majority of his adult life back and forth. He has committed a lot of crimes and he has had a lot of opportunities to lead a different life. So all of these factors I take into consideration. . . .

. . . I put out the notice this morning that the court was considering an upward variance, a variance because I do not believe, as Iʹve said before, that the guidelines appropriately take into consideration the totality of the circumstances that are at issue here with the defendantʹs background, with the prior leniency thatʹs been shown to the defendant, with his multiple reentries. So itʹs not just a single reentry after a single aggravated felony. Itʹs actually more than that. And I do believe that the consistent history of his crimes indicates that there is a very high likelihood of recidivism. I think itʹs an unusually high likelihood of recidivism.

Since Iʹm convinced that he will reenter and commit more crimes, I do believe there is some need for and a strong need for incapacitation for some period of time. In other words, I do not believe that deportation right now actually serves the public interest. I believe that the public interest in this country is best served by a period of incapacitation, which will prevent reentry. . . .

I believe that time served, something that would then send this defendant on now to the immigration authorities and into immigration custody, would be the wrong message. It would be the wrong message and I think it would be most likely to inspire the defendant and incent the defendant to return. I also think that21 months, which is the guidelines range, is far too little to achieve the goals that I am considering necessary under all of the factors under 3553(a).

Based upon the particular facts and circumstances relating to this defendant, having thought long and hard about all of the facts and circumstances of this defendant, I do believe that a sentence of 60 months is appropriate. A period of 60 months is a sufficient but not greater than necessary sentence. It is an upwards variance.

‐12‐ However, it does provide the incapacitation which this court believes is absolutely necessary to prevent the nearly immediate reentry which I believe will occur.

App. at 109, 112‐17.

The district court entered judgment on April 11, 2016. On April 20,

2016, Singhʹs counsel wrote a letter to the district court requesting a

recommendation that the Bureau of Prisons designate Singh to the Moshannon

Valley Correctional Center in Pennsylvania. By memorandum endorsement

dated the same day, the district court denied the request, writing that

ʺ[a]pplications for designation should generally be made at the time of

sentencing,ʺ and stating: ʺThe Court will not now, for this defendant, make such

a recommendation.ʺ App. at 123.

This appeal followed.

DISCUSSION

A. Applicable Law

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) (ʺour

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

discretion reviewʹʺ) (quoting United States v. Cavera,

, 188 & n.5 (2d

‐13‐ Cir. 2008) (en banc)); accord United States v. Thavaraja,

(2d Cir.

2014).

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). We will set aside a sentence as substantively

unreasonable only in ʺexceptional 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)). We will identify

ʺas substantively unreasonable only those sentences that are 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 United States v. Rigas,

(2d Cir. 2009)).

Our review for substantive unreasonableness is ʺparticularly

deferential.ʺ Broxmeyer,

(citing Gall,

). The Supreme

Court has made clear that ʺresponsibility for sentencing is placed largely in the

precincts of the district courts.ʺ Cavera,

. Hence, ʺour role in

‐14‐ sentencing appeals is to ʹpatrol the boundaries of reasonableness,ʹʺ Rigas,

(quoting Cavera,

), with due respect for the sentencing

courtʹs ʺvery wide latitude to decide the proper degree of punishment for an

individual offender and a particular crime,ʺ Cavera,

. Though the

standard for finding substantive unreasonableness is high, this Court has not

shied away from doing so when appropriate. See United States v. Dorvee,

(2d Cir. 2010) (ʺ[I]t would be manifestly unjust to let Dorveeʹs sentence

stand.ʺ); United States v. Jenkins,

(2d Cir. 2017) (ʺWe conclude

that the factors upon which the district court relied . . . cannot bear the weight of

the sentence the district court imposed.ʺ).

District courts are to use the Guidelines as a ʺstarting point,ʺ and

then make an independent sentencing determination, taking into account the

ʺnature and circumstances of the offense and the history and characteristics of

the defendant,ʺ and all the statutory factors. Cavera,

(quoting

(a)). Sentencing courts are not to ʺpresume that the Guidelines

range is reasonable,ʺ and instead they ʺmust make an individualized assessment

based on the facts presented.ʺ Gall,

.

Where there is a variance from the Guidelines range, on appellate

review, ʺʹwe may take the degree of variance into account and consider the

‐15‐ extent of a deviation from the Guidelinesʹ. . . . ʹ[A] major departure should be

supported by a more significant justification than a minor one.ʹʺ United States v.

Stewart,

(2d Cir. 2009) (quoting Gall,

).

B. Application

Singh challenges his sentence on both procedural and substantive

grounds. While we usually address the procedural arguments first in sentencing

appeals, here we begin with the substantive challenge because it informs our

analysis of the procedural arguments.

1. Substantive Unreasonableness

As the Supreme Court has observed in a different context, ʺthe

measure of what is conscience shocking is no calibrated yard stick.ʺ Cty. of

Sacramento v. Lewis,

(1998); accord OʹConnor v. Pierson,

, 203 (2d Cir. 2005) (ʺThe shocks‐the‐conscience test is necessarily imprecise.ʺ).

In this case, on this record, even if Singhʹs sentence does not shock the conscience,

ʺit at the very least stirs the conscience.ʺ United States v. Aldeen,

(2d Cir. 2015).

The district court imposed a sentence of 60 monthsʹ imprisonment

for an illegal reentry case, where the Guidelines range was only 15 to 21 months

and the government and the Probation Office had both recommended a within‐

‐16‐ Guidelines sentence. The district court imposed a sentence almost three times

the high end of the Guidelines range. Moreover, as shown by Sentencing

Commission statistics, the sentence of 60 months drastically exceeded

nationwide norms. In fiscal year 2013, the average sentence for illegal reentry

offenders was 18 months and the median sentence was 12 months. Sentencing

Commʹn, Illegal Reentry Offenses, at 9 (April 2015) (ʺCommʹn Reportʺ), available

at https://www.ussc.gov/sites/default/files/pdf/research‐and‐publications/

research‐projects‐and‐surveys/immigration/2015_Illegal‐Reentry‐Report.pdf.3

An above‐Guidelines sentence was imposed in only 1.3% of all illegal reentry

cases, id. at 10, and in cases (like the instant one) with an 8‐level enhancement for

an aggravated felony, an above‐Guidelines sentence was imposed in only 1.2% of

the cases, id. at 11 Table 2.

The district court concluded that a substantial variance was

warranted here because of Singhʹs ʺconsistent historyʺ of criminal conduct and

the ʺvery high likelihood of recidivism.ʺ App. at 115.4 While Singh indeed had

3 The Commission Report shows that the average sentence for illegal reentry cases for 2013 was not significantly different going back to 2009. Id. at 10 Fig. 4. 4 ʺThe particular weight to be afforded aggravating and mitigating factors ʹis a matter firmly committed to the discretion of the sentencing judge.ʹʺ Broxmeyer,

(quoting United States v. Fernandez,

(2d Cir. 2006)). In reviewing for substantive reasonableness, ʺwe do not consider what weight we would ourselves have given a particular factor,ʺ but instead we determine whether a factor relied on by a ‐17‐ eight prior convictions, as the district court acknowledged, however, none

involved violence or narcotics trafficking. See

. Six of the eight

convictions were more than ten years old. Four were more than twenty years

old, counting back from the date of sentencing, and Singh was only 21 and 22

years old when he committed those offenses.5 The four more recent convictions

occurred over the course of fifteen years, and three were so minor they resulted

in conditional discharges, that is, the sentencing court did not believe the crime

warranted imprisonment or even probation. Moreover, the Sentencing

Commission statistics show that 57.2% of illegal reentry offenders were in

Criminal History Category (ʺCHCʺ) III or higher. Commʹn Report at 9. Singh

was only in CHC II, and yet he was sentenced to more than three times the

national average for all illegal reentry offenders, 57.2% of whom were in a higher

CHC.

sentencing court ʺcan bear the weight assigned it under the totality of circumstances in the case.ʺ Cavera,

. 5 As the Supreme Court has observed, ʺOur cases recognize that ʹyouth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.ʹ . . . A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill‐considered actions and decisions.ʺ Johnson v. Texas,

(1993) (quoting Eddings v. Oklahoma,

(1982)); see also Graham v. Florida,

(2010) (holding that life without parole for juveniles is unconstitutional, in part because of ʺa juvenile nonhomicide offenderʹs capacity for change and limited moral culpabilityʺ). ‐18‐ As we note above, a major variance must be supported by ʺa more

significant justification.ʺ United States v. Stewart,

(quoting Gall,

). In the context of the Sentencing Commissionʹs statistics for

illegal reentry cases and all the circumstances here, we are not persuaded, on this

record, that the justification offered by the district court was sufficient to support

the magnitude of the variance. See Cavera,

. Our concern is

heightened by the procedural issues we turn to now.

2. Procedural Reasonableness

We have two areas of concern with respect to procedural

reasonableness. First, there may have been factual errors in the district courtʹs

discussion of the record. Second, the district courtʹs reluctance to credit Singhʹs

acceptance of responsibility (although it did so in the end) suggests that the

district court may have conflated Singhʹs statements in mitigation with a failure

to accept responsibility.

a. Factual Issues

As to the apparent factual errors, the district court concluded that

ʺreentry is almost certain, an attempt at reentry is almost certain for this

defendant. He has done it two times before.ʺ App. at 113 (emphasis added). The

district court also referred to ʺthe multiple[] numbers of times that he has been

‐19‐ arrested and spent time in jail and been deported.ʺ Id. at 114. These comments

suggest that the district court believed that Singh had been guilty of two earlier

illegal reentries and that it was sentencing him for a third illegal reentry. Indeed,

the PSR had erroneously stated that ʺthe instant offense is the defendantʹs third

arrest for illegally reentering the United States,ʺ PSR at 23, a statement the parties

acknowledge was wrong. In fact, Singh had been arrested for illegal reentry only

twice ‐‐ including for the instant offense. While the government argues on

appeal that the district court might have been including the current offense in its

comments and that the district court understood there were two and not three

illegal reentries all together, the district courtʹs words suggest otherwise.

The district court also concluded that Singh ʺhas spent the majority

of his adult life back and forth,ʺ that is, between Guyana and the United States.

App. at 115. In fact, however, Singh, who was 44 years old at the time of

sentencing, was not deported for the first time until 2010, when he was nearly 39.

It was simply not correct that he had spent ʺthe majority of his adult life back and

forth.ʺ To the contrary, he had spent the majority of his adult life living in the

United States. The district courtʹs conclusion that Singh was ʺalmost certainʺ to

illegally reenter again surely was influenced by these apparently erroneous

views of the facts.

‐20‐ Finally, the district court determined as a factual matter that this was

ʺa defendant who has repeatedly harmed the public. . . . [T]he kinds of crimes he

is engaged in relate to a variety of conduct which is harmful, and it is harmful to

members of the public. The public shouldnʹt be exposed to it. Itʹs repeated and

itʹs repeated so often and so brazenly that I do not have any hope.ʺ App. at 109.

The district court further commented: ʺI am indeed almost certain that this

defendant will try to reenter. I also believe that he will then be extremely likely

to commit additional crimes, which exposes the American public to crimes from

this individual.ʺ Id. at 114.

We are not persuaded that the district courtʹs abject view of Singhʹs

record and prospects for reform is supported by the record. As discussed above,

although Singh had eight prior convictions, the district court may have

overstated their seriousness. Four of the convictions were more than twenty

years old, involving crimes committed by Singh when he was only 21 or 22 years

old, and two others were some more than ten years old. None involved guns or

violence or narcotics. Three of the more recent convictions resulted only in

conditional discharges, without any term of prison or probation. A sentencing

judge has the formidable task of trying, to some extent, to predict the future, as

she must determine whether the defendant has really learned his lesson, whether

‐21‐ he is likely to break the law again, and whether he will be able to turn his life

around for the better. While the trial judgeʹs decisions on these difficult matters

are entitled to great deference, we do not believe the record here supports the

trial courtʹs apparent conclusion that Singh was essentially beyond redemption.

See Yuen Jung v. Barber,

(9th Cir. 1950) (ʺAll modern legislation

dealing with crime and punishment proceeds upon the theory that aside from

capital cases, no man is beyond redemption.ʺ).

A sentencing determination based on clearly erroneous factual

findings is procedurally unreasonable. See United States v. Chu,

;

United States v. Cossey,

(2d Cir. 2011) (per curiam). A variance

such as that imposed here ‐‐ some three times the high end of the range ‐‐ must

be based on an accurate reading of the record. A remand for clarification of the

facts is therefore appropriate. See United States v. Juwa,

, 699‐700 (2d

Cir. 2007) (remanding for resentencing where there was uncertainty as to

whether district court had assumed defendant had engaged in ʺmultiple instances

of sexual abuse, as opposed to [a] single instanceʺ).

b. The Question of Acceptance of Responsibility

At the outset of the sentencing, the district court explained that it

was not ʺinclined to allow the acceptance of responsibility deductions.ʺ App. at

‐22‐ 90. After hearing from counsel, the district court advised that it did not ʺwant to

create an appeal pointʺ and granted Singh the acceptance points, but noted that it

would consider the acceptance of responsibility issues ʺunder 3553(a).ʺ App. at

100. Hence, despite giving Singh credit for acceptance of responsibility, the

district court remained concerned that Singh had not fully accepted

responsibility. The concern emanated from statements in Singhʹs letter to the

court that he had been acting foolishly and selfishly, under the influence of

friends, when he committed his earlier crimes and that he had returned to the

United States in part for fear of his life in Guyana.

It appears that the district concluded that Singhʹs comments in his

letter were a basis for imposing a higher sentence and that the district court may

have imposed a substantive variance and punished Singh for trying to offer

explanations for his conduct. If indeed the district court conflated Singhʹs

statements in mitigation with a failure to accept responsibility, then it committed

procedural error.

Considered as a whole, Singhʹs letter was an apology and a

statement of remorse. It was a plea for mercy and an attempt to explain his

motivations. Singh stated that he was ʺso sorryʺ for his actions and admitted that

he had engaged in ʺwrongdoing.ʺ App. at 76. He acknowledged that he had

‐23‐ caused his family and others a lot of ʺpain and trouble.ʺ

He explained that

his ʺlong jail monthsʺ (he had been in prison for more than eight months at the

time) had taught him a ʺhard lesson, not to do anything wrong again.ʺ Id. at 78.

He promised not ʺto break the law again for the sake of [his] daughter and

family.ʺ Id. It was in this context that Singh made the statements of concern to

the district court.

A defendantʹs acceptance of responsibility and his assertion of

mitigating circumstances are not necessarily inconsistent or incompatible. The

concepts are related but independent. Cf. United States v. Douglas,

(5th Cir. 2009) (ʺWe hold that ʹlack of remorseʹ and ʹacceptance of

responsibilityʹ can be separate factors and that a district court may consider each

independently of the other.ʺ); United States v. Andrews, 390 F.3d 847‐48 (5th Cir.

2004) (holding, in pre‐Booker case, that district court erred in upwardly departing

from Guidelines range on grounds defendant ʺhad not completely accepted

responsibility,ʺ where it had granted defendant acceptance‐of‐responsibility

reduction in calculating range).

The Guidelines authorize a two‐step decrease in offense level if a

defendant ʺclearly demonstrates acceptance of responsibility.ʺ U.S. Sentencing

Guidelines Manual § 3E1.1(a). An additional one‐step decrease is available,

‐24‐ ʺupon motion of the government,ʺ where the defendantʹs offense level without

any acceptance‐of‐responsibility credit is at least 16 and his ʺtimelyʺ notification

of his intent to plead guilty saves the government from preparing for trial and

permits ʺthe government and the court to allocate their resources efficiently.ʺ Id.

§ 3E1.1(b); see generally United States v. Delacruz,

(2d Cir. 2017).

ʺʹ[T]he paramount factor in determining eligibility for § 3E1.1 credit is whether

the defendant truthfully admits the conduct comprising the offense or offenses of

conviction.ʹʺ United States v. Kumar,

(2d Cir. 2010) (quoting

United States v. Teyer,

(S.D.N.Y. 2004)). In deciding whether

to grant acceptance‐of‐responsibility credit, the district court is to consider, inter

alia, whether the defendant ʺtruthfully admit[ed] the conduct comprising the

offense(s) of conviction, and truthfully admit[ed] or not falsely den[ied] any

additional relevant conduct.ʺ U.S. Sentencing Guidelines Manual § 3E1.1

Application Note 1(A). A defendant is not required, however, ʺto volunteer, or

affirmatively admit, relevant conduct beyond the offense of convictionʺ to

qualify for the reduction. Id.; see United States v. Zapata,

, 49‐50 (1st Cir.

1993) (conduct underlying an ʺaggravated felonyʺ for purposes of

(b)(2) is not conduct ʺpart of the instant offenseʺ under § 4A1.2(a)(1) nor

relevant conduct).

‐25‐ A defendant has an ʺabsolute rightʺ to be heard at sentencing to

offer mitigating circumstances. United States v. Feng Li,

, 132‐333 (2d

Cir. 1997) (citation and internal quotation marks omitted). Rule 32 of the Federal

Rules of Criminal Procedure requires the court, before imposing sentence, ʺto

permit the defendant to speak or present any information to mitigate the

sentence.ʺ Fed. R. Crim. P. 32(i)(4)(A)(ii). A defendantʹs right to ʺattempt to

mitigate punishmentʺ has ʺhistorical roots in the common law,ʺ and ʺthe

opportunity to plead for mercy is another provision in a procedural body of law

designed to enable our system of justice to mete out punishment in the most

equitable fashion possible, to help ensure that sentencing is particularized and

reflects individual circumstances.ʺ Feng Li,

(quoting United States

v. Barnes,

(7th Cir. 1991)) (internal quotation marks omitted).6

Singhʹs assertions that he was ʺfoolis[h], selfish and dumbʺ when he

followed his friends in committing crimes some twenty years earlier, when he

was only 21 or 22 years old, and that he returned to the United States in part for

fear of his life (and to be with his family) were not, in our view, inconsistent with

his acknowledgment of responsibility and wrongdoing. App. at 77. These

6 See also

(ʺNo limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.ʺ). ‐26‐ comments did not indicate a lack of remorse, but were merely an effort by Singh

to explain why he broke the law. He truthfully admitted the conduct comprising

the offense of conviction. A defendantʹs motivation for engaging in criminal

conduct is unquestionably a proper consideration at sentencing. See, e.g., Stewart,

590 F.3d at 140‐41 (ʺIn evaluating culpability, we cannot discount the relevance of

the defendantʹs motivations ‐‐ i.e., whether mercenary, see, e.g.,

(murder for hire), or born from a commitment to the use of violence.ʺ); United

States v. Hansen,

(2d Cir. 1983) (noting ʺʹthe long unbroken

tradition of the criminal law that harsh sanctions should not be imposed where

moral culpability is lackingʹʺ (quoting Lennon v. INS,

(2d Cir.

1975))); accord Porter v. McCollum,

(2009) (holding that defense

counsel failed to provide effective assistance where ʺ[t]he judge and jury at

[defendantʹs] original sentencing heard almost nothing that would humanize

[defendant] or allow them accurately to gauge his moral culpabilityʺ).7

7 ʺConsider, for example, a dutiful son who commits bank fraud to fund a necessary medical caretaker for his aged mother. Because this defendantʹs motive to provide for his mother makes him less culpable than a defendant who commits the same fraud to finance unneeded luxuries, a court might reasonably conclude that the dutiful sonʹs ʹfamily circumstancesʹ call for a lesser sentence . . . .ʺ Douglas A. Berman, Addressing Why: Developing Principled Rationales for Family‐Based Departures, 13 Fed. Sentʹg Rep. 274, 277 (2001). ‐27‐ There may be cases, of course, where a defendantʹs claim of

mitigating circumstances does undermine his acceptance of responsibility, and

the district court may take that lack of genuineness into account. See U.S.

Sentencing Guidelines Manual § 3E.1 Application Note 3. An example is

provided by United States v. Douglas, in which the Fifth Circuit affirmed a

sentence where the district court granted acceptance‐of‐responsibility credit but

then upwardly departed because of the defendantʹs lack of remorse. 569 F.3d at

527‐28.

There the defendant was charged with felony possession of a

weapon; he had handed a loaded handgun to a child who then accidentally shot

himself. The district court awarded the defendant acceptance‐of‐responsibility

credit, but departed above the Guidelines range because of the defendantʹs lack

of remorse. Id. The sentencing allocution included the following exchange:

The Defendant: I have nothing to say. I have nothing to say your honor.

The Court: So you have not learned anything from the offense?

The Defendant: Have I learned anything?

The Court: Thatʹs exactly what I asked.

The Defendant: I should have stayed in Mexico. I shouldnʹt

‐28‐ have come back.

The Court: You have no remorse for what happened?

The Defendant: I didnʹt do it. He [the child] done it to himself.

Id. at 525. In contrast, in this case, Singh did show remorse. His efforts to seek

mercy did not undermine his acceptance of responsibility.

ʺSentencing, that is to say punishment, is perhaps the most difficult

task of a trial court judge.ʺ Jack B. Weinstein, Does Religion Have a Role in

Criminal Sentencing?,

, 539 (2007). While there are many

competing considerations in every sentencing decision, a sentencing judge must

have some understanding of ʺthe diverse frailties of humankind.ʺ See Woodson v.

North Carolina,

(1976) (plurality opinion). In deciding what

sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of

punishment,

(a), a sentencing judge must have a ʺgenerosity of

spirit, that compassion which causes one to know what it is like to be in trouble

and in pain.ʺ Guido Calabresi, What Makes a Judge Great: To A. Leon

Higginbotham, Jr.,

, 513 (1993); see also Edward J. Devitt, Ten

Commandments for the New Judge,

(1979), reprinted in

,

209 (1979) (ʺBe kind. If we judges could possess but one attribute, it should be a

‐29‐ kind and understanding heart. The bench is no place for cruel or callous people

regardless of their other qualities and abilities. There is no burden more onerous

than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment

because of a perception that in attempting to explain his actions and plead for

mercy he did not fully accept responsibility, it committed procedural error.

C. The Request for Reassignment

Singh requests that we order that the case be reassigned on remand

to a different judge for resentencing.

ʺRemanding a case to a different judge is a serious request rarely

made and rarely granted.ʺ United States v. Awadallah,

(2d Cir.

2006). We will grant a request for reassignment on remand only in ʺʹunusual

circumstances.ʹʺ United States v. Brennan,

(2d Cir. 2005) (quoting

United States v. Robin,

(2d Cir. 1977)). We are not persuaded that

reassignment is necessary or appropriate here. We are confident that on remand

the experienced and capable district judge will conduct a full resentencing, in

compliance with all procedural requirements, and impose a sentence that is fair,

reasonable, and sufficient but not longer than necessary to meet the goals of

justice.

‐30‐ CONCLUSION

The judgment of the district court is VACATED and the case is

REMANDED for resentencing. The mandate shall issue forthwith.

‐31‐