22-1195-cr United States v. Pattison

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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 18th day of January, two thousand twenty-four. 4 5 PRESENT: 6 MICHAEL H. PARK, 7 EUNICE C. LEE, 8 SARAH A. L. MERRIAM, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 22-1195-cr 17 18 Stephen Reed Pattison, 19 20 Defendant-Appellant. 21 _____________________________________ 22 23 FOR APPELLEE: TIFFANY H. LEE, Assistant United States 24 Attorney, for Trini E. Ross, United States 25 Attorney, Western District of New York, 26 Buffalo, NY. 27 28 FOR DEFENDANT-APPELLANT: JAY S. OVSIOVITCH, Federal Public 29 Defender’s Office, Western District of New 30 York, Rochester, NY. 1 Appeal from a judgment of the United States District Court for the Western District of New

2 York (Larimer, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the judgment of the district court is VACATED AND REMANDED.

5 Defendant-Appellant Stephen Reed Pattison pleaded guilty to one count of being a felon

6 in possession of a firearm in violation of

(g)(1) and 924(a)(2). At sentencing, the

7 district court calculated a Guidelines range of 46 to 57 months’ imprisonment before both

8 departing under section 4A1.3(a) of the Guidelines and varying upwards, resulting in a 96-month

9 sentence. Pattison appeals, arguing that the district court failed to provide the notice required by

10 Rule 32(h) of the Federal Rules of Criminal Procedure before departing and that the sentence was

11 procedurally and substantively unreasonable. We assume the parties’ familiarity with the

12 underlying facts, the procedural history of the case, and the issues on appeal.

13 Pattison did not argue below that the district court failed to provide notice before departing,

14 so we review for plain error. See United States v. Gilmore,

(2d Cir. 2006),

15 abrogated on other grounds by Irizarry v. United States,

(2008). But failing to

16 provide notice under Rule 32 can be plain error. See United States v. DeMott,

(2d

17 Cir. 2008) (stating that “failure to provide” the similar notice required by Federal Rule of Criminal

18 Procedure 32(i)(1)(C) “amounts to plain error”); United States v. Cole,

(2d Cir.

19 2007) (same).

20 Rule 32(h) states that “[b]efore the court may depart from the applicable sentencing range

21 on a ground not identified for departure either in the presentence report or in a party’s prehearing

22 submission, the court must give the parties reasonable notice that it is contemplating such a

23 departure.” Fed. R. Crim. P. 32(h). It is undisputed that the district court did not provide advance

2 1 notice before departing. Instead, the government argues that the district court in fact did not depart,

2 but only varied from the Guidelines range, and that Rule 32(h) applies only to departures. See

3 United States v. Davis,

, 198 (2d Cir. 2023). It further argues that, in any event, the

4 government’s presentencing submission provided adequate notice to Pattison.

5 First, the district court clearly stated that it was departing, identified the specific Guidelines

6 provision governing the departure, said it was following the policy statement for the departure,

7 filled out the statement of reasons for a departure, and stated on the record that it arrived at its

8 above-Guidelines sentence partly by way of “an upward departure for inadequacy of criminal

9 history” and partly “as a variance under the 3553A factors.” Joint App’x at 91-92. The district

10 court departed.

11 Second, the government’s presentencing submission did not provide adequate notice that

12 it was seeking a departure under section 4A1.3(a) of the Guidelines. Nowhere does the

13 government’s submission mention section 4A1.3. Although the government did address Pattison’s

14 criminal history, it did so in the context of the

(a) factors, not the specific standard

15 provided by section 4A1.3(a)(1) of the Guidelines for departing based on the inadequacy of

16 Pattison’s criminal history category. And finally, the district court stated in the statement of

17 reasons that its decision to depart was not the result of a motion for a departure by the parties,

18 indicating that it did not depart on a ground “identified for departure . . . in a party’s prehearing

19 submission.” Fed. R. Crim. P. 32(h).

20 The district court’s failure to notify Pattison that it was contemplating a departure under

21 section 4A1.3(a) was error, and we cannot be sure that it did not affect Pattison’s substantial rights.

22 Accordingly, we remand and do not reach the issue whether the sentence imposed was

23 substantively reasonable.

3 1 For the foregoing reasons, we VACATE AND REMAND the judgment of the district

2 court.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court

4