22-1771 (L) United States v. Gregory

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 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, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 26th day of January, two thousand twenty-four. 4 5 PRESENT: 6 DENNIS JACOBS 7 BARRINGTON D. PARKER 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. Nos. 22-1771, 22-1865 17 18 David Gregory, 19 20 Defendant-Appellant. * 21 ________________________________ 22 23

* The Clerk of Court is respectfully directed to amend the official caption as set forth above.

1 1 FOR DEFENDANT-APPELLANT: CLARA S. SPERA (Minahil Khan, Wilmer Cutler 2 Pickering Hale and Dorr LLP, Washington, D.C.; 3 Alan Schoenfeld, Brittany Llewellyn, Wilmer 4 Cutler Pickering Hale and Dorr LLP, New York, 5 NY, on the brief), Wilmer Cutler Pickering Hale 6 and Dorr LLP, New York, NY. 7 8 FOR APPELLEE: SEAN M. SHERMAN (Tanya Hajjar, David C. 9 James, on the brief), Assistant United States 10 Attorneys, Of Counsel, for Breon Peace, United 11 States Attorney for the Eastern District of New 12 York, Brooklyn, NY. 13 14 Appeal from a judgment of the United States District Court for the Eastern District of New

15 York (Korman, J.).

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

17 DECREED that the judgment of the district court is VACATED and the case is REMANDED

18 for resentencing.

19 The sole issue in dispute in this matter is whether the need to preserve the appearance of

20 justice advises that this case, upon remand for resentencing, should be assigned to a different judge.

21 We hold that it does.

22 I. Vacating Count 6 and Remanding for Resentencing

23 Before we address reassignment, however, we first consider Defendant-Appellant David

24 Gregory’s unopposed request to vacate his conviction on Count 6 of the superseding indictment

25 based on United States v. Taylor,

(2022).

26 Gregory appeals from an amended judgment entered by the district court following

27 resentencing. Gregory was initially found guilty on seven counts, including two counts of

28 attempted Hobbs Act robbery (Counts 5 and 7) and the use and possession of firearms in relation

29 to each robbery under

(c) (Counts 6 and 8). In 2020, the district court vacated

30 Gregory’s § 924(c) conviction on Count 8 but did not vacate his conviction on Count 6. Gregory

2 1 was sentenced to 405 months’ time after the Count 8 conviction was vacated, a sentence including

2 60 months for the Count 6 charge, which was imposed consecutively. According to counsel,

3 Gregory has served approximately 379 months’ time and still has 26 months’ time left on his

4 sentence—less than the 60 months he was sentenced to for his conviction on Count 6.

5 On appeal, Gregory argues—and the Government agrees—that his conviction on Count 6

6 under

(c) should be vacated in light of Supreme Court holding in United States v.

7 Taylor that attempted Hobbs Act robbery does not constitute a crime of violence under 18 U.S.C.

8 § 924(c). Taylor,

. We agree. 1

9 As a result, we vacate the judgment of the district court and remand for resentencing.

10 II. Reassignment on Remand

11 Now turning to the reassignment inquiry, we recognize that when considering whether to

12 reassign a case on remand, courts consider:

13 (1) whether the original judge would reasonably be expected upon remand to have 14 substantial difficulty in putting out of his or her mind previously-expressed views 15 or findings determined to be erroneous [,] . . . (2) whether reassignment is advisable 16 to preserve the appearance of justice, and (3) whether reassignment would entail 17 waste and duplication out of proportion to any gain in preserving the appearance of 18 fairness. 19 20 United States v. Robin,

(2d Cir. 1977) (per curiam).

21 The length of time served and the nature of the exchanges between Gregory and the

22 district court judge during sentencing advise reassignment to preserve the appearance of justice.

23 To be clear, we do not hold that the other considerations are of relevance to this conclusion.

1 Gregory also requests resentencing on the alternative bases that his sentence was procedurally unreasonable and that the district court abused its discretion in denying his motion for compassionate release. But Gregory only asks the Court to reach these issues if it declines to vacate Count 6. Reply at 1–2 (“Because the vacatur of Count 6 will require a resentencing on remand, this Court does not need to reach the other two issues on appeal. . . . [B]oth issues provide an independent basis for vacatur of the district court’s orders and remand for further proceedings.”). Because the Court finds that vacatur of Gregory’s conviction on Count 6 is appropriate, the Court declines to consider Gregory’s additional arguments.

3 1 * * *

2 For these reasons, we VACATE the judgment of the district court, direct that the case be

3 REASSIGNED, and REMAND for further proceedings consistent with this summary order.

4 Considering the Court’s vacatur of Gregory’s conviction on Count 6, the amount of time

5 Gregory has already served, and the role that the now-vacated Count 6 played in enhancing

6 Gregory’s current sentence, it is further ORDERED that the mandate shall issue forthwith.

7 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk of Court

4