Submitted March 30, 2015.
Kaylon Pruitt appeals from the 46-month term of imprisonment imposed upon him after his plea of guilty to being a felon in possession of a firearm. He contends that the district court failed to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c) . Applying plain error review, we find no such error but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form that all sentencing judges are required to use be amended to bring it into conformity with the law.
JAMES F. GREENWALD (James P. Egan, on the brief), Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Syracuse, NY.
RICHARD R. SOUTHWICK (Steven D. Clymer, on the brief), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.
Before: POOLER, Circuit Judge, and GLEESON, District Judge.
JOHN GLEESON, District Judge :
Kaylon Pruitt appeals from the May 29, 2014 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Suddaby, J. ). Pruitt was sentenced principally to a 46-month term of imprisonment on his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He contends that the district court committed procedural error during his sentencing by failing to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c).
We affirm but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form included within the statutorily-required form for the entry of criminal judgments -- Form AO 245B -- be amended to bring it into conformity with § 3553(c) and Supreme Court precedent. Specifically, a check-a-box section of the form, which was checked by the district court in this case, invites sentencing judges to impose a sentence within the applicable Guidelines range simply because the judge finds no reason to depart. Because that both undermines the statutory obligation to state the reasons for every sentence and unlawfully presumes the reasonableness of the advisory Guidelines range, the form should be amended.
On October 15, 2013, a New York State Parole Officer conducted an unannounced home visit of Pruitt's housemate, who was on parole. Pruitt, believing the officer might be an intruder, went to the door with a shotgun. The parole officer drew his weapon and directed the 22-year-old Pruitt to lower the shotgun. Pruitt complied. A subsequent search of the home revealed that Pruitt was abusing drugs.
On November 20, 2013, a grand jury returned a one-count indictment charging Pruitt with being a felon in possession of a firearm. The underlying conviction, which occurred in 2009 in South Carolina, was for burglary in the second degree. Pruitt pled guilty to the only charge against him on January 16, 2014.
Pruitt appeared for sentencing on May 21, 2014. The presentence report calculated his Guidelines range to be 37-46 months. It described Pruitt's difficult upbringing in a gang- infested South Carolina neighborhood and his mental health history (which included behavioral, emotional, and psychiatric problems, and suicide attempts). It also described additional criminal charges arising out of Pruitt's conduct while in custody after his arrest in this case. Specifically, Pruitt allegedly inappropriately touched a nurse outside her clothing and then punched and threatened the corrections officer who reacted to the touching by trying to restrain Pruitt.
Defense counsel, relying on Pruitt's upbringing and mental health issues, requested a sentence of no greater than 36 months, the bottom of the advisory Guidelines range. For its part, the government requested a sentence at the top of the range, contending that Pruitt was a " dangerous" man " from whom society needs to be protected." App'x at 48.
Immediately after hearing the arguments of counsel, the district court stated as follows:
Okay. [The] Court's prepared to impose sentence. The Court has reviewed and considered all the pertinent information including but not limited to the presentence investigation report, the addendum, submissions by counsel, and the 2013 edition of the Sentencing Guidelines manual, as well as the factors outlined in 18 U.S.C. [§ ] 3553(a). The court adopts the factual information and the guideline applications contained in the presentence investigation report.
The court finds the total offense level is 17, the criminal history category is IV and the guideline imprisonment range is 37 to 46 months.
Upon your plea of guilty on Count 1 of the indictment, it is the judgment of the court that you are hereby committed to
the custody of the Bureau of Prisons for a period of 46 months.
App'x at 50-51.
On May 29, 2014, the district court entered judgment on Form AO 245B. The form is entitled " Judgment in a Criminal Case," and it provides a framework for judges to memorialize any prison term imposed, any supervised release or probation term and the conditions of such supervision, any criminal monetary penalties ( i.e., fine, restitution, assessments), and any denials of federal benefits. Most important to this appeal is the attachment to the form, entitled " Statement of Reasons." In Section I of the Statement of Reasons, which is headed " Court Findings on Presentence Investigation Report," the district court checked the box next to the statement, " The court adopts the presentence investigation report without change." In Section IV, headed " Advisory Guideline Sentencing Determination," the district court checked the box next to the statement, " The sentence is within an advisory range that is not greater than 24 months, and the court finds no reason to depart."
This appeal followed.
A. The Adequacy of the District Court's Statement of Reasons
Pruitt contends that the district court committed procedural error at the sentencing proceeding by failing to offer a sufficient explanation for the 46-month, top-of-the-range sentence. He seeks a vacatur of the sentence and a remand directing the district court to either provide such an explanation or to conduct a new sentencing proceeding.
In evaluating whether a sentence is reasonable, we focus, inter alia, on whether the district court committed a significant procedural error, " such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . ." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Where, as here, there was no objection below to the action that is challenged on appeal, we generally review only for plain error. Fed. R. Crim. P. 52(b); United States v. Hargrett, 156 F.3d 447, 451 (2d Cir. 1998).
Under § 3553(c), the sentencing judge in every case is required to " state in open court the reasons for its imposition of the particular sentence," and must do so " at the time of sentencing." The district court in this case did not comply with that requirement. It should have explained the reasons for Pruitt's sentence at the time it was imposed. Had it done so, review by this Court may not even have been sought by Pruitt, and in any event it would have been made easier by the explanation. Most importantly, Pruitt would have received what every defendant deserves: a contemporaneous oral explanation by the judge for the sentence imposed. However, this Court has excused such failures on plain error review where, as here, the district court has adopted the presentence investigation report in open court and the factual findings in the report are adequate to support the sentence. See, e.g., United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004). Because the district court in this case explicitly adopted in open court the factual findings of the presentence report, and those facts provide adequate support for the sentence, we are constrained by our precedent to conclude that there was no plain error.
B. The Statement of Reasons Form
Our conclusion that Pruitt's sentence should be affirmed does not alleviate our concern with one facet of the record: the district court's finding -- made by checking a box on the Statement of Reasons form -- that " [t]he sentence is within an advisory guideline range that is not greater than 24 months, and the court finds no reason to depart." If that were the only reason provided by the district court for the sentence imposed upon Pruitt, we would be compelled to reverse and remand for a new sentencing proceeding. Because the form is prescribed by law, see 28 U.S.C. § 994(w), we urge the Sentencing Commission and the Judicial Conference of the United States to amend it.
The genesis of our concern is two-fold. First, as mentioned above, § 3553(c) requires sentencing judges to state the reasons for every sentence they impose. Second, whereas appellate courts are permitted, if they wish, to presume the reasonableness of a within-range sentence, sentencing judges are strictly forbidden from doing so. Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also Nelson v. United States, 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) (" The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable." ). A sentencing judge cannot choose a sentence within the applicable range simply because there is no reason not to do so.
The overwhelming majority of cases -- in FY 2014 it was 82.3% -- involve Guideline ranges that are not wider than 24 months. Sentencing judges in every one of those cases are (1) required by § 3553(c) to state the reasons for the sentence imposed, and (2) precluded by Rita and Nelson from presuming the reasonableness of the sentence imposed simply because it happens to be within the advisory range. The Statement of Reasons form undermines both the statute and the Supreme Court case law.
Specifically, for those cases, the form sets forth in Section IV three possible " Guideline Sentencing Determinations," denominated A, C, and D. A judge checks box A when the sentence imposed is within the advisory Guidelines range. No reasons for a within-range sentence need be provided. In fact, simply by checking box A, the judge is finished with Section IV of the form. If the judge sentences outside the range, however, more is required. Box C is checked when the sentencing judge has " departed" from the applicable range, ...