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Second Circuit Vacates 60-Month Sentence in Model Guidelines Sentencing Decision

This is a model guidelines sentencing decision filled with nuggets of pure gold in which the district judge (Katherine Forrest of the S.D.N.Y.) was sharply rebuked for imposing an above-guidelines sentence in an illegal reentry case that was three times the top of the guidelines range—a sentence that the Court concluded was “both procedurally and substantively unreasonable.”

The defendant in this case, Latchman Singh, pled guilty, without a plea agreement, to one count of illegally reentering the United States after having been removed following a conviction for a prior aggravated felony. His Guidelines sentencing range (“GSR”) was 15 to 21 months in prison, 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.

Singh appealed that sentence, contending that it was both procedurally and substantively unreasonable. The Second Circuit agreed; and it vacated the sentence and remanded for a new sentencing.

Singh was born in Guyana in 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. In 1997, Singh married a woman who was a permanent resident of the United States. Together they had a daughter, now approximately 17 years old. Before his arrest, he lived with his wife and their daughter in the Bronx and had a positive relationship with both.

In 1995, Singh was convicted in the Southern District of New York of larceny and postal theft; and he was sentenced to twelve months’ imprisonment. The conviction qualified as an aggravated felony within the meaning of 8 U.S.C. § 1326(b). In 2004, an immigration judge ordered Singh removed from the United States, and he was eventually removed from the country in 2010.

At some point after his removal, Singh illegally reentered the United States, and he was arrested by the New York City Police Department in the Bronx on February 9, 2012 and charged with illegal reentry. After he pled guilty, the probation department prepared a presentence investigation report (“PSR”), which calculated a GSR of 15 to 21 months; and both the probation department and the government recommended a sentence of 21 months, which included a three-level reduction based on Singh’s “clearly demonstrated” acceptance of responsibility.

At sentencing, Judge Forrest adopted the finding of fact set forth in the PSR, but she imposed a sentence of 60 months in prison - an upward variance that was nearly three times the top of the GSR. In explaining her reasons for that variance, Judge Forrest observed that, as reported in the PSR, in addition to the 1995 conviction for larceny and postal theft, Singh had been convicted of seven other crimes. Based on those eight prior convictions, Judge Forrest stated in part:

"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 shouldn’t be exposed to it. It’s repeated and it’s repeated so often and so brazenly that I do not have any hope. I have no expectation, frankly, that it could stop. I don’t know what the issue may be that’s causing it....

"I don’t believe he can live here honestly. I don’t 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 it’s not....

"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 wouldn’t do it again...."

In assessing the sentence imposed, Judge Chin first wrote that appellate courts will set aside a sentence as substantively unreasonable only in “exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” He also wrote: “We will identify ‘as substantively unreasonable only those sentences that are so “shockingly high, shockingly low, or otherwise unsupportable as a matter of law’ “that allowing them to stand would ‘damage the administration of justice.’” He then continued: “In this case, on this record, even if Singh’s sentence does not shock the conscience, ‘it at the very least stirs the conscience.’”

In reaching that unusually blunt conclusion, Judge Chin noted a plethora of disagreements with the district court’s stated reasons for its sentence. First, he noted that “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. An above-Guidelines sentence was imposed in only 1.3% of all illegal reentry cases, 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.”

Second, Judge Chin sharply disagreed with the district court’s sloppy assumption that a substantial variance was warranted in this case because of Singh’s “consistent history of criminal conduct” and the “very high likelihood of recidivism.” Looking at the nature and scope of those prior convictions, he noted that none involved violence or narcotics trafficking and that six of the eight prior convictions “carried zero criminal history points.” He then continued:

Six of the eight convictions were more than 10 years old. Four were more than 20years old, counting back from the date of sentencing, and Singh was only 21 and 22 years old when he committed those offenses. 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 (“CHC”) III or higher. 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.

As we note above, a major variance must be supported by “a more significant justification.” In the context of the sentencing commission’s 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. (Internal citations omitted)

Next the Court turned to a series of procedural errors made by the district court, the most blatant of which was the district court’s repeated references to the “multiple numbers of times” that Singh had been arrested and deported. “In fact,” Judge Chin pointedly wrote, “Singh had been arrested for illegal reentry only twice including the instant offense.” He then continued:

The district court also concluded that Singh “has spent the majority of his adult life back and forth, that is, between Guyana and the United States. 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 ‘the majority of his adult life back and forth.” To the contrary, he had spent the majority of his adult life living in the United States. The district court’s conclusion that Singh was “almost certain” to illegally reenter again surely was influenced by these apparently erroneous views of the facts.

This is an important sentencing decision that covers several sentencing issues in addition to those discussed above (such as an interesting discussion about the correlation between acceptance of responsibility and the assertion of mitigating circumstances); and it includes many memorable sentencing nuggets. It is a must read decision for any defense counsel who practices sentencing law and it should be read and studied in its entirety.

See: United States v. Singh, 877 F.3d 107 (2d Cir. 2017). 

This article originally appeared in the December 2017 issue of Punch & Jurists and is reprinted with permission.

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United States v. Singh, 877 F.3d 107 (2d Cir. 2017)




 

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