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United States v. Vincent Elbert

September 19, 2011

UNITED STATES, APPELLEE,
v.
VINCENT ELBERT, A.K.A. BJOHNTO90, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

Submitted: April 8, 2011

Before: JACOBS, Chief Judge, CABRANES, Circuit Judge, and KRAVITZ, District Judge.*fn1

On defendant Vincent Elbert's appeal from his 30 conviction and sentence imposed, after his guilty plea, by 31 the United States District Court for the Southern District 32 of New York (Rakoff, J.), counsel filed a motion with this 33 Court pursuant to Anders v. California, 386 U.S. 738 (1967) 34 and the government filed a motion for summary affirmance.

1 The motions are granted. Although we have previously held 2 that, solely in the context of an Anders motion, failure to 3 provide a written statement of reasons that complies with 18 4 U.S.C. § 3553(c)(2) always necessitates a remand to the 5 district court, United States v. Hall, 499 F.3d 152 (2d Cir. 6 2007) (per curiam), we see no reason why the Anders context 7 requires this unique treatment. We therefore hold that, 8 although compliance with the strictures of section 9 3553(c)(2) is always required, remand is not always required 10 to remedy noncompliance. In so ruling, we abrogate our 11 prior holding in Hall only to the limited extent that it 12 uniformly required remand in these circumstances.

On defendant Vincent Elbert's appeal from his 26 conviction and sentence imposed, after his guilty plea, by 27 the United States District Court for the Southern District 28 of New York (Rakoff, J.), counsel filed a motion with this 29 Court pursuant to Anders v. California, 386 U.S. 738 (1967) and the government filed a motion for summary affirmance.

2 Because there are no non-frivolous issues for appeal and 3 remand cannot benefit the defendant in this case, we grant 4 defense counsel's motion to be relieved and the government's 5 motion for summary affirmance. Our review of the record 6 shows that the district court imposed a below-Guidelines 7 sentence without providing a written statement that 8 explained with "specificity," 18 U.S.C. § 3553(c)(2), the 9 reasons for the sentence imposed.

10 We have previously held that, in the context of an 11 Anders motion, failure to provide a statement of reasons 12 that complies with section 3553(c)(2) necessitates a remand 13 to the district court. See United States v. Hall, 499 F.3d 14 152, 157 (2d Cir. 2007) (per curiam). We have not, however, 15 applied as rigid a requirement in the non-Anders context.

16 See, e.g., United States v. Jones, 460 F.3d 191, 197 (2d 17 Cir. 2006); United States v. Fuller, 426 F.3d 556, 567 (2d 18 Cir. 2005). We now hold that--even in the context of an 19 Anders motion--although compliance with section 3553(c)(2) 20 is always required, remand is not always required to remedy 21 noncompliance. In so holding, we abrogate our prior holding 22 in Hall to the limited extent that it uniformly requires 23 remand in these circumstances.

BACKGROUND

Vincent Elbert pleaded guilty to (i) one count of 3 attempting, after a prior sex-offense conviction, to entice 4 individuals under the age of eighteen to engage in sexual 5 activity for which a person can be charged with a criminal 6 offense, in violation of 18 U.S.C. §§ 2422(b) and 2426; (ii) 7 one count of traveling in interstate commerce, after a prior 8 sex-offense conviction, for the purpose of engaging in 9 illicit sexual conduct, in violation of 18 U.S.C. §§ 2423(b) 10 and 2426; and (iii) one count of distributing child 11 pornography, after a prior conviction for aggravated sexual 12 abuse, sexual abuse, or abusive sexual conduct involving a 13 minor or ward, in violation of 18 U.S.C. §§ 2252A(a)(1) and 14 2252A(b)(1).*fn2

15 Prior to accepting the defendant's guilty plea, the 16 district judge conducted a hearing in full compliance with 17 Federal Rule of Criminal Procedure 11, including confirming: 18 that Elbert understood the nature of the charges against 19 him, that a sufficient factual predicate supported the 20 charges to which he was pleading guilty, that Elbert understood the rights he was giving up by pleading guilty, 2 and that he was satisfied with his counsel's representation.

3 The district court also ensured that Elbert understood the 4 statutory minimum and maximum sentences associated with each 5 count of the indictment, including a mandatory minimum 6 sentence of twenty years and maximum sentence of life 7 imprisonment on count one.

8 The government asked the district court to sentence 9 Elbert to a within-Guidelines sentence of 360 months' to 10 life imprisonment. The defendant sought a below-Guidelines 11 sentence, citing an expert psychological evaluation which 12 detailed trauma he experienced as a child and described the 13 impact of his military service in Vietnam. At the 14 conclusion of a thorough sentencing hearing, the district 15 judge concluded that Elbert "is a troubled personality" who 16 had made "terrible mistakes," and that the mandatory minimum 17 sentence of twenty years' imprisonment, to be followed by 18 five years of supervised release, was "sufficient, but not 19 greater than necessary," in light of the "nature and 20 circumstances of the offense and the history and 21 characteristics of the defendant," 18 U.S.C. ยง 3553(a), to 22 adequately address the factors set out in 18 U.S.C. ...


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