24-2707 (L)

24-2707 (L)
USA v. Reddell Smith
1UNITED STATES COURT OF APPEALS
2FOR THE SECOND CIRCUIT
3- - - - - -
4August Term, 2025
5(Argued: October 24, 2025 Decided: August 12, 2026)
6Docket Nos. 24-2707 (Lead), 24-2712 (Con)
7_________________________________________________________
8UNITED STATES OF AMERICA,
9
10Appellee,
11
12- v. -
13
14REDDELL SMITH,
15
16Defendant-Appellant.
*
17_________________________________________________________
18
19
20
*The Clerk of Court is instructed to amend the official caption to conform
with the above.

1Before: LOHIER, Chief Judge, KEARSE and PARK, Circuit Judges.
2Appeals from an October 9, 2024 amended judgment of conviction (and
3a related order) of the United States District Court for the Northern District of New
4York, Frederick J. Scullin, Jr., Judge, entered without a resentencing hearing following
5a remand in United States v. Smith, No. 22-2118, 2024 WL 1208636 (2d Cir. Mar. 21,
62024), in which this Court (a) affirmed the sentence that had been imposed on
7defendant orally on August 30, 2022, (b) vacated the September 13, 2022 written
8judgment that contradicted a term of the oral sentence, and (c) instructed the district
9court to enter a written judgment that conformed to the terms of the orally imposed
10sentence. On appeal, defendant argues principally that the October 9, 2024 amended
11judgment should be vacated, and the case remanded for resentencing, on the ground
12that he was entitled to be present for resentencing. Finding no merit in defendant's
13arguments, we affirm the October 9, 2024 amended judgment and the challenged
14related order.
15Affirmed.
16
17RAJIT S. DOSANJH, Assistant United States Attorney,
18Syracuse, New York (Daniel Hanlon, Acting United
19States Attorney for the Northern District of New
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1York, Nicolas Commandeur, Assistant United States
2Attorney, Syracuse, New York, on the brief), for
3Appellee.
4
5CHLOE LEWIS, New York, New York (Brian A. Jacobs,
6Morvillo Abramowitz Grand Iason & Anello, New
7York, New York, on the brief), for Defendant-
8Appellant.
9
10
11Per Curiam:
12This case returns to us following proceedings in the United States District
13Court for the Northern District of New York, Frederick J. Scullin, Jr., Judge, after our
14remand in United States v. Smith, No. 22-2118, 2024 WL 1208636 (2d Cir. Mar. 21, 2024)
15("Smith I"), for the correction of a written amended judgment against defendant
16Reddell Smith for violation of supervised release (or "VOSR"), entered on September
1713, 2022 ("First Amended VOSR Judgment"), to conform to the terms of the VOSR
18sentence imposed on Smith orally on August 30, 2022. On remand, the district court,
19on October 9, 2024, without an in-person resentencing hearing, entered an amended
20judgment ("Second Amended VOSR Judgment") that matched the VOSR sentence
21imposed on Smith orally. On this appeal, Smith contends that the Second Amended
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1VOSR Judgment (along with a related order) should be vacated because it was
2entered in violation of his right to be sentenced in-person. For the reasons that
3follow, we disagree.
4
5I. BACKGROUND
6
7A. Earlier Proceedings
8We identify the judgment that was at issue in Smith I as the First
9Amended VOSR Judgment because it was entered following a prior appeal, United
10States v. Hopper, No. 19-3087, 2022 WL 1566258 (2d Cir. May 17, 2022) ("Hopper"), in
11which Smith was an appellant and successfully challenged certain aspects of the
12sentence imposed on him following his plea of guilty to a RICO conspiracy offense
13charged in a 2018 indictment ("2018 RICO" case). Smith had previously been
14convicted of RICO conspiracy as charged in a 2009 indictment ("2009 RICO" case); and
15following his 2015 release from prison for that crime, while he was on supervised
16release he was arrested for and convicted of several additional crimes. He admitted
17a violation of supervised release.
18
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1In 2020, the district court held a combined hearing for sentencing in
2Smith's 2018 RICO case and on the charge of supervised-release violations. In Hopper,
3we discerned errors in the calculation of Smith's sentences for the RICO conspiracy
4and the supervised-release violations, and we vacated his sentence and remanded
5"for plenary resentencing," Hopper, 2022 WL 1566258, at *6. (The district court
6proceedings on that remand became the subject of Smith I.)
7On remand from Hopper, the district court on August 30, 2022, with
8Smith present, again held a combined hearing for sentencing on the RICO and VOSR
9charges. At that hearing, for the 2018 RICO conviction the court sentenced Smith
10principally to a 71-month term of imprisonment to be followed by a three-year term
11of supervised release. That new sentence was eventually embodied in an amended
12judgment dated September 13, 2022 ("Amended 2018 RICO Judgment"). For the
13supervised-release violations, the court sentenced Smith to a 13-month term of
14imprisonment, with no supervised-release term to follow, but to be served
15consecutively to his prison term for the RICO conviction, before whatever state
16sentence would be imposed. United States v. Smith, No. 5:18-cr-353, Dkt. 594
17(Resentencing Transcript, August 30, 2022 ("Resentencing Tr."), at 20, 22-24).
18
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1However, on September 13, 2022, the district court entered the written
2First Amended VOSR Judgment, which stated that Smith's 13-month VOSR "sentence
3is to run concurrently with the sentence" for his RICO conviction. United States v.
4Smith, No. 5:09-cr-337, Dkt. 490 (First Amended VOSR Judgment at 3 (emphasis
5added)). The court's September 13, 2022 text order stated that "[p]ursuant to Rule
635(a), the Court hereby corrects Defendant Reddell Smith's sentence, which was
7imposed in clear error and hereby ORDERS that Defendant's sentence shall run
8concurrently with the [RICO] sentence . . . ." United States v. Smith, No. 5:09-cr-337,
9Dkt. 489.
10Smith appealed, contending that the district court misunderstood both
11how much time he would serve on his state sentence and its own authority to order
12that his federal sentence be served concurrently with the state sentence. The
13government cross-appealed, contending that the First Amended VOSR Judgment
14impermissibly stated that the VOSR and RICO prison terms were to be concurrent,
15because at sentencing the court had stated that the terms would be consecutive.
16These issues were resolved in Smith I, familiarity with which is assumed.
17In Smith I, we rejected Smith's contentions that the district court had
18misapprehended the amount of time Smith would serve on his state sentence or its
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1own authority to order his federal prison terms to run concurrently with the state
2prison term. We noted that the government's sentencing submission to the court had
3stated that concurrent sentences were possible, that the court had noted that it was
4"aware" of that possibility, and that Smith's concerns were discussed at the sentencing
5hearing in colloquy between the government and the court, and between the court
6and Smith. Smith I, 2024 WL 1208636, at *1-*2.
7We held, however, that the district court violated Rule 35 of the Federal
8Rules of Criminal Procedure by modifying Smith's VOSR sentence "[w]ithout
9identifying any legal error." Id. at *2. We stated:
10Rule 35(a) "authorizes correction only of obvious errors, and was
11not meant to allow the district court to reopen issues previously
12resolved at the sentencing hearing through the exercise of the
13court's discretion with regard to the application of the sentencing
14guidelines, or to reconsider the application or interpretation of the
15sentencing guidelines, or simply to change its mind about the
16appropriateness of the sentence." United States v. DeMartino, 112
17F.3d 75, 79 (2d Cir. 1997) . . . . "[A] district court's second thoughts
18with regard to the severity of the defendant's sentence, no matter
19how well intentioned, are not the sort of error that Rule [35(a)]
20was designed to remedy." Id. (quotation marks omitted).
21Id. at *2; see, e.g., United States v. Abreu-Cabrera, 64 F.3d 67, 69 (2d Cir. 1995) (Rule 35
22prohibits a sentencing court from modifying a sentence "simply because further
23reflection has caused it to have a change of heart."). We concluded:
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1We accordingly vacate the District Court's order imposing
2a concurrent sentence and remand to the District Court for it to
3impose the consecutive sentence it pronounced at Smith's resentencing
4hearing. See [United States v. Abreu-Cabrera, 64 F.3d] at 76.
5We have considered the parties' remaining arguments and
6conclude that they are without merit. For the foregoing reasons,
7the judgment of the District Court is AFFIRMED in part and
8VACATED in part, and the case is REMANDED for further
9proceedings consistent with this order.
10Smith I, 2024 WL 1208636, at *2.
11
12B. Proceedings on Remand from Smith I
13After our mandate in Smith I issued, the district court initially scheduled
14a resentencing hearing for October 15, 2024, and ordered that Smith be brought to the
15hearing. The government then submitted a letter to the court, arguing that no hearing
16was needed because the court had no authority to resentence Smith and was
17authorized only to amend the written judgment to reflect the sentence that the court
18had announced to Smith orally. Smith, in response, argued that no authority
19prohibited an in-person hearing for resentencing or prohibited the court from
20reconsidering its sentence in light of post-appeal events.
21
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1The court accepted the government's views, canceled the October 15
2hearing and the writ ordering Smith's appearance, and on October 9, 2024, entered
3the Second Amended VOSR Judgment, which conformed to its oral sentence by
4making Smith's VOSR sentence consecutive to his RICO and state-court sentences.
5These two appeals by Smith followed. In No. 24-2707, he challenges the
6October 9, 2024 Second Amended VOSR Judgment. In No. 24-2712, he challenges the
7district court's October 9, 2024 withdrawal of its writ requiring production of Smith
8for the (canceled) resentencing hearing. In the latter, his notice of appeal also refers
9to a "9/13/2022 judgment" in conjunction with the "10/9/2024 order"; but his briefs on
10appeal make no arguments with regard to either of the judgments dated September
1113, 2022.
12
13II. DISCUSSION
14
15In the present appeals, Smith contends that he had a constitutional right
16to be present at his VOSR resentencing, and that the district court erred in adopting
17the government's view that it had no authority to do more than impose its original
18sentence. He argues that nothing in Smith I precluded the court from resentencing
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1him in-person and from considering arguments for a different sentence based on facts
2that postdated the appeal. We are unpersuaded.
3"Under both the Constitution and Federal Rule of Criminal Procedure
443(a)(3), a criminal defendant has the right to be present during sentencing." United
5States v. Salim, 690 F.3d 115, 122 (2d Cir. 2012). That right persists in a proceeding
6"where the district court re-enters a sentence which has been vacated or set aside by
7the Court of Appeals" but not in "a proceeding by which the district court corrects or
8changes a pre-existing sentence." United States v. Arrous, 320 F.3d 355, 359 (2d Cir.
92003). A remand for performance of a narrow sentencing task is presumed to be a
10remand for limited resentencing. "[A] mandate should not be" read as calling for de
11novo resentencing "unless it clearly says so" or unless the intent for de novo
12resentencing "is evident from the broader spirit of the mandate." United States v.
13Malki, 718 F.3d 178, 182 (2d Cir. 2013) (internal quotation marks omitted). We do not
14require in-person resentencing when a remand is "strictly ministerial" and leaves
15"nothing for the district court to do but enter an amended judgment in accordance with the
16dictate of our mandate." Burrell v. United States, 467 F.3d 160, 164-65 (2d Cir. 2006)
17("Burrell") (emphasis added), cert. denied by 549 U.S. 1344 (2007).
18
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1Unlike our mandate in Hopper, which remanded for "plenary
2resentencing," 2022 WL 1566258, at *6, our mandate in Smith I had a pinpoint focus.
3We "remand[ed] to the District Court for it to impose the consecutive sentence it
4pronounced at Smith's resentencing hearing." Smith I, 2024 WL 1208636, at *2. In
5instructing the district court to effectuate the August 30, 2022 sentence that had been
6orally pronounced in Smith's presence, by simply making a ministerial correction to
7conform the written judgment to the court's orally pronounced sentence, we merely
8"directed the district court to undertake a single non-discretionary act." Burrell, 467
9F.3d at 164-65.
10Smith's contention that Smith I did not foreclose a shorter sentence--or
11a resentencing hearing at which he could attempt to persuade the court to shorten his
12sentence--because it "authoriz[ed] 'further proceedings'" (Smith brief on appeal at 4
13(quoting Smith I at *2)) is meritless. As Smith recognizes (see, e.g., Smith brief on
14appeal at 3, 9, 12), the Smith I remand was "for further proceedings consistent with
15this order." Any proceeding with respect to the imposition of a sentence other than
16the one that had been orally imposed on August 30, 2022, would not have been
17"consistent with th[e Smith I] order." The district court properly interpreted that
18mandate as not requiring a de novo resentencing or a hearing.
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1Nor did Smith overcome the presumption of limited resentencing by
2"show[ing] that . . . an issue became relevant only after the initial appellate review,"
3or by arguing that "there is a 'cogent' or 'compelling' reason for resentencing de novo,
4such as a change in controlling law." United States v. Rigas, 583 F.3d 108, 118 (2d Cir.
52009). In his letter to the district court requesting that he be present, Smith did not
6identify any new issues, facts, or law that might have compelled a de novo
7resentencing hearing. His principal contention was that because the Bureau of
8Prisons ("BOP") had already released him from federal to state custody pursuant to
9the district court's September 13 written judgment of conviction, his sentence would
10"effectively increase." (United States v. Smith, No. 5:09-cr-337, Dkt No. 507 (Letter from
11Reddell Smith to Judge Scullin dated September 24, 2024, at 3).) Smith's argument
12that recognition of the clear and unambiguous oral sentence originally imposed on
13him would constitute a sentence increase is negated by the facts that his oral sentence
14"constitute[d] the judgment of the court," United States v. Thomas, 299 F.3d 150, 152-53
15(2d Cir. 2002) ("Thomas") (internal quotation marks omitted), and that the
16contradictory provision in the September 13 judgment was ineffective to reduce that
17original sentence, see id. at 153.
18
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1Smith also insists that the relevant new circumstances were the
2"commencement of his state sentence," which "could permissibly lead the District
3Court to adjust the federal sentence." (Smith reply brief on appeal at 13.) Again we
4disagree. The district court weighed the effect of Smith's separate state and federal
5sentences at his resentencing hearing on August 30, 2022, and imposed the sentence
6he now challenges. As discussed above, in Smith I we rejected the claim that the
7district court misunderstood the length of his state sentence or its authority to impose
8concurrent sentences. See Smith I at *1-*2 (see also Resentencing Tr. 20, 22-24). And
9the issue of the application of state credits to his federal sentence is within the
10exclusive authority of the BOP. See United States v. Wilson, 503 U.S. 329, 334-35 (1992).
11In sum, "[i]t is clearly established in this Circuit that [i]t is the oral
12sentence which constitutes the judgment of the court, and which is authority for the
13execution of the court's sentence. The written commitment order is mere evidence of such
14authority." United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995) (internal quotation
15marks omitted (emphases ours)); see, e.g., Thomas, 299 F.3d at 152; United States v.
16DeMartino, 112 F.3d at 78-79; United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974).
17Correctly writing what sentence was pronounced orally is a task that is ministerial.
18Putting the original sentence in writing is not the imposition of a "new sentence"
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1(Smith brief on appeal at 29). The defendant has no right to be present for the
2ministerial correction of the written judgment.
3
4CONCLUSION
5We have considered all of Smith's arguments on these appeals and have
6found them to be without merit. The October 9, 2024 judgment of the district court
7and the order withdrawing the writ for Smith to be produced for resentencing are
8affirmed.
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