06-5490 | Omnilex

Testo completo

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: October 22, 2008
Final briefs submitted
October 29, 2008
Decided: February 19, 2009)

Docket No. 06-5490-cr

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UNITED STATES OF AMERICA,
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Appellee,
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\- V. -
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SEAN CARR,
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Before: KEARSE, SACK, and KATZMANN, Circuit Judges.

Defendant-Appellant.

Appeal from an amended judgment of the United States
District Court for the Southern District of New York, Thomas P.
Griesa, Judge, who resentenced defendant to 40 years' imprisonment
after a remand from this Court pursuant to United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005) .

Affirmed; remanded for clerical correction of judgment.

JESSICA ROTH, Assistant United States Attorney,
New York, New York (Michael J. Garcia,
United States Attorney for the Southern
District of New York, Helen V. Cantwell,
Celeste L. Koeleveld, Assistant United
States Attorneys, New York, New York, on
the brief) , for Appellee.

TINA SCHNEIDER, Portland, Maine, for Defendant-
Appellant.

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KEARSE, Circuit Judge:

This case returns to us on the appeal of defendant Sean
Carr from an amended judgment of the United States District Court
for the Southern District of New York, Thomas P. Griesa, Judge,
resentencing him after a decision of this Court, United States v.
Carr, 424 F.3d 213 (2d Cir. 2005) ("Carr I"), cert. denied, 546
U.S. 1221 (2006), which upheld Carr's convictions and the
district court's various calculations under the 2002 version of
the Sentencing Guidelines ("Guidelines") and remanded to the
district court pursuant to United States v. Crosby, 397 F.3d 103
(2d Cir. 2005) ("Crosby"), cert. denied, 549 U.S. 915 (2006), for
consideration of resentencing in light of the ruling in United
States v. Booker, 543 U.S. 220, 245 (2005), that application of
the Guidelines is not mandatory. Carr was convicted, following a
jury trial, on one count of participating in a racketeering
enterprise, in violation of 18 U.S.C. § 1962 (c) (Count 1) ; one

count of racketeering conspiracy, in violation of id. § 1962 (d)
(Count 2) ; one count of conspiracy to distribute cocaine base (or
"crack"), in violation of 21 U.S.C. § 846 (Count 3) ; one count of
possession with intent to distribute cocaine base, in violation
of id. §§ 812, 841 (a) (1), and 841 (b) (1) (C) (Count 5); and one
count of using and carrying a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924 (c)
(Count 4). Carr was originally sentenced principally to life
imprisonment. On the Crosby remand, the court resentenced Carr
principally to 40 years' imprisonment, comprising two 35-year

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terms for Counts 1 and 2 (the racketeering (or "RICO") counts) to
be served concurrently; two 20-year terms for Counts 3 and 5 (the
narcotics counts), to be served concurrently with each other and
with the terms imposed for the racketeering counts; and a five-
year term for Count 4, the firearm count, to be served
consecutively to the 35-year terms imposed for the racketeering
counts; his 40-year total prison term was to be followed by a
five-year period of supervised release.

On this appeal, Carr asks this Court principally (1) to
revisit the Carr I decisions that affirmed his conviction and
upheld the district court's Guidelines calculations, arguing that
the law-of-the-case doctrine should not be applied where the
district court imposes a new sentence following a Crosby remand,
and (2) to vacate his sentence on the ground that a 40-year term
of imprisonment is unreasonable. In addition, Carr urges us to
remand for further resentencing in light of Gall v. United States,
128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct.
558 (2007) . For the reasons that follow, we reject all of Carr's
arguments in support of this appeal and affirm his new sentence;
we remand, however, for correction of the amended judgment to
reflect accurately the sentence imposed.

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The present prosecution centered on the operation of a
street gang called Sex Money and Murder ( "SMM") that sold
narcotics in the Soundview section of the Bronx, New York. The
trial evidence leading to Carr's convictions on the five counts
listed above included videotapes, an audiotape, and testimony from
former SMM members who were cooperating with the government. The
evidence was summarized in Carr I, 424 F.3d at 217-18, familiarity
with which is assumed.

# A. The Trial and Carr's First Appeal

Briefly, the evidence at trial showed that Carr was a
member of the SMM narcotics distribution enterprise.
Carr
himself, though denying that he was a member of SMM, testified
that he had been a drug dealer nearly all of his adult life and
had sold crack all over the Soundview area. As to his membership
in SMM, the government introduced an audiotape of an SMM meeting
at which Carr was present, and former SMM members "testified as to
Carr's participation in crack sales and robberies, acts of
intimidation, and other acts of violence," Carr I, 424 F.3d
20 at 217.

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With respect to the RICO counts, three predicate acts of
racketeering activity were alleged: (1) the 1994 murder of one
Tony Morton, (2) a 1996 armed robbery to which Carr had pleaded
guilty in state court, and (3) narcotics conspiracy. The evidence

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as to the murder was that Morton, who was unarmed, had been
dragged from his automobile by armed SMM members other than Carr;
that while Morton was being physically restrained, Carr went up to
Morton and, from inches away, shot him in the neck; and that while
Morton then lay on the ground, Carr shot him in the head. (See
Trial Transcript 150, 159, 282-83, 286, 374-75.) Morton's wounds
were fatal.

The jury found that Carr had committed all three of the
alleged acts of racketeering activity, and it found him guilty on
all of the counts against him.

The Guidelines applicable to racketeering offenses
provided that the base offense level should be the greater of 19
or "the offense level applicable to the underlying racketeering
activity, " Guidelines § 2E1.1, and that "[i]f the underlying
conduct violates state law, the offense level corresponding to the
most analogous federal offense is to be used, " id. Application
Note 2. The district court concluded that Carr's base offense
level was 43 as prescribed by Guidelines § 2A1.1 ("First Degree
Murder") because the murder of Morton, a racketeering act that the
jury found proven, was conduct that the court concluded was most
analogous to the federal offense of first-degree murder, see 18
U.S.C. § 1111 (a) ("Murder is the unlawful killing of a human being
with malice aforethought. Every murder perpetrated by . . . any
kind of willful, deliberate, malicious, and premeditated
killing
is murder in the first degree. "). For an offense
level of 43, the Guidelines recommended life imprisonment. The

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district court -- stating that " [i]f the murder were not in the
picture the sentence would be somewhere between 20 and 30 years" --
concluded,

based on the jury's verdict and their specific
findings, it is my duty to impose a sentence of life
imprisonment on Count One and on Count Two.

(Transcript of Original Sentencing, January 14, 2004 ("Original
S.Tr. "), at 16, 17.) Accordingly, Carr was sentenced principally
to life imprisonment for the racketeering counts, with shorter
sentences imposed for the narcotics counts to be served
concurrently with the sentences on the racketeering counts, and a
five-year term for Count 4, the firearm count, to be served
consecutively to the life imprisonment terms imposed for the
racketeering counts, see 18 U.S.C. § 924 (c) (1) (D) (ii)
("Notwithstanding any other provision of law
no term of

imprisonment imposed on a person under this subsection shall run
concurrently with any other term of imprisonment imposed on the
person . . . . ") .

Carr appealed, challenging both his conviction and his
sentence. As to his conviction, Carr contended principally that
certain of the trial court's instructions to the jury were
erroneous and that the government, in summation, had improperly
vouched for the credibility of its witnesses. As to his sentence,
Carr contended, inter alia, that because the indictment alleged
that the killing of Morton constituted the state-law crime of
second-degree murder, the district court should not have
calculated Carr's offense level using Guidelines § 2A1.1, which

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applies to the federal crime of first-degree murder and prescribed
an offense level of 43, but should instead have used Guidelines
§ 2A1.2, which governs the federal crime of second-degree murder
and prescribed an offense level of 33. He also challenged the
district court's Guidelines enhancements based on drug quantity,
brandishing of a firearm, and criminal history.

While Carr's appeal was pending, the Supreme Court decided
Booker, holding that the Guidelines are advisory rather than
mandatory. Accordingly, we concluded that a remand pursuant to
our post-Booker decision in Crosby was required in order to permit
the district court to determine whether it would have imposed a
nontrivially different sentence on Carr if it had known that the
Guidelines are merely advisory. Prior to remanding, however, we
considered and rejected Carr's challenges to his conviction, see
Carr I, 424 F.3d at 218-30, and his challenges to the district
court's Guidelines calculations, see id. at 230-31. In rejecting
Carr's "conten [tion] that the district court erred in applying the
base offense level for the federal offense of first degree
murder, " id., we stated that

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as we made clear in considering a virtually identical
challenge in United States v. Minicone, 960 F.2d 1099
(2d Cir. ), cert. denied, 503 U.S. 950, 112 S.Ct.
1511, 117 L.Ed.2d 648 (1992), "the district court did
not err in concluding that the most analogous federal
offense [to the New York offense of second degree
murder] was first degree murder under [18 U.S.C.]
§ 1111," id. at 1110. " [T]he absence of reference
to premeditation or malice aforethought [in the state
law] does not mean that federal first degree murder

is not States

the v.

most Diaz,

analogous 176

F.3d

federal 52, 123

(2d

offense." Cir.),

United cert.

denied

sub

nom.

Rivera v.

United

States,

528

U.S.

875,

120

S.Ct.

181,

145

L.Ed.2d

153

(1999).

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therefore conclude that Carr's argument in this
regard is without merit.

Carr I, 424 F.3d at 231; see also United States v. Diaz, 176 F.3d
52, 123 (2d Cir.) ("Diaz") (noting that there was "no error, much
less clear error, in the district court's conclusion that federal
first degree murder was the most analogous federal offense" even
though there was no reference to "premeditation or malice
aforethought" in the state statute), cert. denied, 528 U.S. 875
(1999) .

# B. The Proceedings on Remand

On remand, both sides made written submissions to the
district court. The government pressed for adherence to the
sentence of life imprisonment; Carr urged that his prison term be
only 30 years. The court held two hearings in order to determine
whether to resentence Carr and, if so, to determine what prison
term would be appropriate. At the hearings, most of the
discussion as to Carr's offenses centered on the circumstances of
the Morton murder, which would most impact his sentence on the
RICO counts. At the first hearing, the court noted that under New
York law, "this would be a second degree murder" and that such a
murder is by definition intentional, though not premeditated
(Hearing Transcript, August 25, 2006 ("August 2006 Hearing
Transcript" or "Aug. Tr. "), at 20.). The court agreed with the
government that the Guidelines offense level for the federal
offense of first-degree murder was applicable (see id. at 20-21) ;
the court stated that it was "not really terribly concerned about

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what [degree] the state law would regard [Morton's murder] as" ;
rather, it was concerned with "the degree of [Carr's]
culpability" (id. at 21) .

The court announced that it would resentence Carr and that
the only remaining issue was what the new sentence should be, an
issue that the parties should address in additional submissions.
(See id. at 26-27.) The court pointed out that

[t]he degree of culpability is important. Under
the guidelines, we almost forgot that, but under the
statute that is applicable and under any common sense
view of things, the degree of culpability is
important, and this is not something that is listed
in some numerical list in the guidelines. And both
sides should give serious thought to this. It is
important.

I do not understand, even a mitigating factor in
this shooting, even if Mr. Morton drove by and was
suspected in being in some hostile group, by the time
of the shooting, I believe, and you can consider the
evidence in the record and maybe what I'm saying is
not completely accurate, . . . but I believe, subject
to correction, that Mr. Morton was no longer a menace
to anyone, even if he possibl [y] was before he had
been pulled out of the car.

So the question before me is whether the
shooting of Mr. Morton was simply an act of sheer
cruelty, even if it was impulsive and on the spot,
someone who has a gun in the situation of Mr. Carr
here, had the opportunity to decide whether to shoot
or not to shoot, and he decided to shoot under
circumstances that are quite impossible for me to
understand in any rational way, except that this was
perhaps what I said.

At the sentencing hearing some three months thereafter,
the court again focused principally on the prison term to be
imposed for Carr's RICO offenses. It stated, inter alia, as
follows :

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[T]he sentence has been considered in view of the
current state of the law. The guidelines are now
advisory and the court can apply the guidelines or
take a different course if there's a reasonable
ground [] to do so. The court is also obliged to give
specific attention to the factors listed in 18 United
States Code Section 3553 (a). There has been some
debate about exactly what guideline applies to the
RICO counts in which the charge of murder is
contained but that debate has been settled and the
. . level is a level 43 and the guidelines range is
simply life.

There are other counts involving narcotics and
the weapons but the crucial thing here for this
sentence is what the sentence will be on the two RICO
counts, that's Counts 1 and 2, and the sentence that
was imposed before was a life sentence on each of
those counts.

The defense has recommended that there be a
substantial sentence but a definite term instead of
life, a definite term of years, and the
recommendation was 30 years. The suggestion was to
use level 42 of the guidelines. And the range there
would be 360 months to life or 30 years to life. And
if that were done, the court could follow that
guideline range and impose a sentence of 30 years.

(Sentencing Transcript, November 15, 2006 ("S.Tr. "), at 17-18.)

The court then reviewed the trial evidence as to the
killing of Morton. It stated that after other SMM members had
pulled Morton from his car and an SMM member was talking to him at
the trunk of the car, Carr

walks . . . to the back of the car. He shoots Tony
Morton once in the head. Tony Morton falls down.
And [Carr] shoots Tony Morton again in the neck while
Tony Morton is down.

There's conversation within the gang afterwards,
and the other gang members were convinced that this
was an unnecessary shooting, had nothing to do with
any need to protect or defend the Sex, Money and
Murder people. Exactly how it appeared to Sean Carr,
I really don't know. I will give him a little of a
benefit of the doubt that he may have thought there
was still some menace. But the others in the gang

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really didn't think so. And he showed no remorse at
the time at all.

(Id. at 19-20.)

The court determined that, in light of the sentencing
factors set out in 18 U.S.C. § 3553 (a), the appropriate total
prison term for Carr's offenses was 40 years:

Mr. Carr was 24 years old at the time of this
murder. He is about 34 now. He's been in prison
about five years. I believe that there can be a
sentence which justly and fairly takes into account
the gravity of the killing that Mr. Carr perpetrated.
I think there could be a sentence which protects
society sufficiently, and I'm now referring to the
factors in Section 3553, although I might not go down
them doggedly, each one, but I certainly have them in
mind, and the principal one is the seriousness of the
offense and to have an appropriate punishment of that
offense and also protect society from any occurrence
of criminal behavior by Mr. Carr. Those are the two
main factors -- also to be a deterrent to other
criminal activity because that gang apparently still
goes its way up there. And a serious punishment is
necessary for the protection of the community and the
deterrent effect on -- that we hope that criminal
sentences have.

I'm sure that Mr. Carr and his family came in
hoping that I could accept the recommendation of his
lawyer and make the sentence 30 years. . . . I do
not think that that is sufficient. . . .
[T] he
problem is that this was a crime[] that . . .
involve [d] killing an innocent person. It involved
firing a shot into his head and firing another shot
into his neck when he was down. That is very
serious. What I have decided to do -- and I know this
is not the degree of change that he hoped for, but I
am imposing a sentence of 40 years in prison. I feel
that I cannot do less and be fair to the community
and -- there is a community out there that we have to
consider. So I'm imposing a sentence of 40 years in
prison

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as follows :

(S.Tr. 21-22.) The 40-year prison term was ultimately constructed

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Counts 1 and 2, 35 years. Those are to be
served concurrently.

Count 3, 20 years.

Count 5, 20 years.

All those sentences are to be served
concurrently.

Count 4 is 5 years to run consecutively to all
the other counts.

And that means a total of 40.

This appeal followed.

# II. DISCUSSION

On this appeal, Carr principally challenges his sentence,
(1) arguing chiefly, now as he did in Carr I, that the district
court erred in calculating his Guidelines offense level by
reference to the guideline for the federal offense of first-degree
murder, and (2) contending that the 40-year prison term imposed on
him is unreasonable. The government contends that Carr's
challenges to the calculation of the Guidelines-recommended range
of imprisonment, having been rejected by this Court in Carr I, are
barred by the law of the case; and it contends that the sentence
imposed is reasonable.

Carr also suggests that his conviction should be
overturned because of certain of the court's instructions to the
jury and statements by the government in summation, contentions
that were also rejected in Carr I. Carr appears to acknowledge

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that his renewal of the challenges to his conviction is barred by
the law-of-the-case doctrine but states that he renews them here
in order to "preserv[e] these issues for presentation in a
Petition for Writ of Certiorari" (Carr brief on appeal at 13). We
agree that these challenges are foreclosed by the law-of-the-case
doctrine and we do not address them. We reject Carr's challenges
to his sentence for the reasons that follow.

A. Application of the Law-of-the-Case Doctrine to Carr's
Sentencing Challenges

The law-of-the-case doctrine has two facets. First, when
a court has ruled on an issue, "that decision should generally be
adhered to by that court in subsequent stages in the same case."
United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)
("Quintieri") (internal quotation marks omitted), cert. denied,
539 U.S. 902 (2003) ; see, e.g., United States v. Williams, 475
F.3d 468, 475 (2d Cir. 2007) ( "Williams"), cert. denied, 128 S.
Ct. 881 (2008) ; United States v. Minicone, 26 F.3d 297, 300 (2d
Cir.) ("Minicone"), cert. denied, 513 U.S. 940 (1994); United
States v. Fernandez, 506 F.2d 1200, 1203 (2d Cir. 1974). Second,
when the court of appeals has ruled on an issue and has remanded
the case to the district court, the district court on remand is
required to follow that ruling. See, e.g., Quintieri, 306 F.3d at
1225; Minicone, 26 F.3d at 300. Both facets of the law-of-the-
case doctrine are driven by considerations of fairness to the
parties, judicial economy, and the societal interest in finality.
See generally County of Suffolk v. Stone & Webster Engineering

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Corp., 106 F.3d 1112, 1117 (2d Cir. 1997) ; United States v.
Stanley, 54 F.3d 103, 107 (2d Cir.), cert. denied, 516 U.S. 891
(1995) .

A court's reconsideration of its own earlier decision in a
case may, however, be justified in compelling circumstances,
consisting principally of (1) an intervening change in controlling
law, (2) new evidence, or (3) the need to correct a clear error of
8 law or to prevent manifest injustice. See, e.q., Quintieri, 306
F.3d at 1230; Minicone, 26 F.3d at 300; United States v.
Fernandez, 506 F.2d at 1203-04 & n.7. For example, a defendant
who has obtained a remand on his first appeal will not be barred
from raising sentencing issues if they "arise[] as a result of
events that occur [red] after the original sentence, " Quintieri,
306 F.3d at 1230.

Applying these principles in the context of an appeal
following a Crosby remand on which the district court has
concluded that it will not resentence the defendant, we have held
that the parties are free to challenge the procedures used by the
district court on remand in reaching its conclusion and are free
to challenge the reasonableness of the sentence originally
imposed. See, e.g., Williams, 475 F.3d at 476. But "challenges
to rulings made by the sentencing court that were adjudicated by
this Court -- or that could have been adjudicated by us had the
defendant made them -- during the initial appeal that led to the
Crosby remand" are ordinarily barred. Id. at 475; see, e.g.,

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1 United States v. Negron, 524 F.3d 358, 360 (2d Cir.), cert.
2
denied, 129 S. Ct. 252 (2008) .
3
In other words, when we have reached the Guidelines
issues -- or other sentencing issues -- raised by
defendants in their initial appeal, further
challenges to our resolution of these issues after a
district court has declined to resentence pursuant to
Crosby will be foreclosed by the law of the case.
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Williams, 475 F.3d at 476.
10
In addition, we have applied the law-of-the-case doctrine
to foreclose renewal of challenges to jury instructions and
Guidelines calculations that had been adjudicated on the
defendant's first appeal where, on the Crosby remand, the district
court conducted sentencing proceedings anew but reimposed the same
sentence. See United States v. Frias, 521 F.3d 229, 231, 235 (2d
Cir.), cert. denied, 129 S. Ct. 289 (2008). However, we have not
heretofore determined "what effect the law of the case doctrine
might have on a defendant who is resentenced pursuant to Crosby"
and given a different sentence. Williams, 475 F.3d at 476 n.4.
Carr argues that a defendant who is given a different sentence
following a Crosby remand is entitled to challenge all components
of the sentencing decision, arguing that the sentencing
proceedings conducted on such a remand are de novo.
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If this Court in the prior appeal declined to adjudicate
the sentencing challenges before remanding, see, e.g., United
States v. Irving, 452 F.3d 110, 126 (2d Cir. 2006), we agree that
the parties are entitled to raise any properly preserved
challenges to the sentence -- whether or not the district court on
remand imposed a new sentence. But to the extent that this Court

has, on the prior appeal, adjudicated challenges to the district
court's Guidelines calculations, we disagree. Although a
district court, in the wake of Booker and its progeny, is not
required to impose the now-advisory Guidelines-recommended
sentence, the court is nonetheless normally required to calculate
the sentencing range that the Guidelines recommend. See, e. g.,
Gall, 128 S. Ct. at 596 ("a district court should begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range" (emphasis added) ) ; Crosby, 397 F.3d at 111 ("In
☒
order to fulfill this statutory duty to 'consider' the Guidelines,
a sentencing judge will normally have to determine the applicable
Guidelines range. ") ; id. at 115 ("a sentencing judge would commit
a statutory error in violation of section 3553 (a) if the judge
failed to 'consider' the applicable Guidelines range (or arguably
applicable ranges) ") . And this Court, on reviewing a sentence, is
required to determine whether the district court's calculations
under the Guidelines are correct: " [T]he appellate court, " which
is to review the sentence under an abuse-of-discretion standard,
"must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range
11
Gall, 128

S. Ct. at 597 (emphasis added) . "The abuse-of-discretion standard
incorporates de novo review of questions of law (including
interpretation of the Guidelines)
11
United States v.

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of a sentencing guideline is a question of law, " United States v.

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Vasquez, 389 F.3d 65, 68 (2d Cir. 2004), when a party contends in
the initial appeal that Guidelines calculations made by the
district court were erroneous, this Court will usually, in the
interests of judicial efficiency and economy, address those
contentions prior to remanding, in order that the district court
either have the assurance that its prior calculations were correct
or be sufficiently informed so that it will not repeat an error.
See, e.g., United States v. Gonzalez, 407 F.3d 118, 124 (2d Cir.
2005) (determining a Guidelines application issue previously
decided by the district court, because that issue might be raised
again in the district court in the course of the Crosby remand) .
Thus, in Carr I itself, we addressed Carr's challenge to the
calculation of his offense level precisely because

[t]his [wals a question the district court w[ould]
again be required to decide on remand because, post-
Booker, it must still consider the appropriate
Guidelines sentence along with the other section
3553 (a) factors in arriving at the correct sentence.

424 F.3d at 230.

Accordingly, given (a) that the sentencing court,
regardless of its ultimate sentence, must first calculate the
Guidelines-recommended sentence, (b) that interpretations of
guidelines are questions of law, and (c) that such questions are
addressed by this Court prior to remand in the interests of
judicial efficiency and economy, we conclude that, in the absence
of compelling circumstances such as those mentioned above that
could warrant exceptions to application of the law-of-the-case
doctrine, the doctrine bars the district court on remand from

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revisiting issues that were adjudicated on the prior appeal, and
it forecloses the parties from renewing their previously
adjudicated challenges on a subsequent appeal, even if the
district court has imposed a new sentence on the Crosby remand.

In a letter brief submitted subsequent to oral argument of
this appeal -- at which this Court solicited briefing with respect
to the effects, if any, of Gall and Kimbrough on this appeal -- Carr
in effect contends that Kimbrough represents a change in the law
that should prevent application of the law-of-the-case doctrine to
his renewed challenge to the use of the first-degree murder
guideline to calculate his offense level (see Carr letter brief
dated October 29, 2008 ("Carr supplemental brief on appeal") at
1-2, 4-7) . Carr argues that in light of Kimbrough, the district
court has "authority to fashion a sentence based in part on its
disagreement with this Court's interpretation of a Guideline. "
(Id. at 1.) Elaborating, he states as follows:

At issue in this case is the district court's
authority to deviate from the Guidelines because of
disagreements with this Court's interpretation of
those Guidelines. In the original appeal of
conviction and sentence that lead [sic] to the Crosby
remand here, Carr challenged the use of the first
degree murder guideline in calculating his sentence.
This Court held that the most analogous federal
offense to New York second degree murder is first
degree murder under 18 U.S.C. sec. 1111. United
States v. Carr, 424 F.3d 213, 231 (2d Cir. 2005),
citing United States v. Minicone, 960 F.2d 1099, 1110
(2d Cir. 1992) .

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On resentencing, Carr again challenged the use
of the first degree murder guideline. . . . The
district court did not revisit the issue, because the
"debate about exactly what guideline applies to the
RICO counts in which the charge of murder is
contained . . . has been settled and the guideline

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range is for - the level is a level 43 and the
guideline range is simply life." [S.Tr. 17.]

However, the district court's comments and
questions at the resentencing hearing (which took
place over two days) show that the court was
concerned that federal first degree murder was not
the most analogous federal offense in the
circumstances of this case.

(Carr supplemental brief on appeal at 2-3 (footnote omitted)
(emphasis in original) .) Pointing out that in imposing sentence
originally "in 2004, the court stated 'because of the guideline
calculations, based on the jury's verdict and their specific
findings, it is my duty to impose a sentence of life imprisonment
on Count One and on Count Two'" (id. at 3 n. 1 (quoting Original
S.Tr. 17) ), Carr states that the district court on remand

inquired extensively and repeatedly about Carr's
culpability for the murder. [Aug. Tr. ] at 16 ( "Let's
talk about the question of culpability. ) ; [Aug. Tr. ]
at 16-17 (court notes that this murder was not
premeditated) ; [Aug. Tr.] at 21 (court finds that
killing was "on the spot") ; [Aug. Tr. ] at 27 (" [T]he
degree of culpability is important, and this is not
something that is listed in some numerical list in
the guidelines. ") ; [S.Tr. 18] ("I have been very
concerned to assess the degree of culpability in the
shooting. ") .

The court's inquiries and statements at the
sentencing hearing suggest that it disagreed with
this Court's interpretation of the Guidelines, but
felt itself bound -- as it was at that point by this
Court's jurisprudence -- to use the first degree
murder guideline as its baseline for determining
sentence. However, in light of Kimbrough,
disagreement with the Commission's policy judgment
(as interpreted by this Court in Minicone and
Carr[ I]) is a permissible reason to deviate from the
guideline.

(Carr supplemental brief on appeal at 3-4 (emphasis in original) .)
In support of this argument, Carr cites United States v. Boardman,

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528 F.3d 86 (1st Cir. 2008) ( "Boardman"), stating that " [t]he
First Circuit . . . held that Kimbrough allows district judges to
deviate from the Guidelines on the basis of categorical policy
disagreements, including disagreements with the Court's
interpretation of those Guidelines." (Carr supplemental brief on
appeal at 4 (emphases added) . )

We disagree with Carr's interpretations of both Kimbrough
and Boardman. Preliminarily, however, we note our disagreement
as well with his description of the district court as
"disagree [ing] with this Court's interpretation of [the pertinent]
Guidelines" (Carr supplemental brief on appeal at 2, 4), and as
being "concerned that federal first degree murder was not the most
analogous federal offense in the circumstances of this case" (id.
at 3 (emphasis in original) ). Although the district court
indicated -- entirely properly -- that the propriety of its
application of the federal first-degree murder guideline was no
longer in question, it did not express any disagreement with the
appropriateness of that guideline as the analog for Carr's murder
of Morton. Indeed, that was the guideline originally applied by
the district court; in Carr I, we held that the district court's
ruling was correct. The transcripts of the hearings held on
remand do not indicate that the district court disagreed with this
Court's jurisprudence; rather, they reveal clearly that the
district court was concerned simply with assessing the degree of
Carr's culpability for a callous murder that seemed senseless even
to his fellow gang members.

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Even had the district court disagreed, however, with this
Court's jurisprudence -- reflected in Carr I, Minicone, and Diaz -- as
to the propriety of using the federal first-degree murder
guideline as the most appropriate analog for a RICO-related murder
such as that committed here, we reject Carr's contention that the
district court would have been free to disregard that
jurisprudence after Kimbrough. Kimbrough, which concerned the
Guidelines recommendations for severe sentencing of defendants
convicted of offenses involving cocaine in the form of crack, as
contrasted with cocaine in powder form, held that "under Booker,
the cocaine Guidelines, like all other Guidelines, are advisory
only, " 128 S. Ct. at 564, and that "a district court may consider
arguments that 'the Guidelines sentence itself fails properly to
reflect § 3553 (a) considerations, '" id. at 570 (quoting Rita v.
United States, 127 S. Ct. 2456, 2465 (2007) ) . The Kimbrough Court
discussed the fact that in adopting Guidelines provisions which,
as they then stood, equated one gram of crack with 100 grams of
powder cocaine, the Sentencing Commission had looked to certain
statutory mandatory minimum prison terms, rather than to empirical
evidence as was its general practice, see id. at 567, and that
numerous reports of the Commission revealed that the 100 to 1
ratio did not reflect the view of the Commission itself as to
appropriate proportionality, see id. at 568. The Kimbrough Court
held that " [g]iven all this, it would not be an abuse of
discretion for a district court to conclude when sentencing a
particular defendant that the crack/powder disparity yields a

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sentence 'greater than necessary' to achieve § 3553 (a) 's purposes,
even in a mine-run case." Id. at 575. See also id. (questioning,
but not deciding, whether "closer review may be in order when the
sentencing judge varies from the Guidelines based solely on the
judge's view that the Guidelines range fails properly to reflect
§ 3553 (a) considerations even in a mine-run case" as to which the
Commission formulated the Guidelines range based on its
institutional strengths, taking into account "empirical data and
national experience" (internal quotation marks omitted) ) .

Thus, Kimbrough stands for the proposition that the
sentencing court has discretion to deviate from the Guidelines-
recommended range based on the court's disagreement with the
policy judgments evinced in a particular guideline. Kimbrough did
not suggest that the district court may simply disregard the
relevant guidelines; to the contrary, the Kimbrough Court noted
that, " [a]s explained in Rita and Gall, district courts must treat
the Guidelines as the 'starting point and the initial benchmark, '"
128 S. Ct. at 574 (quoting Gall, 128 S. Ct. at 596). And we see
nothing in Kimbrough that suggests, as Carr would have it, that a
district court is free to disregard its circuit court's
interpretation of a particular guideline, which is a ruling on a
question of law.

Nor do we interpret the First Circuit's decision in United
States v. Boardman, 528 F.3d 86, as authorizing its district
courts, in light of Kimbrough, to "deviate from the Guidelines on
the basis of categorical policy disagreements
with the

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Court [ of Appeals'] interpretation of those Guidelines" (Carr
supplemental brief on appeal at 4). The Boardman court, in
addressing a Guidelines calculation for burglary of a
nonresidential building, noted the interpretation it had given the
pertinent guideline in a prior case ( "Fiore") and observed that
the sentencing court in Boardman had indicated that it would have
imposed a lower sentence if it had had discretion to do so. See
Boardman, 528 F.3d at 86-87. The First Circuit in Boardman
remanded to the district court, reasoning that a sentencing court
"has broader freedom tha [n] it did before Kimbrough" to deviate
from the Guidelines based on the sentencing judge's "disagreement
with the Commission's policy judgment (as expressed in the
guideline as we interpreted it in Fiore)." Id. at 87 (emphasis
added) . But nothing in Boardman stated that the district court
was free to deviate from the Court of Appeals' interpretation of
the relevant guideline itself. Indeed, the First Circuit preceded
its discussion of the effect of Kimbrough by pointing out that
"the district court [wa]s still required to calculate and consider
the guidelines range, " and that " [t]he district court properly
recognized that it was bound by Fiore to treat the guideline as we
had interpreted it, " id.

Finally, Carr argues that the law-of-the-case doctrine
should not be applied to his sentencing challenges because of a
change in circumstances, to wit, that his "first sentencing" had
"t [aken] place under the mandatory guidelines scheme." (Carr
brief on appeal at 12.) He concedes, however, his convictions

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having been upheld, that "the constellation of offenses for which
he was sentenced remained the same."
(Id. (internal quotation
marks omitted) .) And it is indisputable that the change
consisting of the Guidelines' being advisory rather than mandatory
was dealt with by the remand itself. The remand instructed the
district court to resentence Carr if it determined that it would
have imposed a nontrivially different sentence had it known the
Guidelines were not mandatory; and on remand the district court
acknowledged its understanding that " [t]he guidelines are now
advisory and the court can apply the guidelines or take a
different course if there's a reasonable ground [] to do so" (S.Tr.
17). We see no change in circumstances that would warrant
nonapplication of the law-of-the-case doctrine here. Certainly
there was no change in the circumstances surrounding the Morton
murder.

In sum, we conclude that there was no relevant change in
the law or the circumstances, nor any interest of justice that
would indicate that the law-of-the-case doctrine should not be
applied to foreclose Carr's present challenges to the Guidelines
calculations that were approved in Carr I. We accordingly decline
to revisit those issues.

# B. The Reasonableness of the Sentence Imposed

In reviewing a sentence post-Booker, the court of appeals
is required to determine whether the sentence is "reasonable. "
Gall, 128 S. Ct. at 594 (internal quotation marks omitted) ;

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Booker, 543 U.S. at 261-62. As adverted to in the preceding
section, in making that determination, we use "the familiar abuse-
of-discretion standard of review," Gall, 128 S. Ct. at 594,
regardless of whether the sentence was within or outside the
Guidelines-recommended range, see id. at 591; United States v.
Jones, 531 F.3d 163, 170 (2d Cir. 2008). This standard of review
applies as well to our review of a sentence imposed after a Crosby
remand. See Williams, 475 F.3d at 474.

Reasonableness review has both a procedural and a
substantive component. See, e.q., United States v. Irving, --
F.3d -- , 2009 WL 194386 (2d Cir. Jan. 28, 2009), at *5; United
States v. Jones, 531 F. 3d at 170; United States v. Canova, 485
F.3d 674, 679 (2d Cir. 2007). Review for procedural
reasonableness requires us to

ensure that the district court committed no
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, 128 S. Ct. at 597. In determining whether the district
court has considered the appropriate factors, we do not require
"robotic incantations" by the sentencing judge. United States v.
Brown, 514 F.3d 256, 270 (2d Cir. 2008); United States v.
Fernandez, 443 F.3d 19, 30 (2d Cir.), cert. denied, 549 U.S. 882
(2006) ; Crosby, 397 F.3d at 113. In the absence of record
evidence suggesting otherwise, we presume that the district court
has faithfully discharged its duty to consider the § 3553 (a)

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factors. See, e.g., United States v. Brown, 514 F.3d at 264;
United States v. Fernandez, 443 F.3d at 30. In reviewing a
sentence for substantive reasonableness, we are guided by the
§ 3553 (a) factors that the sentencing court is required to apply.
See, e.g., Booker, 543 U.S. at 261; Crosby, 397 F.3d at 114-15 &
n.13.

In the present case, Carr contends that his sentence is
unreasonable, arguing principally that the district court
"unjustifiably relied on certain sec. 3553 factors, while not
giving due weight to others, " and that it committed an error of
law in

characteriz [ing] subsection (2) of that statute
(setting forth the goals of sentencing) as "the
principal one." . . . As a matter of law, no single
factor in sec. 3553 (a) is controlling, and no single
factor is "the principal one. "

(Carr brief on appeal at 16 (quoting (S.Tr. 21) .) He also argues
that his new sentence is "greater than necessary to accomplish the
statutory sentencing goals." (Id.)

The record belies these contentions. The statute directs
the sentencing court to "impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection." 18 U.S.C. § 3553 (a) . Other
than concerns for training and treatment, see id.
§ 3553 (a) (2) (D) , which Carr has not suggested have any relevance
whatever here, the sentencing purposes spelled out in paragraph
(2) of § 3553 (a) are

(A) to reflect the seriousness of the offense,

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to promote respect for the law, and to provide just
punishment for the offense;

(B) to afford adequate deterrence to criminal
conduct; [and]

18 U.S.C. § 3553 (a) (2). The district court clearly considered
these factors. The issue that received the most attention from
the court and the parties in this case was the degree of Carr's
culpability in killing Morton, as the court sought to arrive at "a
sentence which justly and fairly takes into account the gravity of
the killing that Mr. Carr perpetrated" (S.Tr. 21) -- an act that the
court found "impossible . . . to understand" except as "an act of
sheer cruelty" (Aug. Tr. 27). But while using the phrases "the
principal one, " or "the two main factors," the court in fact
expressly cited four of the above § 3553 (a) (2) factors, stating
that

the principal one is the seriousness of the offense
and to have an appropriate punishment of that offense
and also protect society from any occurrence of
criminal behavior by Mr. Carr. Those are the two
main factors -- also to be a deterrent to other
criminal activity

(S.Tr. 21 (emphases added) .) And, as set forth in detail in Part
I. B. above, the district court expressly noted its "oblig [ation]
to give specific attention to the factors listed in 18 United
States Code Section 3553 (a) " (S.Tr. 17), and stated "although I
might not go down them doggedly" one by one, "I certainly have
them in mind (id. at 21). Thus, the record does not support

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Carr's contention that the district court ignored any of the
§ 3553 (a) factors.

Nor is there merit in Carr's suggestion that the district
court lost sight of its obligation to impose a sentence no
"greater than necessary to accomplish the statutory sentencing
goals" (Carr brief on appeal at 16). Having mentioned the above
factors (see S. Tr. 21), the court noted that Carr had proposed
that he be given a 30-year prison term, but the court stated "I do
not think that that is sufficient" (id. ) ; it stated, however, that
"a very substantial penalty does not need to be endless" (id. ) ;
and in concluding that Carr's prison term should be 40 years, the
court stated, "I cannot do less and be fair to the community" (id.
at 22). The court plainly followed the statutory mandate to
impose a sentence that it deemed sufficient, but not greater than
necessary, to accomplish the purposes set forth in § 3553 (a) (2) .

In sum, it is abundantly clear in this case that the court
considered the appropriate factors and rendered a thoughtful
judgment that complied with the requirements of § 3553 (a). We see
no basis for concluding that the district court abused its
discretion or that the sentence it imposed is unreasonable.

C. The Request for a Remand With Respect to Sentencing for Crack
Lastly, in his postargument supplemental brief, Carr
argues that this Court should remand to the district court for
resentencing in light of (a) Kimbrough's holding that a sentencing
court has discretion to deviate from the harsh sentences for

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defendants convicted of trafficking in crack as recommended in the
version of the Guidelines applicable to Carr, and (b) amendments
to the crack-related guidelines, adopted subsequent to his
resentencing. We disagree.

Carr's contention that he should be resentenced because of
the harshness of the crack-related guidelines that were applied to
him is subject to plain-error analysis because he made no
challenge to those guidelines on harshness grounds in the district
court. See, e.g., United States v. Regalado, 518 F.3d 143, 147
(2d Cir. 2008) . To receive relief under plain-error analysis, "'a
defendant must show (1) error, (2) that is plain at the time of
appellate review, and (3) that affects substantial rights. Where
these conditions are met, we have the discretion to notice a
forfeited error if (4) it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. '" Id.
(quoting United States v. Quinones, 511 F.3d 289, 316 (2d Cir.
2007), cert. denied, 129 S. Ct. 252 (2008)). Carr cannot meet
this test, for if there was error it did not affect his
substantial rights. He was sentenced to two concurrent terms of
35 years' imprisonment on the RICO counts. His sentences on the
narcotics counts were 20 years, to be served concurrently with the
sentences on the RICO counts. There is no indication in the
record that the district court believed these 20-year sentences
were inappropriate for Carr's admitted dealing in narcotics
throughout virtually his entire adult life. Rather, at the
sentencing hearing, the district court noted that "[t]here are

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other counts involving narcotics and the weapons but the crucial
thing here for this sentence is what the sentence will be on the

two RICO counts
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(S.Tr. 17.) We cannot see that
Kimbrough warrants a remand with respect to Carr's sentence on the
narcotics counts.

As to Carr's contention that he should be resentenced anew
in light of amendments to the Guidelines adopted after his
8 resentencing on the Crosby remand, that contention is not properly
before us. Defendants who seek relief based on Guidelines
amendments "should move for modification of their sentences
pursuant to 18 U.S.C. § 3582 (c) (2) in the district courts. "
United States v. Regalado, 518 F.3d at 151.

## D. Correction of the Amended Judgment

Finally, we note that the amended judgment entered in this
case does not accurately reflect the judgment imposed on Carr at
his sentencing hearing. The written amended judgment states that
the concurrent prison terms imposed for Counts 1 and 2 are 30
years. Yet the sentencing transcript reveals -- and the parties'
briefs on appeal reflect -- that the court orally announced a 40-
year total prison term that included imprisonment for 35 years on
Counts 1 and 2 (see S.Tr. 23, quoted in Part I.B. above) .

" [W]here there is a direct conflict between an unambiguous
oral pronouncement of sentence and the written judgment
the
oral pronouncement, as correctly reported, must control." United
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quotation marks omitted) . See, e.g., United States v. DeMartino,
112 F.3d 75, 78-79 (2d Cir. 1997) ; United States v. Werber, 51
F.3d 342, 347 (2d Cir. 1995); United States v. Pagan, 785 F.2d
378, 380 (2d Cir.), cert. denied, 479 U.S. 1017 (1986); United
States v. Moyles, 724 F.2d 29, 30 (2d Cir. 1983) .

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Accordingly, we remand for entry of a corrected amended
judgment, reflecting the sentence actually imposed.

# CONCLUSION

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We have considered all of Carr's arguments on this appeal
and have found in them no basis for reversal. The amended
judgment, as announced orally, is affirmed. The matter is
remanded for the entry of a corrected written amended judgment to
reflect that Carr has been sentenced to concurrent prison terms of
35 years on Counts 1 and 2.

August Term, 2008 Argued: October 22, 2008 Final briefs submitted October 29, 2008… v. - 13 Sean Carr, 14 15 16

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