In United States v. Derek Armstrong, 18-368, the Second Circuit (Sack and Raggi, with Kaplan by designation) issued a summary order vacating a three-month prison sentence imposed on the defendant by the U.S. District Court for the Eastern District of New York for violating probation by failing to report for random drug testing.  The defendant had previously been sentenced in 2015 to three years’ probation for filing false tax returns and it was his violation of that probation that resulted in the challenged sentence.  On appeal, he argued that his prison sentence was procedurally unreasonable because it was based on an erroneous fact asserted by the government at sentencing: that the defendant had failed to pay any of the back-tax payments ordered by the district court. 

In fact, as the government acknowledged on appeal, the defendant had made at least 14 restitution payments totaling approximately $2000 by the time of sentencing.  Nonetheless, the government argued, that erroneous statement did not significantly affect the district court’s sentence, and was therefore “harmless” error.  The Second Circuit disagreed, noting that the sentencing court did not provide any explanation for the sentence it imposed.  Although courts are not required to recite a specific script to ensure that they are weighing the appropriate factors at sentencing, they must at least provide a sufficient statement of reasons to permit meaningful appellate review.  On this record, the Second Circuit could not determine to what extent the district court had relied on the erroneous statement by the government when it imposed sentence.

The Court therefore vacated the sentenced and remanded for resentencing both to ensure that the sentence was not influenced by the erroneous statement regarding payment of back-taxes and to allow the district court to clarify the reasons for the sentence it imposed. 

This summary order is a useful reminder that appellate review requires a record, and when the Court does not believe that a sufficient record exists, the case will be remanded.  Sometimes this will result in a new sentence, but even when it does not, the appearance of fairness is still enhanced.