United States v. Brown, 935 F.3d 43

Lawrence Brown was convicted of two Hobbs Act robberies (18 U.S.C. § 1951) and two related § 924(c) firearms offenses for brandishing and a subsequent offense requiring a 25‑year consecutive minimum.
At sentencing the PSR calculated a Guidelines range of 70–87 months for the robbery counts; defense requested one‑day sentences on each robbery count because mandatory consecutive § 924(c) terms would produce a severe aggregate sentence.
The district court imposed concurrent 84‑month sentences on the robbery counts and mandatory consecutive 7‑ and 25‑year terms on the § 924(c) counts, totaling 39 years. The court did not state whether it considered the § 924(c) mandatory minimums when setting robbery sentences.
The Second Circuit previously barred consideration of § 924(c) consecutive minimums when sentencing predicate counts in United States v. Chavez, but the Supreme Court in Dean v. United States held district courts may consider such mandatory consecutive sentences.
The panel determined Dean abrogated Chavez, raising uncertainty whether Judge Román knew he had discretion to consider the § 924(c) consequences when sentencing the robbery counts. The case was remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a sentencing court may consider the severity of mandatory consecutive § 924(c) minimums when setting sentences for predicate offenses	United States: Dean allows consideration; no error if court exercises discretion consistent with law	Brown: Court should have imposed minimal robbery sentences in light of harsh mandatory § 924(c) consecutive terms	Dean abrogated Chavez; district courts may consider § 924(c) mandatory consecutive minimums but are not required to do so (discretion to consider)
Appropriate appellate disposition when record is unclear whether the sentencing judge knew of Dean discretion: remand for clarification or for resentencing	United States: (implicitly) clarification may suffice if judge actually understood discretion	Brown: (implicitly) remand for resentencing to ensure correct exercise of discretion and address First Step Act argument	Court opts to remand for resentencing given the unusual circumstances (Chavez had not been disavowed by the Circuit, counsel and Probation did not mention Dean)

Dean v. United States, 137 S. Ct. 1170 (2017) (Supreme Court held sentencing courts may consider mandatory consecutive § 924(c) minimums when sentencing predicate offenses)
United States v. Chavez, 549 F.3d 119 (2d Cir. 2008) (Second Circuit had previously precluded consideration of § 924(c) mandatory consecutive minimums)
United States v. Booker, 543 U.S. 220 (2005) (principle that decisions on direct review apply retroactively to cases on direct appeal)
Griffith v. Kentucky, 479 U.S. 314 (1987) (new rules of constitutional law apply to cases on direct review)
United States v. Preacely, 628 F.3d 72 (2d Cir. 2010) (discussion of when to remand for clarification versus resentencing)
United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994) (procedure for restoring appellate jurisdiction after resentencing)