Roman Bartolo Genao appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson Jr, /,), sentencing him to 46 months in prison upon his plea of guilty to a charge of illegally attempting to reenter the United States after having been deported. He argues that his sentence was procedurally unreasonable because the district court did not correctly calculate the sentencing range recommended by the United States Sentencing Guidelines and to give a sufficient explanation for the sentence imposed. He also argues that his sentence was substantively unreasonable because it was excessive under the circumstances. Because we find merit in Genao’s procedural arguments, we VACATE the sentence and REMAND to the district court for de novo resentencing.
Background
In 2009, Genao, a national of the Dominican Republic and a long-term lawful permanent resident of the United States, was convicted in New York state court of first-degree burglaiy and first-degree robbery. According to the Presentence Investigation Report (“PSR”) prepared by the United States Probation Office in connection with the present case, police reports described the 2009 crime as a home invasion in which Genao “pushed his way into the victim’s home, grabbed her by the hair, placed a knife against her throat, and demanded money,” obtaining $1,200 in cash and a signed check for $4,000 payable to cash, and later “called the victim via telephone, and told her that if she called the police or anyone else, he would kill her family and burn down her home.” PSR ¶ 24. Genao received a six-year prison sentence, and, after completing his term of incarceration in February 2015, was deported and told that he could not return to the United States. Genao attempted to reenter the United States on August 23, 2015 by flying via commercial airline to New York City, but was detained upon arrival. He was indicted for illegal reentry in violation of 8 U.S.C. §§' 1326(a) and (b)(2), and pleaded guilty to the offense on November 19, 2015.
The PSR prepared in connection with Genao’s sentencing did not accurately describe the charges on which he had been convicted in the prior New York case. Although the PSR correctly stated that Genao had been convicted under New York Penal Law § 140.30(3) for first-degree burglary with a dangerous instrument, it incorrectly identified Genao’s robbery conviction as one of second-degree robbery of a motor vehicle under New York Penal Law § 160.10(3), when his actual crime of conviction was first-degree robbery with a dangerous instrument under New York Penal Law § 160.15(3). The precise nature of the conviction was relevant to the calculation of Genao’s Guidelines sentencing range: relying on the incorrect robbery conviction, the PSR calculated that Genao’s base offense level of 8 should be increased by 16 levels on the basis that second-degree robbery un
Defense counsel objected to the 16-point enhancement both orally and in writing, arguing that .the robbery was not a crime of violence because robbery under New York law requires only de minimis use of force. At the sentencing hearing, the sentencing judge responded skeptically, asking, “[H]e put a knife to the throat of a victim, had her deposit a $4,000 check into his account. You say that’s not a crime of violence?” App. 31. Characterizing the application of the enhancement as “an academic issue,” defense counsel reminded the court that under the categorical approach, the sentencing court must “not look at the actual facts but look at the facts that the least culpable person could commit if they were sentenced. to that crime.” App. 31-32. As explained in more detail below, to determine whether a prior offense is a “crime of violence” that requires application of a sentencing enhancement, the sentencing judge is to consider only the necessary elements of the statutory definition of the crime, rather than the facts particular to the defendant’s conduct. See United States v. Reyes,
Discussion
Genao now appeals his prison sentence, which he contends is both procedurally and substantively unreasonable.
I. Procedural Unreasonableness
We turn first to Genao’s procedural unreasonableness claim. A district court commits procedural error “when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence,” United States v. Chu,
A, Statements of Reasons
We begin by noting the importance of an adequate statement of reasons for the selectioii of a particular sentence. Adequate explanation is critical to the discharge of the sentencing court’s responsibility under 18 U.S.C. § 3553(c), which instructs that “[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence” (emphasis added). The sentencing court “must make an individualized assessment based on the facts,presented,” United States v. Williams,
Here, after stating that it would apply the 16-level enhancement, the sentencing court explained only that it had “taken into consideration the factors of 3553(a), oral argument and the submissions, and ... believe[d that] the sentence that [wa]s sufficient but not greater than necessary to meet the aims of the statute” was 46 months’ imprisonment. App. 36. Moreover, the court did not provide any further explanation for the choice of sentence in the written statement of reasons. “Stating no reasons at all ‘plainly’ falls short of the requirement to state reasons that is set forth in § 3553(c), no matter what the required level of ‘specificity1 may be.” United States v. Lewis,
There is no requirement that a judge imposing a sentence provide lengthy or elaborate explanations of the often multiple aggravating and mitigating factors about the offense and the offender, or the precise weight assigned by the court to the various, sometimes competing policy considerations relevant to sentencing. The line between appropriately succinct and inadequately silent may be difficult to draw in particular cases. Here, however, the sentencing court’s sparse and general remarks about the particular sentence are compounded by the absence of an explanation for the legal ruling applying the 16-level enhancement for prior commission of a “crime of violence.” Insofar as any explanation for that ruling can be inferred from the record, it appears to be one that is legally flawed: the court appears to have found that Genao’s crime was a violent one based on the particular facts allegedly underlying his conviction, when the law, as mentioned above and discussed in more detail below, requires the sentencing judge to look only to the necessary elements of the statutory definition of the crime, rather than the particular facts of the defendant’s conduct, in making that judgment. See Reyes,
The absence of an explanation for that ruling is significant because defense counsel argued, both in a written submission and at the sentencing hearing, that the enhancement that elevated Genao’s guideline range from 18-24 months to 46-57 months should not have applied. Nevertheless, the court did not explain why it rejected that argument, nor identify why (or which of) Genao’s prior convictions constituted “crimes of violence.” “Where the defendant or prosecutor presents nonfrivo-lous reasons for imposing a different sentence,” the sentencing court should typically “explain why he has rejected those arguments,” which “provide[s] relevant information to ... the court of appeals.” Rita,
In the absence of such an explanation, we are left to conduct that analysis in the first instance ourselves. Ordinarily, when the sentencing court fails to explain its application of a sentencing enhancement in open court, “the ‘open court’ requirement [of § 3553(c)] may [nevertheless] be satisfied by the district court adopting the PSR in open court. Adopting the PSR in open court puts the defendant on notice of the grounds for the sentence imposed since the defendant usually has either seen his own PSR or is entitled to ask for it.” United States v. Molina,
B. Robbery Conviction as a “Crime of Violence”
As noted above, the PSR incorrectly identified Genao’s prior robbery conviction as second-degree robbery of a motor vehicle under N.Y. Penal Law § 160.10(3).
The absence of correct information concerning Genao’s prior robbery conviction is significant because whether either of his convictions constituted a “crime of violence” for purposes of the Illegal Reentry Guideline provision’s specific offense enhancement was the chief legal issue in dispute during the sentencing hearing. Defense counsel objected to the PSR’s recommended 16-level enhancement for a “crime of violence” based on the robbery conviction, arguing that without that enhancement, Genao’s Guidelines range would drop from 46-57 months to 18-24 months. Genao’s objection was well taken: because Genao in fact had never pleaded guilty to the charge identified in the PSR — second-degree robbery in violation of N.Y. Penal Law § 160.10(3) — that purported robbery conviction could not support the application of the 16-level enhancement.
C. Burglary Conviction as a “Crime of Violence”
Our inquiry does not end there, however. At sentencing, the government argued that whether the robbery conviction qualified as a crime of violence under the categorical approach was “moot” because Genao’s first-degree burglary conviction could also support the enhancement, since “in the sentencing guidelines burglary is also listed as a crime of violence.” App. 35-36. Despite the government’s assurance, however, that issue is not so straightforward. The commentary to the relevant portion of the Guidelines in effect at the time of Genao’s sentence stated that:
For the purposes of subsection (b)(1): ‘Crime of violence’ means any of the following offenses under federal, state, or local law: ... burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
U.S.S.G. § 2L1.2, cmt. n.l(B)(iii) (2015). If the police reports relating to Genao’s conviction are correct, the actual behavior for which he was convicted was the burglary of a dwelling, in the narrowest sense of the word. “In determining whether a prior conviction can serve as a predicate offense for a [sentencing] enhancement,” however, the sentencing judge must apply either the “categorical or modified categorical approach.” United States v. Beardsley,
Under the categorical approach, the sentencing court must “ ‘look only to the statutory definitions’ — i.e., the elements — of a defendant’s prior offenses, and not ‘to the particular facts underlying those convictions.’” Descamps v. United States, — U.S. —,
The analysis required by the categorical approach is important where an aspect of the calculation of a defendant’s Sentencing Guidelines range turns on the single factor of a defendant’s prior criminal' record. Where a particular sentencing enhancement applies simply because the defendant has been convicted of a particular category of crime — here, a “crime of violence” — it is critical that the prior conviction meets the specific criteria established • by the Sentencing Commission for the application of that enhancement. After all, the.district court lacks discretion to alter the Guidelines calculation because, for example, the particular facts, of the prior offense are mitigated in some way, so long as .the predicate prior offense is of the nature specified in the statute. The converse also follows: Since the Guidelines calculation turns on the offense of conviction, if that offense is not inherently .of the nature specified by Congress, the court has no authority to decide that the particular facts of the offense are sufficiently bad that the enhancement applies nonetheless.
Here, citing to Mathis,
Under the modified categorical approach, for “statutes having multiple alternative elements[,] ... a sentencing court [may] look[] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis,
We can assume for purposes of this appeal that the New York first-degree burglary statute is divisible, and that a conviction under subdivision 3 would satisfy the use of force prong of the “crime of violence” definition.' Norié of the Shepard documents pertaining to Genao’s conviction, however, were before the sentencing court, and that court did not engage in any inquiry concerning whether Genao’s burglary conviction might have constituted a crime of violence under the modified categorical approach. At no point did the court look to the elements of the conviction; instead, it referenced only the “particular facts underlying [the] conviction[ ].” Descamps,
D. Relevance of the Facts Underlying the Conviction
The above' analysis may appear unduly technical. Nowhere in his appellate brief, and at no time during the sentencing proceedings before the district court, has Gen-ao contested that his actual conduct in connection with his robbery and burglary convictions was as described in the PSR. If those are indeed the facts, the nature of that conduct seems far more relevant to a sentencing decision than the abstract elements of the statutory offenses to which he pled guilty, or the hypothetical least serious conduct that could support a conviction under those statutes. Thus, the district court’s assumption that his crimes were unquestionably violent has a strong common sense appeal.
Nevertheless, precedent requires that the categorical approach be followed in calculating the Guidelines range. That analysis is an artifact of the nature of the Sentencing Guidelines. Particularly when the Guidelines confined the sentencing court within a narrow, near-mandatory sentencing range, it was important that in applying Guidelines that imposed severe sentencing consequences based on the single factor of a prior conviction for a particular offense of a designated nature, the sentencing court had to be certain that the crime of conviction was indeed, categorically, of that nature.
It bears emphasis, however, that while the non-elemental facts underlying a previous conviction may not be considered for the purposes of applying Guidelines enhancements, those facts, if established to the satisfaction of the district court, are not thereby rendered irrelevant to sentencing. Under United States v. Booker,
However, if the Guidelines represent the initial step in sentencing, they are no longer the stopping point. “The Guidelines are not the only consideration” in the determination of the sentence and the sentencing court cannot simply “presume that the Guidelines range is reasonable.” Id. at 49-50,
Because the district court here short-circuited that process by deciding, incorrectly, that the § 2L1.2(b)(l)(A)(ii) enhancement applied to this case, the sentence was procedurally unreasonable. But the sentencing judge’s impulse that it was appropriate to consider the underlying circumstances was not inherently erroneous. The actual, detailed facts of Genao’s actions, both in his prior criminal behavior and in committing his current offense, matter, and after a proper inquiry may be taken into account by the judge at the appropriate point in the sentencing proceeding (along with all other relevant aggravating or mitigating facts), even if they are not fully captured in the specific factors that enter into the Guideline calculation.
II. Substantive Unreasonableness
Because we vacate Genao’s sentence as procedurally unreasonable, we need not address Genao’s alternate argument that his sentence was substantively unreasonable. See Cavera,
Conclusion
We have considered defendant-appellant’s remaining arguments and have found in them no basis for reversal. For the reasons stated herein, the sentence imposed by the district court is VACATED and the case is REMANDED for re-sentencing de novo in accordance with the Guidelines in effect on the date that Genao .is resentenced.
Notes
. The relevant Guidelines have since been amended, and use a somewhat simpler system for calculating enhancements to the base offense level for illegal reentry based on crimes committed prior to the illegal reentry offense. See U.S.S.G. § 2L1.2(b)(2) (2016).
. The presence or absence of an objection below affects the standard of review applied on appeal.' Where an objection has béen made, we review the district court’s application of the Guidelines de novo, where, as here, the interpretation of the Guidelines is in question. See United States v. Folkes,
. The sentencing judge did adopt the PSR in the written Statement of Reasons.
. On appeal, the parties agree that Genao's actual conviction was for first-degree robbery with a dangerous instrument in violation of N.Y. Penal Law § 160.15(3).
. This concession is based on the conclusion that under New York law, a “dwelling" is defined as a “building” that is “usually occupied by a person lodging therein at night,” N.Y. Penal Law § 140,00(3), and a “building” in' turn may include, among other- things, “any structure, vehicle or watercraft,” id. § 140.00(2), See United States v. Lynch,
. Though we assume for purposes of this decision that first-degree burglary conviction under N.Y, Penal Law § 140.30(3) could constitute a crime of violence under the force clause of U.S.S.G. § 2L1.2, cmt, n.l(B)(iii) (2015), we do not decide the point, since a potential counter-argument is available. To obtain a conviction under N.Y. Penal Law § 140.30(3), the state must prove beyond a reasonable doubt that either the "person guilty of burglary in the first degree ... or another participant in the crime .., use[d] or threatened] the immediate use of a dangerous instrument.” N.Y. Penal Law § 140.30(3). Genao argues that for "a crime of violence" to be based on the use, attempted use, or threatened use of force, the defendant’s use of force must be intentional. [Reply 4] See Leocal v. Ashcroft,
. Indeed, in adopting the amendment, the Sentencing Commission explained both that