Case Information
*1 17 ‐ 1889
United States v.
In the United States Court of Appeals For the Second Circuit August Term, No. ‐
U NITED S TATES OF A MERICA , Appellee ,
T AIROD N ATHAN W EBSTER P UGH , Defendant ‐ Appellant.
Appeal from District Court Eastern District New York. No. cr ‐ — Nicholas G. Garaufis, Judge . A RGUED : F EBRUARY 4, D ECIDED : A UGUST Before: D RONEY C ALABRESI Circuit Judges , U NDERHILL , Chief
District Judge . [*]
Pugh Appeal from a judgment of conviction and sentence of the District Court for the Eastern District of New York (Garaufis, J. ). Pugh was charged with attempting to provide material support to a foreign terrorist organization (count one) and obstruction of justice (count two). At trial, the government admitted into evidence, over Pugh’s objection, a draft letter that Pugh had purportedly written to his wife which, inter alia professed his allegiance to the Islamic State. Pugh was convicted by jury on both counts and sentenced to months of incarceration on count one, months of incarceration count two, sentences run consecutively, for total effective sentence months of incarceration, maximum allowable sentence. Pugh contends that letter addressed his wife should been excluded from evidence pursuant marital communications privilege and, therefore, is entitled new trial. also contends neither his two convictions supported by sufficient evidence and, therefore, should vacated. Lastly, contends sentence procedurally substantively unreasonable because (1) failed sufficiently articulate its reasoning imposing statutory maximum sentence, (2) failed provide sufficient opportunity address court. We disagree most Pugh’s arguments, but agree further articulation sentence determination required.
Accordingly, we AFFIRM district court’s judgment conviction, VACATE sentence, REMAND resentencing.
Judge Calabresi concurs separate opinion.
‐ United States
J O A NN M. N AVICKAS , S AMUEL P. N ITZE , M ARK E. B INI , A SSISTANT U NITED S TATES A TTORNEYS , for Richard P. Donoghue, Attorney for Eastern District New York, Brooklyn, New York, for Appellee .
S USAN G. K ELLMAN , S ARAH
K UNSTLER , Brooklyn, New York , Defendant ‐ Appellant.
U NDERHILL District Judge :
Defendant appellant Tairod Nathan Webster appeals from judgment conviction entered by District Court Eastern District New York (Garaufis, J. ), after jury found him guilty attempting provide material support foreign terrorist organization obstruction justice.
advances three arguments this appeal: (1) district erred denying his motion exclude from evidence draft letter purportedly written his wife; (2) evidence insufficient support either conviction; (3) sentence procedurally Pugh and/or substantively unreasonable. We disagree most Pugh’s arguments, but agree court’s articulation its reasoning for imposing maximum permissible sentence insufficient.
Accordingly, judgment conviction is affirmed , sentence is vacated and case is remanded resentencing.
BACKGROUND jury could found following facts. Pugh citizen and Air Force Veteran who moved Middle East work as civilian contractor different aerospace companies after left military. While living overseas, began researching Islamic State Iraq Levant (“ISIL” or “ISIS”) downloading propaganda materials, as well as discussing ISIS tactics activities online via Facebook. While abroad, also met married Egyptian woman, referred “M.H.S.” On January 2015, flew from Cairo, Egypt ‐ United States Pugh
Istanbul, Turkey. Upon arrival at Turkish airport, Pugh was denied entry into country and apprehended by Turkish authorities. At airport in Turkey, Pugh attempted to destroy, or succeeded in destroying, many electronic devices he was carrying with him, including computer, multiple USB drives, and iPod. Pugh was returned Egypt where his electronic devices were given authorities. A search his laptop revealed internet searches, videos, pictures relating ISIS its presence in, inter alia Turkey Syria, well as letter purportedly drafted by his wife in he pledges his allegiance ISIS. On January 15, 2015, was returned where was briefly detained questioning Customs, released day. He was arrested next day father’s home New Jersey. arraigned March on two count indictment charging him attempting provide material ‐ 1889 Pugh support foreign terrorist organization, violation of U.S.C. § 2339B(a)(1) (count one); and obstruction and attempted obstruction of official proceeding, violation of 18 U.S.C. § 1512(c)(1) and (c)(2) (count two). Pugh pleaded guilty elected go trial. A seven ‐ day jury trial conducted, at close of government’s case, Pugh moved judgment acquittal on both counts, pursuant Federal Rule Criminal Procedure 29.
renewed his motion close his case. district court denied motion on both occasions. On March 9, 2016, jury found guilty on both counts, once again renewed Rule motion post verdict, again denied.
sentenced on May months incarceration on count one months incarceration count two, maximum *7 17 1889
sentence under each statute to run consecutively, total effective sentence months. This appeal followed.
DISCUSSION filed instant appeal in argues: (1) the district court erred in denying his motion exclude draft letter purportedly written his wife; (2) evidence was insufficient support either conviction; (3) his sentence procedurally and/or substantively unreasonable. Additional facts will set out below where necessary.
I. Admission Letter argues first district erred denying his motion limine exclude, pursuant marital communications privilege, use draft letter found laptop. We disagree.
The following additional facts are relevant to this claim. Pugh, who speaks only English, met and married Egyptian woman, M.H.S., who speaks only Egyptian Arabic. couple communicated mostly via Facebook Messenger help Google Translate and/or bilingual acquaintances who would translate messages between pair. When Pugh’s laptop searched, pursuant search warrant, authorities found a saved document which purported draft letter, addressed M.H.S., parties refer “My Misha Letter.” In letter, expressed desire “use [his] talents and skills … establish defend Islamic State.” App’x 55. Further, letter states, relevant part: “I will escort you into Paradise when you see home paid by my blood your tears you will know all worth it”; “I defied my friends family become Muslim, Pugh now I will defy Muslims to be a Mujahid[ ]”; “I am a Mujahid. I am sword against the oppressor a shield the oppressed.” Id .
Pugh’s attorney moved to preclude draft letter pursuant to marital communications privilege. The government, in opposition, argued that Pugh failed establish that letter was protected by privilege because: (1) Pugh failed establish Egyptian marriage would be recognized by States; (2) failed establish intended draft letter be marital communication; (3) because M.H.S. needed assistance interpreters communicate, letter intended kept confidential, even if did intend send it. district issued ruling February rejected government’s argument there no ‐ Pugh marital privilege because Pugh’s marriage was not valid or, even if it was valid, couple was separated, breaking privilege.
Ultimately, though, court denied Pugh’s motion and found “My Misha Letter” admissible two reasons: (1) draft letter was not intended be communication; (2) even if it was, it was not intended confidential. The court determined that Pugh failed establish that intended send draft letter his wife and, therefore, was communication. As support, court highlighted that his wife routinely communicated via Facebook, that there “no indication that even once, much less regularly, typed his messages using program laptop then copied them into Facebook.” App’x 87. Further, court stated there “no indication had sought have letter translated (either by third party or using translation software), would been required M.H.S. understand document.” Id . further found “the draft letter [was] inconsistent with Pugh’s professed reasons for travelling to Turkey,” to find employment. Id .
Alternatively, district court found that, even if draft letter was intended be communication, was intended be kept confidential. The court concluded that using “an ad hoc network informal translators destroys marital communication privilege” is “inconsistent scope marital communications privilege.” App’x at 99. As support, court found letter, if sent, likely translated by translator, rather than Google Translate, given its length contents, couple “unlikely employ trusted, confidential translator” translate message them. Id. at ‐ 91. determined “where married couple evidences intent disclose communications an ad hoc network family, friends, strangers translation, privilege forfeited.” Id . 92.
On appeal, argues that district court erred in both of its determinations: that letter not a communication and, even if it were, that letter not intended be confidential.
The parties disagree about standard of review we should apply reviewing district court’s ruling. government asserts a claim of privilege should be reviewed abuse of discretion. asserts applicable standard review which applies denial a suppression motion: factual findings are reviewed clear error, legal conclusions are reviewed de novo . We need not decide standard applies, because tests are very similar lead same result this case.
“A abuses its discretion if (1) relies on erroneous view law, (2) its decision rests clearly erroneous finding fact, or (3) its decision—though necessarily product legal error or clearly erroneous factual finding—cannot located *13 17 1889
United States v.
within range of permissible decisions.” United States v. Yannai , 791 F.3d 226, 242 (2d Cir. 2015). A review of district court’s evidentiary rulings is deferential. United States v. Hendricks , 921 F.3d 320, 326 (2d Cir. 2019). Issues of law are reviewed de novo. v. Sewell , F.3d 647, (2d Cir. 2001). Questions of fact are reviewed “clear error,” is “deferential” “does entitle [a reviewing court] overturn a finding simply because [the court is] convinced [it] would decided case differently.” Glossip v. Gross , S. Ct. 2726, (2015) (internal quotation marks omitted).
“[T]he applicability of privilege is a factual question, [but] determining scope privilege is question law.” Mejia (2d Cir. 2011) (internal quotation marks omitted). distinction, then, “whether district based its decision on consideration application privilege communication or understanding ‐ privilege’s scope.” Id . A determination is factual when it “involves application of … privilege our case law has already developed novel set facts before us … [rather than] address[ing] scope privilege itself novel way.” Id . (question whether communicating through client’s sister waived attorney client privilege factual).
“The confidential communications privilege … [shields] communications made confidence during valid marriage….” In re Witness Before Grand Jury (2d Cir. 1986).
purpose privilege provide “assurance all private statements between spouses—aptly called best solace human existence—will be forever free from public exposure.” Id. (internal citations quotation marks omitted). Courts noted, however, “privileges contravene fundamental principle public … has right every man’s evidence…. As such, they must strictly construed accepted only very limited *15 17 ‐ 1889 v.
extent … excluding relevant evidence has public good transcending the normally predominant principle utilizing all rational means ascertaining truth.” Trammel , 445 U.S. 40, 49 (1980) (internal citation quotation marks omitted).
The marital communications privilege applies when (1) the parties were valid marriage at time the communication ; (2) “utterances or expressions” were “intended convey information between spouses” (communication prong); (3) communications were intended confidential (confidentiality prong). In re Witness Before Grand Jury , F.3d at 39. “[T]he party invoking privilege bears burden establishing its applicability case at hand.” In re Grand Jury Subpoenas (2d Cir. 2003). However, confidentiality presumed, and, therefore, party challenging applicability *16 17 1889
United States v.
privilege “[bears] burden defeating this presumption by showing that communication made privately.” United States v. Taylor , 92 F.3d 1313, 1332 (2d Cir. 1996).
“It well settled communications to privilege applies been limited to utterances or expressions intended by one spouse to convey message to other.” United States v. Smith , 533 F.2d 1077, 1079 (8th Cir. 1976) (citing Pereira v.
United States , U.S. 1, (1954)). confidential communications privilege applies “where conduct intended convey confidential message from actor observer.” v. Estes , F.2d 465, (2d Cir. 1986); see also Sykes , n.1 (2d Cir. 1983) (citing cases, including Smith hold “the marital communication privilege applies only communications or acts intended convey message”).
A person seeking invoke marital privilege must show actually intended convey message spouse. See 1889 United States v. Pugh
Smith , F.2d at 1079; v. Mohsen , F.3d 1028, ‐ (9th Cir. 2009) (privilege did apply where there was “no evidence whatsoever” that an inmate intended to send letter to his wife where letter had her name on top but no mailing address); Montgomery (9th Cir. 2004) (letter left by wife husband on kitchen counter was communication because it was left place where husband could find it). district court found “no evidence that intended
letter be communication” because there was “no evidence that [he] intended send draft.” App’x at 86. argued (as he does appeal) that was “no great stretch infer” that intended send M.H.S. letter, but found that “inference devoid evidentiary support” that was “insufficient carry Pugh’s burden.” Id . 87. Given there was no evidence M.H.S. had access Pugh’s computer where letter found, there no evidence ever typed messages v. another format before sending them via Facebook Messenger, the letter had not yet been translated, was not error the court determine failed prove that intended the letter be marital communication. Accordingly, court’s ruling is affirmed, we need reach Pugh’s second argument, court’s determination on confidentiality prong erroneous.
II. Sufficiency of Evidence claims next there insufficient evidence support either of two counts of conviction, and, therefore, they should reversed.
This Court reviews sufficiency evidence challenge using same standard utilized by district court ruling on Rule motion. Eppolito (2d Cir.
2008). Rule 29(a) Federal Rules Criminal Procedure provides: “[T]he defendant’s motion must enter judgment acquittal any offense evidence v. insufficient sustain a conviction.” Fed. R. Crim. P. 29(a). “The test sufficiency … is whether rational jury could conclude beyond a reasonable doubt that defendant guilty crime charged…. The court must make determination evidence against particular defendant … viewed in [the] light … most favorable government, … [with] all reasonable inferences … resolved in favor government.” Eppolito , F.3d (internal citations quotation marks omitted). “The jury may reach its verdict based upon inferences drawn from circumstantial evidence, evidence must viewed in conjunction, in isolation.” Id . A court will “overturn conviction … only if, after viewing evidence light most favorable Government drawing all reasonable inferences its favor, [it determines] no rational trier fact could concluded Government met its burden proof.” Glenn (2d Cir.
2002) (internal quotation marks omitted). reviewing must *20 17 1889
United States v.
“defer[] to the jury’s assessment of witness credibility its assessment weight of the evidence.” v. Baker , F.3d 123, (2d Cir. 2018) (internal quotation marks omitted).
In sum, “[a] defendant challenging sufficiency evidence supporting a conviction faces a ‘heavy burden.’” Glenn , (quoting Matthews F.3d (2d Cir. 1994)).
a. Count One: Attempt to Provide Material Support to a Foreign Terrorist Organization argues first there insufficient evidence that took a substantial step furtherance intended crime, required sustain conviction attempt provide material support foreign terrorist organization. We disagree.
“In order establish defendant guilty attempt commit crime, government must prove defendant had intent commit crime engaged conduct amounting substantial step towards commission *21 17 1889
United States v.
crime.” United States v. Yousef , 327 F.3d 56, 134 (2d Cir. 2003) (internal quotation marks omitted). “For defendant have taken ‘substantial step,’ must have engaged more than ‘mere preparation,’ but may stopped short of ‘the last act necessary’ actual commission of substantive crime.” Id . (quoting United States v. Rosa , F.3d 315, (2d Cir. 1993)). “A defendant may be convicted attempt even where significant steps necessary carry out substantive crime are not completed.” Id . A substantial step “is conduct planned culminate commission substantive crime being attempted.” v. Farhane , F.3d 127, (2d Cir. 2011) (internal quotation marks omitted).
Because substantial step need be “last act necessary” before commission crime, “the finder fact may give weight which has already been done well as remains accomplished before commission substantive crime.” Manley (2d Cir. ‐ 1980). Further, “[i]n order behavior to be punishable an attempt, it need not be incompatible with innocence, yet it must be necessary consummation crime be such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt was undertaken in accordance a design violate statute.” Id . at 88. For purposes statute under charged, “a substantial step towards provision material support need planned culminate in actual terrorist harm, but only in support—even benign support—for an organization committed such harm.” Farhane 148. argues evidence insufficient sustain finding he took substantial step toward providing material support ISIS because only indulged online interest ISIS propaganda, expressed political views, bought ticket Turkey from Egypt. evidence, however, supports different ‐ conclusion, particularly when viewed in light most favorable government. When Pugh’s electronic devices were searched, authorities recovered ISIS propaganda videos and materials, as well research into ISIS’ control border crossings between Turkey and Syria and its presence in both countries. Among those materials were maps articles titled “The secret jihadi smuggling route through Turkey,” “Where ISIS Gaining Control in Iraq Syria,” “Syria’s border posts who controls them.” Gov’t. App’x at 47, 454. Further, jury heard evidence time his arrival in Turkey, carrying with him “tactical backpack” filled with materials would be unnecessary large city like Istanbul, but would be beneficial traveling through Turkey Syrian border. Further, equipped materials would suitable searching for work, alleged reason traveling Turkey, nor did Turkish work visa. argues that without an ISIS contact in Turkey and/or Syria to help him cross border, he could not have taken substantial step toward providing material support. The jury heard testimony, however, although most people seeking to join ISIS make connections ahead time, not necessary someone to secure assistance in Turkey before reaching Syria. evidence, taken together viewed in light most
favorable to government, provides ample support jury’s conclusion engaged in substantial step toward providing material support ISIS. Although he was apprehended by Turkish officials before he able complete his plan, evidence supports finding he traveling Turkey cross Syrian border an effort join ISIS. Although he did ISIS contact, nor had he sworn formal oath allegiance organization, steps had completed were nonetheless substantial were “planned culminate” support ISIS. Pugh Farhane at 147. But for interference Turkish officials, there is no indication that Pugh would completed his journey Syria to join ISIS. Accordingly, there was sufficient evidence sustain jury’s conclusion that Pugh took substantial step toward providing material support foreign terrorist organization. His conviction count one affirmed.
b. Count Two: Obstruction Justice argues next that there was insufficient evidence nexus between his obstructive conduct official proceedings in support conviction obstruction justice. Specifically, argues when denied entry into Turkey, “there no reason him believe any judicial proceeding had been initiated … [or] would initiated future.” Appellant’s Br. 49. government asserts destroyed, or attempted destroy, USB thumb drives files contained thereon order preclude government from being United
able to use materials a federal grand jury proceeding to indict attempt provide material support ISIS. was charged count two indictment obstruction justice pursuant U.S.C. § 1512(c)(1), which criminalizes altering, destroying, mutilating, or concealing information “with intent impair object’s integrity or availability use official proceeding.” He was also charged pursuant U.S.C. § 1512(c)(2), criminalizes obstructing, influencing, or impeding any official proceeding, or attempting do so. An “official proceeding” includes “a proceeding before judge or … or Federal grand jury.” U.S.C. § 1515(a)(1)(A). government need prove defendant knew proceeding or would federal.
U.S.C. § 1512(g)(1). “[T]he government must prove such proceeding reasonably foreseeable defendant.” *27 17 ‐ 1889
United States v.
States v. Martinez , 862 F.3d 223, 237 (2d Cir. 2017), vacated on other grounds by Rodriguez v. United States , 139 S. Ct. 2772 (2019).
In order prove obstruction of justice in violation of section 1512(c)(2), “the government must show that there a ‘nexus’ between the defendant’s conduct and the pending, or foreseeable, official proceeding.” [4] Id . “[T]he existence of nexus between [a defendant’s] action and proceeding does depend the defendant’s knowledge…. Rather, existence of nexus, obstruction ‐ justice purposes, is determined by whether defendant’s acts have relationship time, causation, or logic with judicial proceedings.” Id . (internal citations quotation marks omitted). “[I]n other words, ‘the endeavor must have natural probable effect interfering due administration *28 17 1889
United States v.
justice.’” United States v. Reich , 479 F.3d 179, 185 (2d Cir. 2007) (quoting United States v. Aguilar , 515 U.S. 593, 599 (1995)).
Moreover, “[t]he actions defendant need not have directly impeded, or attempted impede directly, official proceeding.” Martinez , F.3d at 238. Further, defendant’s actions need not be “successful impeding or obstructing justice … so long acts had natural probable consequence interfering an official proceeding was foreseeable even if not then pending.” Id . (internal citations omitted). “[A]n official proceeding need pending or about be instituted time offense[.]” U.S.C. § 1512(f)(1). “Rather, we found nexus requirement satisfied where grand jury proceeding was ‘foreseeable’ because defendant aware ‘that target investigation.’” v. Binday , F.3d 558, (2d Cir. 2015) (quoting Persico (2d Cir. 2011)).
United Pugh
Here, Pugh has “failed show that evidence was insufficient establish nexus between his actions and obstruction of proceeding.” Reich at 186. The evidence supports jury’s conclusion acted intent destroy devices impair their use in reasonably foreseeable official proceeding. jury heard testimony from number witnesses,
including officials experts foreign terrorist organizations, about cultural climate America regarding terrorist organizations, including prevalence American citizens becoming radicalized via social media attempting join ISIS other terrorist groups overseas, well as States’ response handling those types situations. On basis evidence presented, jury reasonably could have concluded time detained, or should been reasonably foreseeable being held Turkey, ‐ United Pugh
well known frequently utilized pathway to Syria, while attempting travel Syria to join ISIS would subject him to official proceedings in States. Further, government introduced evidence Pugh’s knowledge, before he was detained in Turkey, at least one other American citizen who was arrested at JFK Airport attempting join ISIS Syria criminally charged providing material support foreign terrorist group (and thus subjected an official proceeding). Accordingly, jury could reasonably concluded similar proceeding was foreseeable at time he was detained.
Moreover, evidence supports conclusion when denied entry into Turkey, while still Turkish airport, wiped his iPod all contents destroyed his USB thumb drives. Given reasonable foreseeability official proceeding against him, jury also free infer destroyed electronic devices with intent impair their integrity and render contents, included ISIS propaganda and evidence Pugh’s support ISIS, unavailable use against him in future official proceeding.
Viewed in light most favorable government, and drawing all reasonable inferences its favor, we must, rational trier fact could viewed evidence against found an official proceeding regarding his actions abroad reasonably foreseeable destroyed his electronic devices effort keep them from being used against him. Accordingly, Pugh’s conviction on Count Two is affirmed.
III. Sentencing
Pugh’s last argument appeal his sentence both substantively procedurally unreasonable because did not provide him opportunity give prepared sentencing remarks did give adequate reasoning ‐ v. Pugh imposing the maximum permissible sentence. We review sentencing decisions under “deferential abuse ‐ of ‐ discretion standard of review.” Gall U.S. 38, (2007).
a. Right of Allocution The following additional facts are relevant here. Pugh appeared sentencing May and, after hearing from government, court allowed Pugh deliver his prepared remarks discussed difficulty of being black Muslim man America, set out his own version facts of case, accused government lying setting him up. The amount time given speak unclear from record, but after over seventeen uninterrupted transcript pages Pugh’s remarks, court interrupted him suggest tailor his remarks sentencing, rather than his version facts. then allowed counsel five minute recess, when they returned, Pugh’s attorney continued sentencing argument, v. Pugh rather than Pugh. Pugh argues court’s decision to stop him from finishing his remarks amounted to procedural unreasonableness. We disagree.
A court is required provide defendant with an opportunity speak sentencing offer mitigating information. Fed. R. Crim. P. 32(i)(4)(A)(ii). That right, right allocution, is an “absolute right” ensuring defendant “allowed meaningful right express relevant mitigating information before attentive receptive district judge.” Li (2d Cir. 1997). But right allocution “is not unlimited terms either time or content.” Id . Here, Pugh provided substantial uninterrupted time address court. court only interrupted him when deemed no longer providing information relevant mitigation simply asked refocus his statements. Further still, very importantly, did tell could not continue remarks v. after the recess; chose not do so. Accordingly, Pugh’s argument his sentence was procedurally unreasonable because was denied right allocution fails.
b. Statement Reasons also claims sentence procedurally unreasonable because district court failed adequately explain chosen sentence. He claims sentence substantively unreasonable because cannot be located within range permissible sentencing decisions.
In making sentencing determination, district court must reach “an informed individualized judgment each case what ‘sufficient, but greater than necessary’ fulfill purposes sentencing.” Cavera (2d Cir. 2008) (en banc) (quoting U.S.C. § 3553(a)). In determining “particular sentence imposed,” must consider factors listed U.S.C. § 3553(a), include: “the nature circumstances of the offense the history and characteristics of the defendant,” id . § 3553(a)(1); “the kinds sentences available,” id . § 3553(a)(3); the range set out the Sentencing Guidelines, id . § 3553(a)(4); “any pertinent policy statement,” id . § 3553(a)(5); “the need to avoid unwarranted sentence disparities among defendants with similar records who been found guilty similar conduct,” id . § 3553(a)(6); “the need to provide restitution to any victims the offense.” Id . § 3553(a)(7).
In addition, court must consider “need for the sentence imposed … (A) reflect seriousness offense, to promote respect law, provide just punishment offense; (B) afford adequate deterrence criminal conduct; (C) protect public from further crimes defendant; (D) provide defendant needed educational or vocational training, medical care, or other correctional treatment most effective manner.” Id . § 3553(a)(2). A district has obligation *36 17 ‐ 1889
United States v.
weigh factors listed section 3553(a). United States v. Fernandez , F.3d 19, (2d Cir. 2006); see also v. Corsey , 723 F.3d 366, (2d Cir. 2013) (per curiam).
After consideration section 3553(a) factors, district court must impose sentence sufficient, but not greater than necessary, fulfill purposes sentencing. In doing so, if court determines lower sentence will be just effective as higher sentence, it must choose lower sentence. See Ministro Tapia , F.3d 137, (2d Cir. 2006) (“[I]f district court were explicitly conclude two sentences equally served statutory purposes [section] it could not, consistent parsimony clause, impose higher.”).
A district court commits procedural sentencing error when it “does consider [18 U.S.C.] § 3553(a) factors … [or] if fails adequately explain its chosen sentence[.]” Cavera 190. sentencing record must sufficient appellate ‐ 1889 “be confident that sentence resulted from district court’s considered judgment as what necessary address various, often conflicting, purposes of sentencing. ʺ Id . at 90. On review, “just we do insist upon ‘robotic incantations,’ we require more than a few magic words.” Corsey , F.3d at 376. Requiring judges articulate their reasons for specific sentence “is precondition ‘meaningful appellate review’” allows reviewing court “have confidence that district court exercised its discretion did so on basis of reasons survive our limited review.” Cavera at (quoting Gall, U.S. at 50). “Without sufficient explanation how court below reached result did, appellate review reasonableness judgment may well impossible.” Id .
At sentencing, after hearing from both sides, district stated there “ample evidence” admitted trial jury find guilty both counts commented portions the evidence, including Pugh’s military service, which the court called “commendable,” Pugh’s time overseas the Middle East, ultimately Pugh’s decision attempt join ISIS. App’x at ‐ 72. The court mentioned defendant’s possession videos taken from defendant’s hard drive maps border crossings into Syria. After roughly two pages comments, court stated case about Pugh’s choice between standing up for or betraying States, country had “done so much” him. Id. 572. court addressed stating “You’ve made your choice, sir. I no sympathy.”
Most court’s comments on record relate Pugh’s guilt rather than appropriate sentence. Without further explanation its sentencing determination, sentenced two consecutive terms incarceration: months on count one months count two, maximum sentence *39 17 ‐ 1889
United States v.
under each statute time offense, a total of 420 months, highest permissible sentence. Id .
The sentence 420 months represents statutory maximum, fell within Sentencing Guidelines range 360 months’ 420 months’ imprisonment. fact Guidelines sentence may explain district court’s spare explanation sentence imposed. But district courts are not permitted assume Guidelines sentence substantively reasonable. Rita v. United States , U.S. 338, 351 (2007) (“[T]he sentencing does enjoy benefit legal presumption Guidelines sentence should apply.”) (citing v. Booker , U.S. 220, ‐ (2005)). Indeed, sentence within properly calculated Guidelines range can substantively unreasonable. Dorvee (2d Cir.
2010).
A lengthy explanation is not generally necessary “when a judge decides simply apply the Guidelines a particular case.” Rita U.S. 356. But a general rule, the “sentencing judge should set forth enough satisfy the appellate has considered parties’ arguments has a reasoned basis exercising own legal decisionmaking authority.” Id.
When a defendant has been convicted multiple counts, is important sentencing judge articulate why sentence equal statutory maximum on one count will produce sufficient sentence within meaning U.S.C. § 3553(a). That principle has been carried into Guidelines, provide presumption favor concurrent sentences except when consecutive sentences are required order impose total sentence reflecting just punishment. See U.S.S.G. § 5G1.2(c) (“If sentence imposed count carrying highest statutory maximum adequate achieve total punishment, then sentences on all counts shall run concurrently, except the extent otherwise required by law.”).
A district court should explain the reasons justifying the total punishment as sufficient, but not greater than necessary, taking into account particular characteristics the defendant the circumstances offense. That justification should guide determination whether impose sentences multiple counts consecutively, partially consecutively, or concurrently. Explaining why concurrent sentences would not achieve “sufficient” sentence particularly important where, here, each two sentences are quite long, district court imposed statutory maximum each sentence, and, therefore, defendant sentenced longest legal sentence available. present record does permit meaningful appellate
review substantive reasonableness Pugh’s sentence.
Without more, we cannot confident district 1 appropriately exercised its discretion crafting sentence.
2 Accordingly, Pugh’s sentence reflects procedural error 3 vacated. We remand case for resentencing, including 4 articulation court’s reasons whatever sentence imposes. 5 CONCLUSION
6 For foregoing reasons, we AFFIRM judgment 7 conviction, VACATE sentence, REMAND resentencing. *43 G UIDO C ALABRESI Circuit Judge , concurring:
I agree with the majority opinion, I join in full. I write separately to emphasize the risks posed by the crime of obstruction of justice, 18 U.S.C. § 1512(c), it has evolved, and as it has been applied in this case. The case before us illustrates how dangerously far 18 U.S.C. § 1512(c) now extends. Defendant’s main crime was to attempt to join ISIS, in violation of 18 U.S.C. § 2339B(a)(1). This is a most serious crime, it carries a serious penalty. But, at the time Defendant committed his acts, his crime was subject to a statutory maximum of years’ imprisonment. Understandably, the District Court sentenced Defendant to the full years under that count. The District Court, however, went further. It ultimately sentenced Defendant to more than twice that time because of acts that seem to have been much less grave: Defendant’s apparent destruction of several USB drives the deletion of the data on his iPod, in violation of U.S.C. § 1512(c).
It is ironical—more than ironical, potentially dangerous—that the government was able to take what is already a very serious crime—attempting to provide material support a foreign terrorist organization—and, the basis some not overly strong facts, bring an obstruction charge that more than doubled the maximum sentence otherwise available. majority is correct that, here, evidence was enough support
prosecutor’s obstruction justice charge jury’s verdict. On basis facts presented at trial, jury was licensed conclude beyond a reasonable doubt that defendant corruptly altered, mutilated, or destroyed digital media with intent impair their availability use in foreseeable official proceeding, in violation U.S.C. § 1512(c)(1). But really justifiable, because this conduct, turn Defendant’s ‐ year sentence into ‐ year one? In this case, there no evidence suggest destroyed USB drives or deleted iPod data contained information valuable or significant itself or ISIS. Indeed, evidence trial established Defendant did not have relationship current ISIS members, did not ISIS ‐ affiliated handler supporting his recruitment, did succeed attempt join organization. To cross into ISIS controlled territory, *44 Defendant apparently planned to rely on a publicly ‐ available map from a large ‐ circulation newspaper.
This is not to downplay the seriousness of Defendant’s crime. For a skilled aircraft mechanic like Defendant to offer services to a barbaric terrorist organization is a criminal act of the highest order. That is the gravamen of Defendant’s criminal conduct, and, accordingly, it should be the primary determinant of Defendant’s punishment, Congress limited 15 years maximum (now raised 20 years, see USA FREEDOM Act of 2015, Pub. L. No. 114 ‐ 23, 129 Stat. 268 § 704). But Defendant here sentenced 35 years. And the additional term of 20 years of imprisonment seems incongruous. Obstruction of justice can, of course, in some circumstances, be very serious crime. But we have look at the context. And here, in this specific context, the record does not establish the seriousness of that crime. Indeed, looks as though imposed sentence it did based on heinousness of Defendant’s attempted terrorism simply used obstruction conviction as means go beyond statutory maximum of that terrorism count. majority recognizes problems with District Court’s decision
remands this case for greater explanation—a procedural ground. This is perfectly proper. We have stated en banc an appeals panel will usually reach questions substantive reasonableness where there are procedural errors corrected. See United States v. Cavera , 550 F.3d 180, 189 ‐ 90 (2d Cir. 2008) ( en banc ). But I believe demand more explanation also, inevitably, implies substantive problems may underly this sentence as well.
My belief reinforced by concern with how broad obstruction justice prosecutions under 18 U.S.C. § 1512(c) become. As construed by federal courts, crime has been applied expansively, tacked ‐ charge in everything from attempted robbery murder cases run ‐ ‐ ‐ mill drug busts. See, e.g. , United States v. Johnson , 655 594, 598, 603 ‐ 05 (7th Cir. 2011) (destruction cocaine base actionable under 18 U.S.C. § 1512(c)(1)); v. Ortiz , 367 F. Supp. 2d 536, 538, 540 ‐ 44 (S.D.N.Y. 2005) (attempted disposal an automobile used connection with an attempted robbery actionable under U.S.C. § 1512(c)(1)); Vasquez ‐ Soto No. Cr. ‐ (GBD), WL *1 (S.D.N.Y. May 2, 2013) (wiping fingerprints off an automobile used connection attempted murder ‐ hire actionable under U.S.C. § *45 1512(c)(1)); see also Sarah O’Rourke Schrup, Obstruction of Justice: Unwarranted Expansion of 18 U.S.C. § 1512(c)(1) , 102 J. Crim. L. & Criminology 25 (2012) (collecting and discussing cases).
It is at least arguable this law never intended be used so broadly. 18 U.S.C. § 1512(c) enacted as part of Sarbanes ‐ Oxley Act of major white ‐ collar reform bill, largely prompted by reports of corporate accounting fraud at Enron and other major blue ‐ chip companies. See H. R. Rep. No. ‐ (2002). But, as applied interpreted, U.S.C. § 1512(c) can now reach everything from smallest crime broadest political attack creates tremendous room for prosecutorial discretion.
Accordingly, judges, we should careful, in examining obstruction of justice cases, make our review searching contextual. A sentence obstruction justice under U.S.C. § 1512(c) should reflect severity obstruction justice context particular underlying crime, prosecutorial or judicial dissatisfaction limits Congress placed gravity underlying crime. And this, ultimately, what is called case before us.
[*] Judge Stefan R. Underhill, District Court District Connecticut, sitting by designation.
[1] At time commission offense, statutory maximum count one pursuant U.S.C. § 2339B(a)(1) months. It has since been increased months.
[2] Mujahid means “one who struggles” and, context jihad, “holy warrior.” Gov’t App’x 131.
[3] determined M.H.S. had valid marriage time draft letter, neither party takes issue ruling.
[4] “We previously assumed without deciding requirement nexus between obstructive act official proceeding required under subsections (b)(2) (c)(2) § likewise applies subsection (c)(1). See v. Ortiz , F. App’x 13, (2d Cir. 2007). Because [Pugh’s] claim fails any event, we likewise assume here nexus requirement applies.” Binday n.33 (2d Cir. 2015).