United States v. Deshawn Ferrell, Tyshea Mincey, 485 F.3d 687 (2d Cir. 2007). · Go Syfert
United States v. Deshawn Ferrell, Tyshea Mincey, 485 F.3d 687 (2d Cir. 2007). Cases Citing This Book View Copy Cite
24 citation events (24 in the last 25 years) across 5 distinct courts.
Strongest positive: United States v. Confredo (nysd, 2010-12-20)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Confredo (2×)
S.D.N.Y. · 2010 · confidence medium
United States v. Ferrell, 485 F.3d 687, 688 (2d Cir.2007) (per curiam).
discussed Cited as authority (rule) United States v. Jones
2d Cir. · 2010 · confidence medium
A district court on a Crosby remand, however, is obligated to consider 13 whether to resentence based on “the circumstances existing at the time of the original sentence.” 14 Crosby, 397 F.3d at 117 (emphasis added); United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir. 15 2007) (holding that a district court is not to consider evidence of post-conviction rehabilitation in 16 deciding whether to resentence under Crosby).
discussed Cited as authority (rule) United States v. Jones
2d Cir. · 2010 · confidence medium
A district court on a Crosby remand, however, is obligated to consider whether to resentence based on “the circumstances existing at the time of the original sentence.” Crosby, 397 F.3d at 117 (emphasis added); United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir.2007) (holding that a district court is not to consider evidence of post-conviction rehabilitation in deciding whether to resentence under Crosby).
cited Cited as authority (rule) United States v. Nunez-Gonzalez
2d Cir. · 2010 · confidence medium
See id. at 120 ; United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir.2007).
discussed Cited as authority (rule) United States v. Sutherland
2d Cir. · 2009 · confidence medium
We have held that on a Crosby remand, the first task of the district court is to “make a ‘threshold determination’ of whether, ‘based on the circumstances at the time of the original sentence, ’ it would have imposed a different sentence had it known the Guidelines were advisory.” United States v. Ferrell, 485 F.3d 687, 688 (2d Cir.2007) (per curiam) (quoting Crosby, 397 F.3d at 120 ).
discussed Cited as authority (rule) United States v. Sutherland
2d Cir. · 2009 · confidence medium
We have held that on a Crosby remand, the first task of the district court is to “make a ‘threshold determination’ of whether, ‘based on the circumstances at the time of the original sentence, ’ it would have imposed a different sentence had it known the Guidelines were advisory.” United States v. Ferrell, 485 F.3d 687, 688 (2d Cir.2007) (per curiam) (quoting Crosby, 397 F.3d at 120 ).
discussed Cited as authority (rule) United States v. Newkirk
2d Cir. · 2008 · confidence medium
In addition, to the extent Newkirk contends that the district court should have considered post-sentencing rehabilitation in deciding whether to resentence him, “we have repeatedly held that a district court is not to consider such evidence on a [Crosby ] remand.” United States v. Ferrell, 485 F.3d 687, 688 (2d Cir.2007) (per curiam).
cited Cited "see" United States v. Wallace
2d Cir. · 2015 · signal: see · confidence high
See United States v. Ferrell, 485 F.3d 687, 688 (2d Cir.2007).
discussed Cited "see" United States v. Confredo
2d Cir. · 2012 · signal: see · confidence high
See United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir.2007) (rejecting consideration of post-sentencing rehabilitation in absence of threshold determination that resentencing was warranted on other grounds).
discussed Cited "see" United States v. Timewell (2×)
2d Cir. · 2009 · signal: see · confidence high
See United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir. 2007).
discussed Cited "see" United States v. Johnson (2×)
2d Cir. · 2009 · signal: see · confidence high
See United States v. Ferrell, 485 F.3d 687, 688-89 (2d Cir.2007).
cited Cited "see" United States v. Andrews
2d Cir. · 2007 · signal: see · confidence high
See United States v. Ferrell, 485 F.3d 687, 688 (2d Cir.2007).
discussed Cited "see, e.g." People of Michigan v. Adam Donald Lutz
Mich. Ct. App. · 2018 · signal: see also · confidence medium
Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the “circumstances existing at the time of the original sentence.” Id. at 117; see also United States v Ferrell, 485 F3d 687, 688 (CA 2, 2007) (holding that the trial court’s failure to consider circumstances as they existed at the time of the resentencing hearing, including evidence of the defendant’s post-judgment prison rehabilitation, did not violate the defendant’s due process rights). [Id. at 398-399 (footnote omitt…
discussed Cited "see, e.g." People of Michigan v. Adam Donald Lutz
Mich. Ct. App. · 2018 · signal: see also · confidence medium
Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the “circumstances existing at the time of the original sentence.” Id. at 117; see also United States v Ferrell, 485 F3d 687, 688 (CA 2, 2007) (holding that the trial court’s failure to consider circumstances as they existed at the time of the resentencing hearing, including evidence of the defendant’s post-judgment prison rehabilitation, did not violate the defendant’s due process rights). [Id. at 398-399 (footnote omitt…
discussed Cited "see, e.g." People of Michigan v. Frederick Harvey Grumbley
Mich. Ct. App. · 2017 · signal: see also · confidence medium
Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the “circumstances existing at the time of the original sentence.” [Crosby, 397 F3d] at 117; see also United States v Ferrell, 485 F3d 687, 688 (CA 2, 2007) (holding that the trial court’s failure to consider the circumstances as they existed at the time of the resentencing hearing, including evidence of the defendant’s postjudgment prison rehabilitation, did not violate the defendant’s due process rights). [Lockridge, 49…
discussed Cited "see, e.g." People v. Lockridge (2×)
Mich. · 2015 · signal: see also · confidence medium
Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the “circumstances existing at the time of the original sentence.” Id. at 117 ; see also United States v Ferrell, 485 F3d 687, 688 (CA 2, 2007) (holding that the trial court’s failure to consider the circumstances as they existed at the time of the resentencing hearing, including evidence of the defendant’s post- judgment prison rehabilitation, did not violate the defendant’s due process rights).
discussed Cited "see, e.g." Gaskin v. United States
W.D.N.Y. · 2008 · signal: see also · confidence medium
However, the Supreme Court rejected that argument in Washington v. Recuenco, 548 U.S. 212, 222 , 126 S.Ct. 2546, 2553 , 165 L.Ed.2d 466 (2006) ("Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.”); see also, U.S. v. Ferrell, 485 F.3d 687, 689 (2d Cir.2007) ("Ferrell next contends that because all Booker errors are structural, the district court erred when it did not *259 resentence him.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Deshawn FERRELL, Defendant-Appellant, Tyshea Mincey, Defendants
Docket 06-0133-cr.
Court of Appeals for the Second Circuit.
May 11, 2007.
485 F.3d 687
2007 U.S. App. LEXIS 11119
Theodore S. Green, Green & Willstatter, White Plains, NY., Cathy Seibel, Deputy United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney, Southern District of New York, New York, NY.
Winter, Calabresi, Sotomayor.
Cited by 18 opinions  |  Published
PER CURIAM.

Defendant-appellant Deshawn Ferrell appeals from a final order of the United States District Court for the Southern District of New York (Brieant, /.) declining to resentence defendant and affirming his original sentence for firearm-related charges. On appeal, Ferrell raises three challenges to the district court’s decision not to resentence him. First, defendant argues that the district court violated his due process rights when, on remand, it would not take into account the relevant sentencing facts and circumstances as they existed at the time of the hearing to consider whether to resentence him, including evidence of post-judgment prison rehabilitation. Second, Ferrell asserts that when the district court did not resentence him it erred, because all errors under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), are structural. Third, defendant contends that the length of his sentence renders it unreasonable. Each of these claims is unavailing.

Ferrell’s first argument takes issue with the district court’s failure to consider evidence of his post-conviction rehabilitation when deciding whether to resentence him. But we have repeatedly held that a district court is not to consider such evidence on a remand under United States v. Crosby, 397 F.3d 103 (2d Cir.2005). Rather, on a Crosby remand, a district court must first make a “threshold determination” of whether, “based on the circumstances at the time of the original sentence,” it would have imposed a different sentence had it known the Guidelines were advisory. Id. at 120 (emphasis added). If the district court finds it would not have imposed a materially different sentence, that is the end of the matter. Id. at 121; see also United States v. Garcia, 413 F.3d 201, 229 (2d Cir.2005). Only if the district court answers the threshold determination in the affirmative[*689] does a resentencing occur. See United States v. Williams, 399 F.3d 450, 461 (2d Cir.2005).

Defendant, in effect, acknowledges that the restriction on district courts’ consideration of evidence of post-conviction rehabilitation is the law of the circuit. But he asserts that the Crosby remand scheme for unpreserved Booker errors “does not afford the full benefits of the due process protections that ought to accompany retroactive application of Booker” and urges this court to adopt the system for such errors embraced by the Third Circuit. See United States v. Davis, 407 F.3d 162, 165 (3d Cir.2005) (en banc) (explaining the Third Circuit approach).

In Williams, however, we expressly rejected the automatic resentencing approach adopted by the Third Circuit. We explained that our circuit’s process for addressing unpreserved Booker errors&emdash;un-like the procedure adopted by the Third Circuit or the automatic affirmance scheme embraced by some other circuits&emdash; adequately protected the rights of defendants entitled to retroactive application of Booker but also properly balanced those rights with the need to avoid the “needless burdens and risks of automatic resentenc-ing.” 399 F.3d at 460. We specifically identified the dangers we thought it necessary to avert as “the risks [that] arise from the fact that, if the defendant is resen-tenced on the basis of circumstances existing at the time of the resentencing, new aggravating facts might increase the sentence or new mitigating facts might reduce it.” Id. at 459 (internal citation omitted). Moreover, we explained that an automatic remand for resentencing would give some defendants more process than they were due under the controlling plain error analysis. Id.

As this court has already rejected the automatic resentencing procedure embraced by the Third Circuit and determined that the Crosby approach adequately protects the rights of defendants whose sentences were affected by unpreserved Booker errors, we reject Ferrell’s argument that our implementation of Booker&emdash; which precludes district courts, on a Crosby remand, from taking into account evidence of post-judgment conduct&emdash;violates his due process rights. [1]

Ferrell next contends that because all Booker errors are structural, the district court erred when it did not resen-tence him. But this court has expressly held that such errors are not structural, see United States v. Roque, 421 F.3d 118, 123 (2d Cir.2005), as have various other circuits. See United States v. Martinez-Lugo, 411 F.3d 597 (5th Cir.2005); United States v. White, 405 F.3d 208, 221-22 (4th Cir.2005); United States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir.2005) (en banc).

Finally, Ferrell asserts that even if the evidence relating to his post-conviction rehabilitation was properly not taken into account, his sentence is substantively unreasonable in light of some of his personal characteristics. But given all the circum[*690] stances cited by the district court, including Ferrell’s leadership role in the offense; the serious nature of trafficking in firearms, particularly when those firearms are sold to individuals involved in other serious crimes; his efforts to obstruct the investigation into his crimes; and the fact the sentence does not exceed the applicable Guidelines range, we conclude that his sentence falls within the “broad range of reasonable sentences that the District Court could have imposed in the circumstances presented.” United States v. Fernandez, 443 F.3d 19, 34 (2d Cir.2006).

The judgment of the district court is therefore Affirmed.

1

. We also note that, even under the Third Circuit approach, evidence of post-offense rehabilitation is considered on remand only in "an unusual case.” See United States v. Lloyd, 469 F.3d 319, 325 (3d Cir.2006) ("[I]t would be an unusual case in which a defendant’s post-sentence rehabilitation efforts following a Booker remand should impact on the sentence. After all, by definition those circumstances did not exist at the time of the original sentence.”); id. (finding that in the case under consideration the court was "unaware of any circumstance that could satisfy the exacting standard that we have set to justify a court in considering post-sentencing rehabilitation efforts following a Booker re-sentencing”).