UNITED STATES of America, Appellee, v. Timothy GIVENS, also known as Florida Tim, Defendant-Appellant, 374 F. App'x 223

SUMMARY ORDER Defendant-appellant Timothy Givens (“defendant” or “Givens”) appeals from the District Court’s order dated December 10, 2008 declining to resentence defendant and adhering to its original sentence of 480 months’ imprisonment. We briefly recount the post-conviction procedural history of the case, but we assume the parties’ familiarity with the remaining factual and procedural history.

Givens was convicted in 2002 of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846 (Count 2) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 3). The District Court sentenced defendant to 420 months’ imprisonment on Count 2 and imposed a consecutive sentence of 60 months’ imprisonment on Count 3. See 18 U.S.C. § 924(c)(l)(A)(i). Defendant appealed both his conviction and sentence to this Court. We affirmed defendant’s conviction but, in light of the Supreme Court’s intervening decision in United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we remanded for further proceedings pursuant to our opinion in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). See United States v. Givens (Givens I), Nos. 03-1109-cr et al., 2005 WL 1317015 (2d Cir. June 1, 2005). On remand, the District Court determined that its original sentence would not “have been nontrivially different under the post-Booker [ ] regime,” Crosby, 397 F.3d at 119, and, accordingly, declined to vacate its original sentence. Defendant again appealed his sentence to this Court. In a second

summary order dated July 18, 2008, we remanded in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and pursuant to this Court’s decision in United States v. Regalado, 518 F.3d 143 (2d Cir.2008). See United States v. Givens (Givens II), Nos. 05-5189-cr et al., 2008 WL 2796341, at *3 (2d Cir. July 18, 2008).

Regalado adopted Crosby’s procedure of remanding sentences to allow the District Court (1) to consider whether it would have imposed a different sentence in light of intervening Supreme Court precedent, and, (2) if so, to vacate the original sentence and resentence the defendant. See Regalado, 518 F.3d at 149. Although we indicated that we were remanding Givens’ sentence “pursuant to” Regalado, our

summary order “vacated” his original sentence and remanded the case “for full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3. Thus, despite purporting to remand “pursuant to” Regalado, we did not, in fact, follow the procedure set forth in Re-galado and Crosby. On remand for the second time defendant argued that, pursuant to our July 18, 2008 order, the District Court was required to conduct a full resentencing.

After hearing argument from both parties the District Court concluded that our order did not require a full resentencing but, rather, permitted the use of the more limited procedures set forth in Regalado and Crosby. Accordingly, the District Court declined to conduct a full resentencing and it adhered to its original sentence of 420 months’ imprisonment on Count 2. Defendant has again appealed his sentence to this Court, arguing that (1) a remand is required under the intervening decision in United States v. Williams, 558 F.3d 166, 168 (2d Cir.2009) (holding that “the mandatory minimum sentence under

Section 924(c)(1)(

A) is ... inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense”), and (2) the District Court erred in not conducting a full resentencing pursuant to this Court’s July 18, 2008 order. The government concedes that a remand for resentencing is required under Williams, but asks us to hold this appeal in abeyance until a petition for a writ of certiorari filed in Williams is acted upon or that case is heard by the Supreme Court.

We conclude that a remand for full re-sentencing is required pursuant to our July 18, 2008 order. As noted above, our July 18, 2008

summary order remanding defendant’s case for further proceedings was far from clear. Ordinarily, when we remand a sentence pursuant to Regalado, the decision to vacate the original sentence is left to the District Court. See 518 F.3d at 149. In this case, however, we vacated the original sentence and remanded pursuant to Regalado. Moreover, we ordered a “full re-sentencing” for defendant. See Givens II, 2008 WL 2796341, at *1, *3.

Although remands based on a “specific sentencing error” are not ordinarily subject to a full resentencing, “we must look to both the specific dictates of the remand order as well as the broader spirit of the mandate” to determine the proper scope of proceedings on remand. United States v. Quintieri, 306 F.3d 1217, 1227 (2d Cir.2002) (internal quotation marks omitted). Here, the remand order explicitly stated that Givens’ sentence was vacated and required the District Court to conduct a “full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3 (emphasis added).

Thus, despite the ordinary procedure called for in Regalado, we conclude that the District Court was required to comply with the specific terms of our July 18, 2008 order and conduct a full resentencing of Givens. We therefore remand for a full resen-tencing in accordance with our July 18, 2008 order. We note that the District Court may, in its discretion, wish to postpone resentencing until the petition for a writ of certiorari in United States v. Williams is acted upon or the issue is decided by the Supreme Court.

CONCLUSION In accordance with the foregoing, we REMAND the cause for full resentencing consistent with this order.