UNITED STATES of America, Appellee, v. Gamale GIST, Defendant-Appellant, 488 F. App'x 536

SUMMARY ORDER Gamale Gist appeals from the sentence of 262 months imprisonment and 15 years supervised release imposed by the district court on May 6, 2011. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. In Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), the Supreme Court concluded that the revised mandatory minimum sentences of the Fair Sentencing Act of 2010, Pub.L.

No. 111-220, § 2, 124 Stat. 2372 (“FSA”), applied to individuals who had committed their offenses prior to the passage of the Act but were not sentenced until after the August 3, 2010 enactment date. The application of Dorsey in this ease requires that we vacate Gist’s term of supervised release and remand to the district court for re-sentencing consistent with the FSA. See United States v. Highsmith, 688 F.3d 74, 77 (2d Cir.2012).

The government concedes that, had the FSA been applied, Gist would have been subject to a mandatory minimum supervised release term of eight years rather than the 10-year minimum stated in the presentence report. Because there is no unambiguous indication in the record that the district court would have imposed the same 15-year term of supervised release if it had known the FSA was to be applied retroactively, remand for re-sentencing as to that aspect of the sentence is required.

Although Gist urges us to remand for re-sentencing in toto, we decline to do so. “Where we identify procedural error in a sentence, but the record indicates clearly that ‘the district court would have imposed the same sentence’ in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for re-sentencing.” United States v. Jass, 569 F.3d 47, 68 (2d Cir.2009) (quoting United States v. Cavera, 550 F.3d 180, 197 (2d Cir.2008)).

It is clear from the sentencing proceeding that the district court based Gist’s term of imprisonment on his Career Offender status and not on the mandatory minimum under the pre-FSA version of 21 U.S.C. § 841(b)(1)(A). Because, even in light of Dorsey, it is clear the same sentence of imprisonment would have been imposed, the term of imprisonment need not be vacated.

Accordingly, the judgment of the district court with respect to the term of imprisonment hereby is AFFIRMED and the judgment of the district court with respect to the term of supervised release hereby is VACATED and the case is REMANDED for re-sentencing in accordance with this order. .

To the extent the district court determines that the terms of incarceration and supervised release are intertwined such that reconsideration of supervised release requires revisiting the custodial component of Gist’s sentence, on remand the district court should revisit that component and may — but need not — re-sentence Gist with respect to the term of imprisonment as well.