UNITED STATES of America, Appellee, v. Tabari FACEN, Defendant-Appellant, 693 F. App'x 68

SUMMARY ORDER Tabari Facen appeals from the judgment of the United States District Court for the Western District of New York (Larimer, J.) sentencing him to ten years’ imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We affirm because any delay in giving Facen a copy of his Presen-tence Report (“PSR”) was harmless error. In 2013, Facen was convicted after a jury trial on various gun and drug counts.

The district court then partially overturned the jury verdict by granting a partial motion for acquittal, and it sentenced Facen to 41 months’ imprisonment on the surviving counts of conviction. On appeal, this Court vacated the district court’s ruling of acquittal and remanded the case for resentencing. United States v. Facen, 812 F.3d 280, 290 (2d Cir. 2016). This Court’s decision triggered a mandatory minimum, and Facen was resentenced to ten years’ imprisonment on July 13, 2016. Federal Rule of Criminal Procedure 32(

e) requires that the probation officer “give the presentence report to the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing.” While Facen’s attorney received the PSR several months before the July 13, 2016 resentencing, Facen himself only received a copy of the PSR 30 days before the sentencing date. Facen challenges his sentence on the basis of that five-day gap between the date he was supposed to receive the PSR and the date he actually received it.

We see no good reason why—when the defendant asked and the rule expressly required—the district court did not adjourn for five days. However, procedural sentencing mistakes such as this one are subject to harmless error review. United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009). Facen’s counsel had the PSR several months before sentencing, Facen himself had the PSR 30 days before sentencing, and the 2016 PSR was virtually identical to the one from 2013.

It is clear that the district court would have sentenced Facen to the same prison term even if he had received the PSR five days earlier, and the error is therefore harmless. Id. For the foregoing reasons, and finding no merit in Facen’s other arguments, we hereby AFFIRM the judgment of the district court.