See id. at 22, 25. Ultimately, I sentenced Hines to a term of incarceration that fell at the very bottom of the Guidelines range (262 months), but well above his 15-year mandatory minimum under ACCA. Nothing in the record suggests that I "felt constrained by the statute and might [have] impose[d] a lesser sentence" without ACCA. Cf. United States v. Feldman, 647 F.3d 450, 459 (2d Cir. 2011). Instead, I unambiguously indicated that I "would have imposed the same sentence" irrespective of whether the government sought the statutory sentencing range under ACCA.

It is well established that a fraud victim's wire transfer of funds - induced by a participant in the fraud and transmitted to the fraudster's bank account in furtherance of the fraud - is a use of the wires that may serve as a predicate for a wire fraud conviction. See, e.g., United States v. Vilar, 729 F.3d 62, 94-95 (2d Cir. 2013) ("'use of the mail or wires to obtain the proceeds [of fraud] satisfies the jurisdictional element,' which is to say that the jurisdictional element is fulfilled when the defendant uses the mail or wires to convert the money to his own use") (quoting United States v. Sindona, 636 F.2d 792, 802 (2d Cir. 1980))); United States v. Feldman, 647 F.3d 450, 457 (2d Cir. 2011) (affirming sentence where defendant's convictions on "wire fraud counts were based on two wire transfers by the first [victim], two wire transfers by the fourth [victim], and one wire transfer by the fifth [victim], all to [defendant's] bank account"); United States v. Dupre, 462 F.3d 131, 135 (2d Cir. 2006) (affirming convictions for wire fraud where, in response to defendants' fraudulent scheme to solicit funds, "an undercover FBI agent posing as a money manager . . . wire transferred $1,000 to the defendants' bank account"); United States v. Blackmon, 839 F.2d 900, 903 (2d Cir. 1988) (affirming convictions for conspiracy to commit wire fraud where defendants' scheme involved "two wire transfers of money by the victim from Florida to [defendants' bank account in] New York"); United States v. Sparrow, No. 09 CR. 1197 RWS, 2014 WL 4097634, at *1 (S.D.N.Y. Aug. 19, 2014) (wire fraud and conspiracy to commit wire fraud convictions premised on evidence that defendant and his co-conspirat

The Second Circuit affirmed his sentence on August 1, 2011. See United States v. Feldman, 647 F.3d 450 (2d Cir.2011). Feldman subsequently filed this § 2255 motion on October 24, 2011.

Rather, the totality of the record indicates that the Guidelines calculation "made no difference to [the district court's] determination" of the appropriate sentence. Cf. United States v. Seabrook, 968 F.3d 224, 233-34 (2d Cir. 2020) ("We note that the district court cannot insulate its sentence from our review by commenting that the Guidelines range made no difference to its determination when the record indicates that it did."); United States v. Feldman, 647 F.3d 450, 460 (2d Cir. 2011) (rejecting the conclusion that "criminal sentences may or should be exempted from procedural review with the use of a simple incantation"). III. Special Conditions of Supervised Release

This "unambiguous indication" assures us that any potential error in applying the enhancement was harmless. United States v. Feldman, 647 F.3d 450, 459 (2d Cir. 2011); see United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) ("confidently" finding harmless error where "the district court unequivocally stated that it would impose the same 65-year sentence" regardless of a sentencing enhancement dispute).

But two ambiguous remarks by the district court give rise to some uncertainty about that conclusion. See United States v. Feldman, 647 F.3d 450, 459 (2d Cir. 2011) (stating that appellate court "cannot assume, without unambiguous indication to the contrary, that the sentence would be the same" even absent identified error). First, at Barrett's initial sentencing, after construing § 924(j) to incorporate § 924(c)'s minimum and consecutive sentence mandates, the district court observed that if its decision on that point were to be reversed by this court or the Supreme Court, "then we'll be back here for a resentencing."

This assertion does not control our decision. See, e.g., United States v. Feldman, 647 F.3d 450, 460 (2d Cir. 2011) ("Nor do we believe that criminal sentences may or should be exempted from procedural review with the use of a simple incantation: 'I would impose the same sentence regardless of any errors calculating the applicable Guidelines range.'"). Combined with the full transcript of the sentencing proceedings, however, it does tend to confirm our conclusion that the District Court was focused on the facts and circumstances of McCall's case, as opposed to the recommended length of incarceration based solely on application of the Career Offender Guideline or any other Guidelines provision.

It is apparent that "the record is unambiguous that the district court would issue 'the same sentence' even absent . . . the challenged enhancement[]." United States v. Feldman, 647 F.3d 450, 459 (2d Cir. 2011). It is also clear from the sentencing transcript that the district court had formed a view of the appropriate sentence independent of the applicable sentencing range.

Id. at 110; see id. (stating that "three points for the acceptance of responsibility are really neither here, nor there, in terms of the ultimate sentence that [the court] would arrive at"). Where the district court makes such an explicit and unambiguous declaration that an urged Guidelines adjustment would not affect its ultimate sentence in any event, we need not decide a procedural challenge to the adjustment's omission. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (recognizing where "record indicates clearly that the district court would have imposed the same sentence in any event," any procedural error "may be deemed harmless" (internal quotation marks omitted)); accord United States v. Feldman, 647 F.3d 450, 459 (2d Cir. 2011). Moreover, we are not persuaded by Nales Figueroa's arguments urging us not to take the district court at its word. Rather, as we proceed to explain in addressing Nales Figueroa's substantive reasonableness challenge, the record amply demonstrates that the district court carefully considered all relevant factors in exercising its ultimate discretion to impose an above-Guidelines sentence of 55 months' incarceration to serve the sentencing goals of 18 U.S.C. § 3553(a).

But, we have also cautioned that we will not "lightly assume that" proper attention to the Guidelines "would not affect the sentence." United States v. Feldman, 647 F.3d 450, 460 (2d Cir. 2011). The Court is "especially wary of making such an assumption" where, in the absence of an error, the defendant's Guidelines range would have been substantially lower.