
    UNITED STATES of America, Appellee, v. Wendy BROWN, Joy Brown, Tarelle Jones, Timothy Jones, Gary Davis, Keisha Anderson, Taniesha Moore, Raymond Wainwright, Vere Joseph, Defendants Paul Creary, Curlene Reid, Defendants-Appellants.
    Nos. 06-2233-cr, 06-5029-cr.
    United States Court of Appeals, Second Circuit.
    May 27, 2008.
    
      Marilyn g. Reader, Larchmont, N.Y., for Appellant
    Christopher L. LaVigne, Assistant Unite<^ Attorney (Katherine Polk Failla, Assistant United States Attorney, on the brief) f°r Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee,
    CHESTER j gTEAtJB ROC™MAr>vq phot wr qomta SOTOMAYOR, Circuit Judges. ^
   SUMMARY ORDER

This case involves an appeal by Defendantr-Appellant Curlene Reid, in part counseled, and in part pro se, and a motion by Defendant-Appellant Paul Creary’s counsel to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We address Defendant Creary’s counsel’s An^ers motion in a separate order, where we DEFER the motion and ORDER addition-al briefing; furthermore, pursuant to that order, Defendant Paul Creary’s appeal is unconsolidated from the appeal of Defendant Curlene Reid. We therefore limit our analysis below to the merits of Defendant Reid’s appeal.

In January 2006; a jury convicted Reid of the crime charged in her indictment: one count of conspiracy to produce and transfer false identification documents, in violation of 18 U.S.C. § 1028(a)(1), (a)(2), and (f). Prior to sentencing, the United States Probation Officer prepared a PreSentence Report (“PSR”) which determined that Reid’s guideline sentence should be determined by using a base offense level of 11 pursuant to U.S.S.G. § 2L2.1(a), an enhancement of nine levels because the conspiracy involved more than 100 documents, pursuant to § 2L2.1(b)(2)(C), and a Criminal History Category of I. Relying on these determinations, the PSR calculated a guideline range of 33 to 41 months’ imprisonment, and recommended a sentence of 33 months’ imprisonment. Defendant-Appellant Reid objected to certain factual findings and guideline calculations in the PSR and sought downward adjustments and departures. We assume the parties’ familiarity with the remaining facts,_ proceedings below, and specification of issues on appeal,

Defendant Reid first argues that the district court erred in refusing to give her a two-level reduction in her offense level under U.S.S.G § 3B1.2(b). “[W]e are mindful that a sentencing court’s assessment of the defendant’s role in criminal activity is highly fact-specific and depends upon the nature of the defendant’s relationship to other participants, the importance of the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise.” United States v. Carpenter, 252 F.3d 230, 234 (2d Cir.2001)(internal quotation marks and citation omitted). Furthermore, “[t]he defendant bears the burden of establishing by a preponderance of the evidence that he is entitled to a mitigating role adjustment under section 3B1.2 of the Sentencing Guidelines.” Id. We have said that “[a] reduction [pursuant to U.S.S.G. § 3B1.2] will not be available simply because the defendant played a lesser role than his co-conspirators; to be eligible for a reduction, the defendant’s conduct must be ‘minor’ or ‘minimal’ as compared to the average participant in such a crime.” United States v. Rahman, 189 F.3d 88, 159 (2d Cir.1999) (per curiam),

“As to facts disputed in connection with sentencing, the court is required to make findings sufficient to permit appellate review.” United States v. Thompson, 76 F.3d 442, 456 (2d Cir.1996); see also United States v. LaValley, 999 F.2d 663, 666 (2d Cir.1993). “It is sufficient for these purposes if the court indicates, either at the sentencing hearing or in the bitten judgment, that it is adopting the recommendations in the PSR.” Thompson, 76 F.3d at 456. Here, the district court stated in its bitten Statement of Reasons for the sentence that it was adopting the factual fí^gs of the PSR with one change not relevant on appeal. Because the findings of the PSR were sufficient to support the district court’s decision to deny Reid’s request for a minor role adjustment, Carpenter, 252 F.3d at 235, we deny Reid’s challenge to the district court’s decision not to grant her a two-level reduction for her role in the offense,

Defendant next argues that the district court erred “ enhancing her base offense level by nine levels 011 the grounds that she was accountable for 100 or more fraudulent documents. See U.S.S.G. § 2L2.1(b)(2)(C). “The government must prove and the district court must find a fact relevant to sentencing by a preponderanee of the evidence.” United States v. Proshin, 438 F.3d 235, 238 (2d Cir.2006) (per curiam). We review a district court’s factual findings that an offense involved a certain number of documents for clear error. Id. “It is ... well established that this Court requires a district court to make two particularized findings before a defendant may be held accountable for his co-conspirators’ acts[:] ... 1) that the acts were within the scope of the defendant’s agreement and 2) that they were foreseeable to the defendant.” United States v. Johnson, 378 F.3d 230, 238 (2d Cir.2004) (emphasis added) (internal citation and quotation omitted). It is important to note ¿i. a « j * j a» i i j £ that a defendant s knowledge of another ... ,, ..... , , , participant s criminal acts is not enough to hold the defendant responsible for those acts” and “the fact that the defendant is aware of the scope of the overall operation is not enough to hold him accountable for the activities of the whole operation. The relevant inquiry is what role the defendant agreed to play in the operation, either by an explicit agreement or implicitly by his conduct.” United States v. Studley, 47 F 3d 569 575 (2d Cir.1995)

Where the sentencing judge does not clearly resolve the factual dispute, we must remand for further findings. See United States v. Reed, 49 F.3d 895, 901 (2d Cir.1995). Here, the district court did not make particularized findings at the sentencing hearing as to either the scope of the criminal activity agreed to by Reid or that the conduct by Reid’s co-conspirators was reasonably foreseeable to Reid; the district court’s Statements of Reasons, however, did state that it was adopting the factual findings of the PSR. Nonetheless, the factual findings of the PSR are insufficient to satisfy the district court’s obligation to make particularized findings with respect to relevant conduct: the PSR does not make any such particularized findings but rather assumes the Government’s position that Reid should be held accountable for the distribution of 100 or more documents, without providing additional evidence to support this assertion, and without providing the necessary two-step analysis outlined above. This is not sufficient to meet our requirements for particularized findings under United States v. Johnson; we therefore must remand Reid’s sentence to the district court so that it can make particularized findings as to whether Reid should be held accountable for 100 or more fraudulent documents.

Finally, Reid argues that her sen- •” tence is unreasonable and excessively long, b We review Guidelines and ^-Guidelines saentences !or reasonableness. See United States v. Fernandez 443 F.3d 19, 26 (2d Cir.2006). Reasonableness review involves first ensuring] that the district court committed no significant procedural error, such as failing to calculate (or imProPeriy calcuMing) the Guidelines range’ fcreating the Gmdelmes as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.... ” Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). As far as procedural reasonableness is concerned, “we presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors.” Fernandez, 443 F.3d at 30. While the district court is required to consider the factors of § 3553(a), United States v. Florez, 447 F.3d 145, 157 (2d Cir.2006), “no specific verbal formulations should be prescribed to demonstrate the adequate discharge of the duty to ‘consider’ matters relevant to sentencing. As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration has occurred.” United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005). Here, the district court stated that it had read and re-read Reid’s sentencing memorandum, which contained the requests for all of the departures and adjustments that Reid sought; the district court stated that it had taken into account the guidelines and defense counsel’s arguments concerning both the guidelines and the § 3553(a) factors; and finally the district court concluded that it did not agree with the defendant’s objections to the PSR, but rather, adopted, basically, the calculations suggested by the probation department.” This is sufficient to meet our requirements for procedural reasonableness.

Furthermore, while Reid chailenges the district court’s denial of her downward departure requests for family circumstances and aberrational behavior, such a determination is generally not appealable unless the sentencing court misunderstood the scope of its authority to depart. See United States v. Valdez, 426 F.3d 178, 184 (2d Cir.2005). Here, there is no indication that the district court misunderstood the scope of its authority, and thus the district court’s denial of Reid’s request for a downward departure is not appealable.

Reasonableness review also requires us to “consider the substantive reasonableness of the sentence imposed.” Gall, 128 S.Ct. at 597. In doing so, we “take into account the totality of the circumstances,” id., and “give due deference to the district court’s weighing of the § 3553(a) factors,” id. (internal quotation marks omitted). Here, the district court sentenced Reid to a term of imprisonment within the applicable guidelines range of 33 to 41 months. However, the guideline range was based upon a nine level enhancement, for which the district court failed to make particularized findings, and thus we are required to remand to the district court for further proceedings. In light of our remand, we defer decision on the substantive reasonableness of Reid’s sentence.

Reid also argues, in a pro se brief, that she received ineffective assistance of counsel. The Supreme Court has made clear its preference that we not decide claims of ineffective assistance of counsel on direct appeal, but rather leave them for motions pursuant to 28 U.S.C. § 2255. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Since Massaro, we have clarified that: “[wjhen a criminal defendant on direct appeal asserts trial counsel’s ineffective assistance to the defendant, as the defendant does here, we may (1) decline to hear the claim, permitting the appellant to raise the issue as part a subsequent [28 U.S.C.] § 2255^ [motion]; (2) remand the claim to the district court for necessary fact-finding; or (3) dec^e the claim on the record before us. United States v. Doe, 365 F.3d 150, 152 (2d Cir.2004) (internal quotation marks omitted). Our review of ineffective assistance °t counsel claims is discretionary and “should not be invoked lightly.” United States v. Salameh, 152 F.3d 88, 161 (2d Cir.1998) (per curiam). Given our “baseline aversion to resolving ineffectiveness claims on direct review’” id" we decline to address Reid s ineffective assistance claims on this direct appeaL Reid remaüis free to pursue these clairas on a § 2255 motion’ To the extent Reid raises a distinct claim based upon allegations of perjured testithis claim is’ as the government ar^es’ untimely, see Fed.R.Crim.P. 33(b)(2)- and, in any event’ meritless, see United States v. McCarthy, 271 F.3d 387, 399-400 (2d Cir.2001).

For the foregoing reasons, we REMAND defendant’s sentence to the district court for further proceedings consistent ^th this opinion,  