Archive | supervised release

Sunday, June 3rd, 2012

That’s What She Said

United States v. Carthen, No. 10-4817-cr (2d Cir. May 23, 2012) (Winter, McLaughlin, Cabranes, CJJ)

Defenant Tyrone Carthen appealed the government’s reliance on hearsay at his supervised release violation hearing. The circuit, finding no error, affirmed.

Carthen was charged with violating his supervised release by beating and threatening his ex-girlfriend, Marquita Cox. The matter was investigated by Carthen’s probation officer, Darcy Zavatsky, who interviewed Cox and other witnesses, and also reviewed various police and court records. At the VOSR hearing, however, the government called only Zavatsky, who was permitted to, over objection, describe what she had learned. Just before the hearing, it emerged that Cox, who had been cooperative at first, was refusing to testify because she did not want to be respnosible for sending Carthen back to jail. Just after the district court decided the case, Cox submitted a letter to the court asserting that she had …


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Categories: good cause, hearsay, supervised release, Uncategorized

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Thursday, March 15th, 2012

PC World

United States v. Roccisano, No. 10-5237-cr (2d Cir. March 14, 2012) (Katzmann, Parkjer, CJJ, Restani, JCIT) (per curiam)

Guideline section 4A1.1(d) adds two criminal history points if the defendant committed the federal offense while under a criminal justice sentence, e.g., probation, parole or supervised release. The defendant here was deported to Italy in 2006 after completing the prison portion of a federal drug sentence that included a five-year term of supervised release. He was found in the United States in 2010, before the term of supervised release had expired, and the district court assessed those points. On appeal, he argued that this was error, because he had never been actively supervised in light of his deportation.

The circuit rejected this argument, joining at least five other circuits in holding that a term of supervised release is not extinguished by the defendant’s deportation. The court also noted that the amended version …


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Categories: criminal history, supervised release, Uncategorized

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Saturday, August 6th, 2011

To The Manner Porn

United States v. Jennings, No. 10-1642-cr (2d Cir. July 22, 2011) (Kearse, Miner, Chin, CJJ)

For defendant Russell Jennings, looking at child pornography was a hard habit to break. He served a twenty-one-month possession sentence in a 2006 case then, in 2009, while on supervised release, did it again. For the 2009 case, he received a long prison sentence, plus a concurrent supervised release violation sentence on the 2006 case, and a lifetime term of supervised release.

His appellate claims related largely to the way the evidence against him in the 2009 case was developed. He argued that his probation officer was improperly involved in the procurement of the search warrant and criminal complaint, and that incriminating statements he made to the officer were obtained in violation of the Fifth Amendment. The circuit affirmed.

For the first argument, Jennings asserted that his probation officer lacked the statutory and constitutional authority …


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Categories: Fifth Amendment, supervised release, Uncategorized

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Sunday, June 12th, 2011

A Condition Precedent

United States v. Spencer, No. 10-1869-cr (2d Cir. May 20, 2011) (Parker, Pooler, Lohier, CJJ)
Joseph Spencer left much to be desired as a supervised-releasee.
He was originally sentenced to time served and three years’ supervised release for bank fraud, then, after a hearing, the district court found that he, in essence, committed the same crime while on supervision. Spencer was also subject to Standard Condition 6, which required him to “notify the probation officer at least ten days prior to any change in residence or employment,” and the district court also found that Spencer violated Condition 6. The court sentenced him to a total of fourteen months’ imprisonment for everything. While Spencer did not challenge the finding of new criminal conduct on appeal, the circuit agreed that his other violation conduct was not “clearly and specifically forbidden by Condition 6″; it vacated and remanded for resentencing.
The evidence …

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Sunday, August 22nd, 2010

PC World

United States v. Green, No. 08-5548-cr (2d Cir. August 13, 2010) (per curiam)

An unconstitutionally vague condition of supervised release is the theme of this most recent per curiam opinion.

Defendant Green, while serving a long prison sentence for crack cocaine trafficking, was convicted of possessing a weapon and marijuana in prison. As part of his sentence, the judge imposed a condition of supervised release prohibiting him from associating with the Bloods or any other criminal street gang and from “the wearing of colors, insignia, or obtaining tattoos or burn makes relative to” such a gang.

The circuit, upholding the associational prohibition, struck the rest of the condition. The “color prohibition” did not provide Green with “sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate.” One police department manual’s list of gang colors includes white, blue, black or combination of the two, with …


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Saturday, March 27th, 2010

What A Difference A Day Makes

United States v. Janvier, No. 08-5978-cr (2d Cir. March 26, 2010)(Jacobs, Lynch, CJJ, Restani JCIT)

On July 21, 2008, the last day of Janvier’s three-year supervised release term, the probation department submitted a petition to the district court alleging that Janvier had violated the conditions of his supervised release. That same day, the court checked the box on the probation form ordering the “[i]ssuance of a [w]arrant.” The warrant did not actually issue, however, until July 23, 2008. When Janvier appeared in court on the petition he argued that the court lacked jurisdiction to revoke his release because his supervised release term had already expired. The district court disagreed and, after he admitted violating his supervised release, sentenced him to five months’ imprisonment to be followed by thirty-one additional months of supervised release.

On appeal, the circuit reversed based on the “plain language of the governing statute” which only extends …


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Thursday, January 7th, 2010

Circuit to Probation: Three’s a Crowd

United States v. Reeves, No. 08-2966-cr (2d Cir. January 7, 2010) (Leval, Pooler, Parker, CJJ)

Lamont Reeves pled guilty to possessing child pornography. As a condition of his supervised release the district court required that he “notify the Probation Department when he establishes a significant romantic relationship and … inform the other party of his prior criminal history concerning his sex offenses.” It also required that Reeves provide his probation officer with his “significant other’s” contact information.

The court of appeals vacated the condition. First, it agreed that the condition was too vague to be enforceable. “What makes a relationship ‘romantic,’ let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions and genders.” The condition had “no objective baseline” that would give anyone guidance as to what might constitute a “significant romantic relationship” and Reeves’ continued freedom during supervised release should …


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Tuesday, May 5th, 2009

Extension Headache

United States v. Vargas, No. 08-1542-cr (2d Cir. May 5, 2009)(Calabresi, Livingston, CJJ, Restani, JCIT)

In connection with a drug conviction, Raphael Varas was sentenced to a five-year term of supervised release. In January of 2008, he pled guilty to a supervised release violation. At his sentencing, the district judge said “the sentence is going to be six months’ home confinement,” and entered a written judgment providing that Vargas “shall be on supervised release for … [s]ix (6) months home confinement and electronic monitoring.” The court made no mention of any supervised release beyond the period of home confinement.

Two months later, however, the court entered an “Amended Judgment” that contained the same six-month period of home confinement but also continued the original five-year term of supervised release. Vargas appealed from the Amended Judgment, arguing that, since the court revoked his supervised release in January, absent a new violation, the …


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Sunday, September 28th, 2008

Conditional Love

United States v. MacMillen, No. 07-3377-cr (2d Cir. September 23, 2008) (Hall, Livinston, CJJ, McMahon, DJ)

MacMillen pled guilty to possessing child pornography, and the court sentenced him to seventy-eight months’ imprisonment and supervised release for life. On appeal, he complained about two of the conditions of his supervised release: a prohibition on his being anywhere “where children are likely to congregate,” and his probation officer’s ability to address “third-party risk issues” with MacMillen’s employers.

The circuit found no abuse of discretion. The court found the first condition was not overbroad, because it was expressly limited only to places where children are likely to congregate; there is simply nothing in the condition that indicates that MacMillen is forbidden from entering areas where children are unlikely to be. Nor is the condition improperly vague; it gives adequate notice of what conduct is prohibited.

MacMillen next complained that the third-party risk condition …


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Categories: sex offenses, supervised release, Uncategorized

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Saturday, April 19th, 2008

Unconditioned

United States v. Gill, No. 07-0284-cr (2d Cir. April 17, 2008) (Cabranes, Sotomayor, Wesley, CJJ) (per curiam)

Gill, who pled guilty to making false statements in a health care matter, unsuccessfully challenged two of his special conditions of supervised release. The first, which barred him from “engaging in the business of counseling,” was reasonably related to the need to protect the public, since Gill had in the past falsely represented himself as qualified to provide mental health services, when in fact he was not. The other condition – a requirement that he continue making restitution payments arising from an earlier condition – was likewise proper because it was reasonably related to his history and characteristics…


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Sunday, September 23rd, 2007

Notice No-No’s

United States v. Hargrove, No. 06-4276-cr (2d Cir. August 16, 2007) (Feinberg, Calabresi, Wesley, CJJ).

Terrence Altman had pled guilty to a drug misdemeanor (yes, there are drug misdemeanors), but violated his supervised release by using cocaine. While awaiting sentencing on that violation, he tested positive again. He admitted to that violation as well and, in all, faced a three to nine month revocation range. However, Judge McMahon sentenced him to one year in prison, without giving notice of her intention to upwardly depart.

On appeal, he argued that he should have been entitled to notice of the court’s intention to impose a sentence higher than recommended by the Chapter 7 policy statements. The Circuit affirmed.

The court began by noting that, ten years ago, it had held that there was no right to such notice, because revocation sentences are governed by Chapter 7 policy statements, and these non-binding policy …


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Categories: departure, guideline, notice, policy statement, supervised release, Uncategorized

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