Archive | supervised release

Monday, March 18th, 2024

Special conditions of supervised release must be based on an individualized assessment of the defendant and adequately explained.

In two recent decisions, the Second Circuit reiterated the requirements for imposing special conditions of supervised release: a sentencing court must undertake an “individualized assessment” of the defendant and “state on the record the reason for imposing” any special condition. The failure to do so is error.

In United States v. Alex Oliveras, No. 21-2954, — F.4th — (2d Cir. March 15, 2024), the Circuit vacated a special condition allowing the federal probation officer to conduct suspicionless searches of the defendant and his property.

The defendant argued, first, that this special condition violated the Fourth Amendment, and, second, that it was not adequately justified on the record.

The Circuit recognized that individuals on supervised release have a diminished expectation of privacy, and that probation officers have a legitimate need to fulfill their supervisory duties by conducting searches. At the same time, supervisees retain Fourth Amendment rights and conditions infringing …


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Categories: Fourth Amendment, special needs, supervised release

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Thursday, December 7th, 2023

Circuit Vacates Two Supervised Release Conditions

In United States v. Rodriguez, No. 22-1820-cr (2d. Cir. Dec. 7, 2023) (summary order), the Circuit (Kearse, Calabresi, and Nathan) vacated two drug- and alcohol-related special conditions on plain error review.

At sentencing, the district court imposed a condition requiring Rodriguez to undergo drug treatment evaluation, and “if deemed necessary,” attend outpatient drug treatment. The written judgment, however, imposed an unconditional drug treatment requirement, without the evaluation component. The Court vacated the written condition due to its conflict with the district court’s oral pronouncement at sentencing, which “ordinarily controls”; “a defendant must be present at pronouncement of sentence.” It remanded for entry of judgment consistent with the oral sentence.

The district court also imposed a condition that Rodriguez abstain from alcohol during the aforementioned treatment. While the government agreed that the treatment condition should be vacated unless an evaluation deemed it necessary, it argued that the alcohol provision could …


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Categories: sentencing, supervised release

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Tuesday, November 14th, 2023

In a summary order, the Second Circuit vacates a district court’s judgment imposing a complete ban on internet use, as a condition of supervised release. The Circuit concludes that it’s “substantively unreasonable” to impose such a ban on someone whose offense involved child pornography, and no evidence suggested he “is likely to seek out children on social media or prey on them in reality.” United States v. Gonyea, Nos. 22-1722-cr, 22-1727-cr (2d Cir. Nov. 13, 2023) (C.J.J.’s Jacobs, Lohier, Lee) (“Summary Order”).

I. Background

In 2017, Appellant was convicted of one count “of receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1)” and sentenced to 72 months’  imprisonment “and a life term of supervised release.” Order at 3.

In 2021, after his release from custody, Probation Officers discovered that he had “created two email accounts but failed to disclose them to the New York State Division of Criminal Justice Services,” as required by the terms of his supervised release. Id. Probation Officers also “seized an unauthorized cell phone . . . containing at least three images of child pornography.” Order at 3-4.

After Gonyea admitted to several supervised release violations, the district court revoked his supervised release and sentenced him to a term of imprisonment “and a new life term of supervised release.” Order at 4. In addition, he “separately  pleaded guilty . . . to one count of …


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Categories: child pornography, Sex offender registration, substantive unreasonableness, supervised release

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Friday, August 4th, 2023

De novo resentencing required after district court imposed a supervised-release term, following revocation, that exceeded the statutory maximum

In United States v. Sire Gaye, 2d Cir. No. 22-251-cr (August 4, 2023), the panel (Judges Park, Nardini, and Nathan) issued a per curiam opinion vacating the district court’s revocation sentence and remanded for de novo resentencing. Although only the supervised-release portion of the revocation sentence was unlawful – the five-year term exceeded the statutory maximum – the Court decided that, instead of simply lowering that term to the true maximum (18 months) and leaving alone the imprisonment portion of the sentence (three years’ imprisonment) – as the Government wanted — the district court should decide in the first instance how to apportion the imprisonment and supervised release portions of its revocation sentence on remand (as Gaye desired).

Here’s the gist. Gaye pleaded guilty to bank fraud in 2018 and was sentenced to two months’ imprisonment followed by five years of supervised release – the statutory maximum. The court …


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Categories: plain error, supervised release

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Monday, July 10th, 2023

Circuit vacates condition of supervised release that limited defendant to possessing only one “Internet-capable device,” which the Probation Department could search at any time.

In United States v. Salazar, No. 22-1385-cr (2d Cir. July 6, 2023) (Livingston, Chin, Kahn) (summary order), my colleague Sarah Baumgartel persuaded the Circuit that the District Court committed reversible error by imposing a special condition of supervised release that prohibited the defendant from possessing more than one “personal Internet-capable device” and authorized the Probation Department to monitor all the data on that device at any time and for any reason.

The defendant had pleaded guilty to one count of possessing child pornography. At sentencing, the court imposed 30 months’ imprisonment plus 5 years’ supervised release. One of the conditions of supervised release prohibited the defendant from possessing more than one “personal Internet-capable device” and authorized the Probation Department to search that device at any time  and for any reason.

On appeal, the Circuit vacated this condition. It held that the condition was “neither narrowly tailored nor carefully explained.” …


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Categories: child pornography, supervised release

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Monday, May 22nd, 2023

Circuit construes supervised-release conditions (restricting or monitoring computer and Internet use) in the defendant’s favor in order to avoid constitutional, statutory, or delegation problems

In United States v. Victor Kunz, 2d Cir. No. 21-2577-cr (May 23, 2023), Judge Lynch (joined by Judges Livingston and Calabresi) upheld (with one exception) several potentially problematic conditions of supervised release restricting or monitoring Kunz’s computer and Internet usage. Kunz was convicted of CP possession in 2005 and has been on supervised release since 2009 (with several violations (and terms of imprisonment) between then and his current 33-year term of supervision). The Circuit acknowledged that he “raise[d] a number of legitimate concerns” on appeal, but ultimately concluded that “a sensible reading of the restrictions neutralizes the most troubling of those concerns” and thus affirmed the “judgment of the district court as construed in the manner set forth below.” Op. 3.

The relevant conditions / restrictions fall into three categories. Here’s how the Court dealt with them.

Conditions that are “technically vague or unworkable”

Kunz challenged several conditions requiring …

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Tuesday, January 17th, 2023

The government’s use of a former cellmate’s testimony to introduce a defendant’s statements about his planned trial strategy didn’t violate the Sixth Amendment right to the effective assistance of counsel where the witness wasn’t a government informant when the defendant confided in him. Also, a federal probation officer’s warrantless search of the home and car of a person “serving a term of supervised release” didn’t violate the Fourth Amendment because the probation officer needed only a “reasonable suspicion” to search, not a warrant or probable cause. United States v. Chandler, No. 18-1841, 56 F.4th 27 (2d Cir. [Dec. 27,] 2022) (C.J.J.’s Lynch, Carney, and Sullivan).

This appeal addresses a Fourth Amendment claim raised in the context of a Probation Officer’s search of the home and car of  “an individual serving a term of supervised release.” The Circuit concludes that the searches were valid because the Probation Officer had a “reasonable suspicion” that the defendant was committing crimes.

The case also addresses the scope of a defendant’s Sixth Amendment right to the effective assistance of counsel “when the government presents a witness to whom the defendant has volunteered his thoughts about defense strategy and who, after learning the defendant’s thoughts, agrees to testify for the government.” Here, the government witness was a person who shared a jail cell with the defendant, during a two-week period of pretrial detention, and later became a government informant. Because the witness “was not a government informant when Chandler spoke to him about Chandler’s expected trial strategy, the government did not …


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Categories: Fourth Amendment, reasonable suspicion, Sixth Amendment, supervised release

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Tuesday, March 15th, 2022

District court can’t delegate inpatient treatment decision, but Hobbs Act restitution order stands.

In a March 14, 2022 summary order, the Second Circuit reiterated the limits of a district court’s authority to delegate decisions about supervised release to the Probation Department. In United States v. Ely, No. 17-3081-cr, the court imposed a special condition of release requiring the defendant to complete “outpatient and/or inpatient drug treatment.” This wording left it to the Probation Department to decide which. But because inpatient treatment “entails a significantly greater restriction on a defendant’s liberty than outpatient treatment,” the district court was not permitted to delegate this decision to Probation. The Circuit accordingly vacated this portion of the defendant’s sentence.

In the same order, the Circuit declined to find that the district court plainly erred by imposing restitution under the Mandatory Victims Restitution Act (MVRA) for a Hobbs Act robbery conspiracy. As relevant here, the MVRA mandates restitution for any “crime of violence,” as defined in 18 …


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Categories: delegation, restitution, supervised release

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Wednesday, May 26th, 2021

Twenty-year term of supervised release neither procedurally nor substantively unreasonable

In United States v. Joseph Williams, No. 20-1021 (2d Cir. May 26, 2021), a Panel of the Court (Pooler, Sullivan, and Park) ruled in a per curiam opinion that Williams’s 20-year term of supervised release, to follow a 160-month term of imprisonment, was neither procedurally nor substantively unreasonable on plain-error review. Williams argued principally that the term of supervised release was procedurally faulty because the district court violated 18 U.S.C. § 3553(c), requiring a sentencing court to “state in open court the reasons for its imposition of the particular sentence . . . .” Specifically, while the court the explained the basis for the chosen term of imprisonment (and discussed the § 3553(a) factors in so doing), it “did not separately explain the factors [in] imposing the term of supervised release.” Op. 4.

The Court found “no procedural error in the district court’s failure to separately explain the basis …


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Categories: plain error, supervised release

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Tuesday, May 25th, 2021

Circuit strikes a special condition of supervised release requiring the defendant to participate in a “restorative justice program” as vague and as delegating judicial authority to the Probation Office

In United States v. Patrick W. Carlineo, 2d Cir. No. 20-1020 (May 25, 2021), a Panel of the Court (Parker, Lohier, and Menashi) invalidated a special condition of supervised release requiring the defendant to “participate in a program known as the Partners in Restorative Initiatives” as too vague and as delegating too much authority to the Probation Office. Judge Parker’s opinion does not invalidate all such conditions. Rather, the takeaway is that if a district judge wishes to impose a restorative-justice-related condition of supervision, the judge must specify the details of the program — preferably one vetted by the Probation Office — and indicate specifically what the defendant must do to satisfy the condition and avoid violation.

Carlineo pleaded guilty to threatening Congresswoman Ihlan Omar and to possessing a gun after a felony conviction. Before sentencing, the district court received an unsolicited letter “from Will Bontrager, who identified himself …

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Wednesday, August 26th, 2020

Reliability challenge to a new testing technique, “computerized voice stress analyzer,” to verify compliance with supervised release, is not ripe for review until supervision begins.

In United States v. Birkedahl, No. 19-2304 (2d Cir. Aug. 25, 2020), the Second Circuit (Sullivan, joined by Park and Nardini)) rejected a challenge to a special condition of supervised release requiring testing by “computerized voice stress analyzer (CVSA)” to verify the defendant’s compliance with conditions in a child pornography possession case. Birkedahl had contested the scientific reliability of this technique and asked for a hearing, which was denied. The Court of Appeals held that the challenge was not “ripe” for review because the technology was rapidly evolving and could advance in the year before it would be used in Birkedahl’s supervision. Since Birkedahl will not be harmed by the test until it is used to monitor his supervised release, the Court held that he may challenge it when his supervision begins and will not be disadvantaged by the Court’s foregoing review until that time.

The court also rejected …


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Categories: ripeness, supervised release

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