Archive | supervised release

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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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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Tuesday, February 11th, 2020

Second Circuit Rules That No Statement of Reasons Is Required For a VOSR Sentence.

In United States v. Smith, __ F.3d __ , 2020 WL 521612 (Feb. 3, 2020) (Wesley, Chin, Sullivan), the Court of Appeals held that no Statement of Reasons (“SOR”) need be filed for a sentence imposed in a VOSR, even if it is above the Guidelines range, because the Sentencing Commission has not provided an SOR form for a VOSR. The Court overruled its prior precedent holding that a Statement of Reasons was required for a VOSR sentence, e.g. United States v. Aldeen, 792 F.3d 247, 251-52 (2d Cir. 2015); United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007), after a “mini-en banc” procedure of circulating the opinion to all active members of the Court. The Second Circuit reasoned that the prior rule was based on an earlier version of the 18 U.S.C. §3553(c)(2) which was amended in 2010. Unlike the former statute, which required


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Categories: sentencing, statement of reasons, supervised release

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Tuesday, October 29th, 2019

Circuit Strikes Supervised Release Condition Based on Variation from Pronounced Sentence

A criminal defendant has the right to be present at the pronouncement of sentence. “Therefore, after a sentence has been pronounced, the written judgment may clarify the terms of the spoken sentence, but may not add to them.” If there is a substantive difference between the spoken and written versions of a sentence, the spoken version ordinarily controls.

Based on this rule, in United States v. Dodd, 18-2320 (2d Cir. Oct. 28, 2019), the Second Circuit ordered the district court to strike a condition of supervised release that the court had added to the written judgment, but which it had not imposed orally at sentencing. The condition prohibited the defendant from maintaining or opening any bank or financial accounts without approval from his probation officer. Because the condition had not been part of the oral sentence, on appeal the government conceded that it must be vacated.

In the same …


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Monday, August 19th, 2019

Second Circuit Vacates Excessive Community Service Condition

Today in United States v. Parkins, No. 18-1019 (2d Cir. Aug. 19, 2019), the Second Circuit—for the second time—reversed a district court’s imposition of more than 400 hours of community service as a special condition of supervised release.

Back in 2017, the defendant was sentenced to time served and three years of supervised release for his role in bank and health care fraud conspiracies. As a special condition of supervised release, the district court imposed 300 hours of community service per year, for a total of 900 hours.

The defendant appealed, arguing that this amount of community service violated 18 U.S.C. § 3583(d) because it was not reasonably related to any legitimate statutory purpose of supervised released; it involved a greater deprivation of liberty than reasonably necessary; and it was inconsistent with Sentencing Guidelines Section 5F1.3 Application Note 1, which states that community service “generally should not be imposed …


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