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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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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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Categories: sentencing, supervised release, Uncategorized

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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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Categories: sentencing, supervised release

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Monday, June 3rd, 2019

Pretrial detention later credited against a term of imprisonment imposed upon conviction tolls period of supervised release under § 3624(e)

Section 3624(e) of Title 18 of the U.S.C. provides that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The question sometimes arises as to whether pretrial detention similarly tolls the term of supervised release. Although pretrial detention is not, on first look, a “period in which the person is imprisoned in connection with a conviction” for a crime, things look murkier when considered retrospectively. This is because courts often, upon the defendant’s subsequent conviction for the offense for which he was detained pretrial, credit that period of detention against the term of imprisonment ultimately imposed. Indeed, § 3585(b) requires such credit in federal cases.

Today the Supreme Court ruled in Mont v. United States, Sup. Ct. …

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Wednesday, May 8th, 2019

Circuit Vacates Special Condition of Supervised Release

The Second Circuit today vacated a special condition of supervised release and remanded for further proceedings. In United States v. Smith, which you can read here, the Circuit relied on its recent decision in United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). In Betts, the Court held that “A District Court is required to make an individualized assessment when determining whether to impose a special condition of supervised release, and to state on the record the reason for imposing it.” Where the district court does not give the reason, the special condition can survive appeal “only if the district court’s reasoning is ‘self-evident in the record.'” Opinion at 3 (quoting Betts). In Smith, the district court imposed a special condition that prohibited Smith from consuming alcohol, but made no individualized assessment in determining whether to impose that condition. The district court’s comment …

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Friday, November 9th, 2018

Judge Weinstein on Alcohol-Related Supervised Release Violations

Judge Weinstein issued an opinion this week terminating the supervised release of a defendant who violated a standard condition of release by consuming alcohol while in a drug treatment program. See United States v. Thomas, No. 15-cr-382, DE 575 (Nov. 6, 2018), available here. The opinion builds on Judge Weinstein’s more extensive opinion in United States v. Trotter concerning violations of supervised release for marijuana use. As Judge Weinstein urged in Trotter, practitioners should move to modify or terminate supervised release where the defendant’s only violations consist of minor infractions. (Indeed, Judge Weinstein suggests in Trotter that practitioners should move for termination of supervised release in all cases where the defendant has completed one year of supervision.)

As is customary with Judge Weinstein, the opinion’s introduction provides an excellent synopsis of its analysis:

The instant memorandum considers [an] important issue in supervised release: what to do with

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Tuesday, July 10th, 2018

Judge Weinstein Urges More Frequent Termination of Supervised Release (Including for Marijuana Users)

Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for those not intimately familiar with the law governing supervised release.

The opinion in Trotter made headlines for Judge Weinstein’s commitments to avoid punishing supervisees for marijuana use, and to terminate supervised release for marijuana users who are otherwise rehabilitated.  Equally relevant to practitioners, however, is Judge Weinstein’s more general critique of excessive supervision. Particularly important is Judge Weinstein’s suggestion that the defense bar move more frequently for termination of supervised release in the interest of justice pursuant to 18 U.S.C. § 3583. Indeed, Judge Weinstein urges practitioners to move for termination of supervised release …

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Categories: marijuana, sentencing, sentencing findings, supervised release

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Friday, May 4th, 2018

Second Circuit Vacates Imposition of Lifetime Supervised Release

It’s been a busy week for the Second Circuit. On Wednesday, the Circuit reversed a sentence imposing a life term of supervised release for a defendant who had initially been convicted of drug offenses. See United States v. Brooks, No. 16-4063 (2d Cir. 2018) (per curiam) (Parker, Lynch, Chin) (appeal from Kaplan, J., SDNY). The opinion, available here, contains great language for use at sentencings and appeals.

The defendant in Brooks had initially pled guilty to distributing and possessing with intent to distribute cocaine and heroin, in violation statutes including 21 U.S.C. § 841(a)(1). After release from prison, he was charged with numerous supervised release violations, and pled guilty to violating three conditions related to drug use. At his revocation hearing, the defendant’s attorney noted the defendant’s “serious drug problem” as a “huge underlying and contributing factor” to his violations. Neither the government nor Probation recommended a specific …

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Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release

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Thursday, March 29th, 2018

Opinion Reversing Alcohol-Related Supervised Release Condition

Yesterday the Second Circuit issued a short opinion reversing a special condition of supervised release requiring the defendant to abstain from any alcohol while on supervision. The opinion in United States v. Betts, No. 17-231 (Leval, Calabresi, Cabranes) (reversal from WDNY) is available here. (The Second Circuit recently issued a summary opinion that reached the same conclusion on plain error review).

The defendant in Betts was originally convicted of conspiracy to commit bank fraud, and pled guilty to a violation of supervised release for failing to notify his probation within 72 hours of an arrest (for driving without a license). As a special condition of supervised release, the district court imposed a total ban on alcohol consumption. The Second Circuit held that this condition was not reasonably related to his underlying conviction or his admitted supervised release violation:

The District Court was not presented with any evidence

…
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Friday, February 9th, 2018

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion of why the sentence is reversible under plain error review. The summary order in United States v. Kalaba, No. 17-328 (Katzmann, Pooler, Droney) (appeal from Preska, J., SDNY), is available here.

While on supervised release, Mr. Kalaba was arrested and indicted for several counts relating to a narcotics distribution conspiracy. He was sentenced to 84 months’ imprisonment after pleading guilty to one count and being convicted of the others at trial. While awaiting trial, the Probation Office submitted a report charging four violations of supervised release. Two violations were established by the narcotics …

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Categories: 3553(c), plain error, procedural reasonableness, supervised release

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Thursday, February 1st, 2018

Plain Error Reversal of Supervised Release Condition re. Alcohol

Today the Second Circuit reversed a district court’s sentence imposing as a special condition of supervised release that the defendant refrain from using any alcohol whatsoever while on supervision. The summary order in United States v. Betts, No. 17-231-cr (Leval, Calabresi, Cabranes) (appeal from W.D.N.Y.) is available here.

The defendant in Betts was originally convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. After release from prison, he pled guilty to a supervised release violation (pursuant to a plea agreement) for failing to notify his probation officer within 72 hours of arrest. The district court sentenced the defendant to ten months’ imprisonment and four months of supervised release. As a special condition of the supervised release, the court required that the defendant refrain from consuming any alcohol.

On plain error review, the Second Circuit held that the district court abused its discretion by …

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