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 U.S.C. § 16, or any offense against property, including offenses committed by fraud or deceit. The defendant argued that Hobbs Act robbery conspiracy was neither. The Circuit asserted that there was no clear law on this question, so the restitution order was not plainly erroneous.