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Supervised Release
United States v. Wynaar, No. 09-CR-656 (JBW), 2010 WL 3718912 (E.D.N.Y. Sept. 13, 2010)
Wynaar was convicted at trial of conspiring to import cocaine, conspiring to attempt to import cocaine, and conspiracy to attempt to possess cocaine, for which he faced an advisory Guidelines range of imprisonment of between 78 and 97 months. The court, however, sentenced him to 60 months imprisonment. Why?
The offenses of conviction were serious. Defendant was convicted by a jury of conspiring and attempting to import large, distribution quantities of cocaine into the United States from Suriname. He has exhibited on many occasions a disregard for the criminal law. A significant period of incarceration is appropriate for purposes of achieving specific deterrence. Defendant has, however, an excellent work history and a large, supportive family. The high statutory minimum applicable in this case, plus the maximum term of supervised release, will adequately serve the purposes of sentencing.
Could these same grounds for a non-Guidelines sentence also apply in, say, a white-collar setting?
United States v. Green, Docket No. 08-5548-cr (2d Cir. Aug. 13, 2010) (found here) Among other things, Green was sentenced (for his crack cocaine offense) to a term of supervised release that included the following condition: "And of course, as a special condition, you're not to associate with any member or associate of the Bloods street gang or any other criminal street gang." The final written judgment stated as follows: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person, by mail (including email), or by telephone. This shall include the wearing of colors, insignia, or obtaining tatoos or burn marks (including branding and scars) relative to these gangs." It is the "color wearing" condition that the Second Circuit found problematic. Specifically, the Second Circuit noted that "[d]ue process requires that the conditions of supervised release be sufficiently clear to 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'" Further, a "condition of supervised release must provide the probationer with conditions that 'are sufficiently clear to inform him of what conduct will result in his being returned to prison,' and violates due process if 'men of common intelligence must necessarily guess at its meaning and differ as to its application.'" With regard to the "color wearing" condition, the Second Circuit found that it: is not statutorily defined and does not provide Green with sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate. . . . Eliminating such a broad swath of clothing colors would make his daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition.
United States v. Parrish, No. 09-2482-cr (2d Cir. June 24, 2010) (found here) Parrish violated the terms of his supervised release, for which he faced an advisory Guidelines range of punishment of between 5 and 11 months. The district court, though, sentenced him to 42 months imprisonment. On appeal, that sentence was affirmed. In particular, the Second Circuit found that "[a]ny severity apparent in Parrish's violation sentence (almost four times the top of the Guidelines range) vanishes when one considers the tremendous leniency of his underlying sentence (barely more than one-eighth of the bottom of the Guidelines range)." The Second Circuit went on to note that: The Guidelines specifically provide than an upward departure may be warranted in sentencing for a violation of supervised release where a downward departure was granted at the sentencing for the underlying conviction. Where the original downward departure was a major departure, as it was in this case, a district court may well act reasonably when it applies a major upward departure to the defendant who has been shown such leniency and has later breached that trust by violating his supervised release.
Hate to admit it, but it sounds like the right result to me. What do you think?
United States v. Perez, No. 09-CR-629 (JBW), 2010 WL
2540952 (E.D.N.Y. June 17, 2010) Perez pled guilty to an illegal re-entry offense, for
which he faced an
advisory Guidelines range of imprisonment of between 21 and 27 months.
He was sentenced to time served (11 months).
Why? Other than his pre-trial detention: He has a wife and newborn child in Mexico. Violation of supervised release charges remaining pending against defendant relating to another offense, distinct from that before the court. Defendant continues to serve the term of supervised release stemming from that separate offense.
United States v. Ayers, No. 08-6286-cr (2d Cir. March 30, 2010) (found here) Ayers was convicted of, and sentenced to ten years for, receipt of child pornography. He appealed from an order modifying the conditions of his supervision to include polygraph and computerized voice-stress examinations. In general, a district court may impose a special condition of supervised release so long as the condition: (1) is "reasonably relevant" to the nature of the offense and to the goals of deterrence, rehabilitation and public safety; (2) "involves no greater deprivation of liberty than is reasonably necessary" to achieve those goals; and (3) "is consistent with any pertinent policy statements issued by the Sentencing Commission." 18 U.S.C. § 3583(d)(1)-(3). Ayers didn't dispute that the supervised release conditions satisfy the first and third statutory requirements. But he did contend that the condition violates the second because the district court's failure to prohibit the use of the examination results in any subsequent civil commitment proceeding under 18 U.S.C. § 4248 effects a greater deprivation of liberty than is warranted by the legitimate objects of supervision. The Second Circuit disagreed. Specifically, in determining whether a condition of supervised release imposes an unnecessary deprivation of liberty, it first "must identify the cognizable liberty interest with which the condition interferes." And it found that the condition imposed on Ayers does not intrude on any cognizable liberty interest because the self-incrimination clause of the Fifth Amendment is limited to criminal cases. Moreover, the Second Circuit found that "the use of supervised release testing results in civil commitment proceedings is hardly unrelated to the sentencing goals of deterrence, public safety, and rehabilitation, given the commitment statute's focus on (1) protecting the public from people who 'would have serious difficulty in refraining from sexually violent conduct or child molestation if released' . . . and (2) providing treatment for such people."
United States v. Mercado, No. 09-1283-cr (2d Cir. March 25, 2010) (found here) Among other things, Mercado argued that the district court erred in sentencing him for a supervised release violation because it failed to articulate its reasons for the sentence imposed. And the Second Circuit agreed -- sort-of. Specifically, it found that "the district court, in imposing a one-year term of imprisonment, did not explain its reasons for doing so except to note that this was the term recommended by the Probation Office." However, as the Second Circuit explained in United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (per curium): Establishing that a sentencing court failed to fulfil the "open court" requirement is not . . . tantamount to plain error. . . . [F]ailure to satisfy the open court requirement of § 3553(c) . . . does not constitute "plain error" if the district court relies on the PSR, and the factual findings in the PSR are adequate to support the sentence.
The rule applies equally to sentencing for violations of supervised release. The lesson to learn is to examine sentencing transcripts carefully on appeal. If no mention is made of the reason for the sentence imposed, it might well prove fertile ground for appeal.
United States v. Bari, Docket No. 09-1074-cr (2d Cir. March 22, 2010) (found here) The Second Circuit's succinct summary of the case and its decision says it all: Defendant Anthony Bari ("Bari") appeals from the District Court's March 11, 2009 judgment revoking Bari's term of supervised release, imposed after an earlier conviction for bank robbery and, after revocation, sentencing him principally to a term of thirty-six months' imprisonment. During the supervised release revocation hearing, Judge Chin noted that his chambers "did a Google search" to confirm that "there are also lots of different rain hats . . . that one could buy." On appeal, Bari argues that this independent Internet search violated Rule 605 of the Federal Rules of Evidence. We no consider (1) to what extent the Federal Rules of Evidence apply in supervised release revocation hearings; and (2) whether the use of an Internet search to confirm a judge's intuition about a fact not subject to reasonable dispute is grounds for reversal. We conclude that the Federal Rules of Evidence do not apply with their full force in supervised release revocation hearings. We also conclude that the District Court did not commit reversible error in conducting an Internet search to confirm his intuition regarding the matter of common knowledge.
You'll have to read the decision yourself if you want more detail concerning the brand of hat and how it figured into the supervised release violation.
United States v. Reeves, 591 F.3d 77 (2d Cir. 2010) Reeves is an important case in the development of penalties for child pornography offenders. Specifically, Reeves was convicted of possession of child pornography, and was sentenced principally to 40 months imprisonment. The district court, however, set a special condition of supervised release that obligated Reeves, upon entry into a "significant romantic relationship," to notify the United States Probation Department and inform the other party to the relationship of his conviction. On appeal, Reeves challenged the special supervised release condition. And he prevailed. Initially, the Second Circuit noted that "[i]f a condition, however well-intentioned, is not sufficiently clear, it may not be imposed" because of due process concerns. Specifically, a defendant "has a due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct wil result in [the defendant] being returned to prison." A condition is unconstitutionally vague, in turn, when "men of common intelligence must necessarily guess at its meaning and differ as to its application." The Second Circuit then found that the condition imposed by the district court was unconstitutionally vague. As described by the Second Circuit (with literary flourish): We
easily conclude that people of common intelligence (or, for that
matter, of high intelligence) would find it impossible to agree on the
proper application of a release condition triggered by entry into a
“significant romantic relationship.” 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. For some, it would involve the exchange of gifts such as
flowers or chocolates; for others, it would depend on acts of physical
intimacy; and for still others, all of these elements could be present
yet the relationship, without a promise of exclusivity, would not be
“significant.” The history of romance is replete with precisely these
blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart,
The Marriage of Figaro (1786); Jane Austen,
Mansfield Park (Thomas Egerton, 1814);
When Harry Met Sally (Columbia Pictures 1989);
He's Just Not That Into You (Flower Films 2009).
Additionally, it bears noting that the Second Circuit found that the condition "effects an unnecessary deprivation of liberty, because it is not reasonably necessary for deterrence, the protection of the public, or rehabilitation, and, in addition, is not narrowly tailored."
United States v. Dupes, 513 F.3d 338 (2d Cir. 2008)
Following a guilt plea to securities fraud and conspiracy to commit securities fraud, the court sentenced Dupes to 38 months incarceration and 3 years of supervised release. Among other things, the court imposed a special condition of supervised release relating to his prior sex offenses. On appeal, Dupes argued that those special conditions -- which did not relate to his offense of conviction in this case -- exceeded the court's statutory authority and violated the Double-Jeopardy clause of the Constitution. The Second Circuit didn't agree.
Specifically, it found that the court had broad authority pursuant to 18 U.S.C. § 3583(d) to "impose any condition of supervised release that it considers to be appropriate, provided such condition is 'reasonably related' to certain statutory factors" listed in Section 3553(a). Here, the Second Circuit found that each of the special conditions imposed (sex offender registration, keeping a distance from children, etc.) was "reasonably related" to Dupes' history and characteristics as a sex offender, his need for treatment, and the public's need for protection from him. The Second Circuit therefore concluded that such conditions did not constitute a violation of the Double-Jeopardy clause because they constitute lawful punishment.
Perhaps. But something just seems off about this decision. Not only is its conclusion not well supported in the opinion, but it would not pass the "grandmother test": my grandmother would probably have said it was a bunch of hooey because Dupes was not convicted here for any sex offense, and imposing those conditions on him does not seem related at all to his offense of conviction. Indeed, could those conditions have been imposed if Dupes' prior offense dates back, say, 10 years? 20 years? 30 years? Under this decision, the Second Circuit says yes.
United States v. Bowles, No. 06-4319-cr (2d Cir. Jan. 16, 2008) (found here)
The court sentenced Bowles to 87 months imprisonment and lifetime supervised release notwithstanding an advisory Guidelines range of 2 to 3 years supervised release. Bowles then appealed, arguing that the term of supervised release was both procedurally and substantively unreasonable.
The Second Circuit found that the sentence was not procedurally unreasonable. Specifically. the Second Circuit found that in Gall the Supreme Court found that the district court's explanation for a non-Guidelines sentence was adequate. In therefore found that in Bowles' case "the District Court adequately justified the magnitude of the departure." Among other things: (1) the District Court "made clear that the sentence of lifetime supervised release was outside the Guidelines range and explained the departure by noting Bowles' 'strong sexual obsession with children,' problems with alcohol and drug abuse, a limited support network, a proclivity to sexual activities with childen, and a perception that children enjoyed the contact"; and (2) the District Court also "considered the sentence in light of the need for deterrence, punishment, retribution, protection of society, rehabilitation, and what would constitute the 'most appropriate fair, just, and reasonable sentence under the circumstances.'" Additionally, the Second Circuit found (for similar reasons) that the sentence was substantive reasonable.
Bowles is an indication of how the Second Circuit will view non-Guidelines sentences imposed by district courts after Gall -- a deep level of deferrence the judgment and wisdom of the district court. The only issue in Bowles, however, was the term of supervised release. I'll be interested to see how the Second Circuit deals with a case involving a wide variance from the term of imprisonment advised by the Guidelines. While there should be no difference in the legal analysis, imprisonment is fundamentally different than supervised release, and we'll have to wait and see if they are treated the same.
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