17-420-cr United States v. Ettinger

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of February, two thousand eighteen.

Present: ROBERT D. SACK, DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 17-420-cr

SCOTT ETTINGER,

Defendant-Appellant.

_____________________________________

For Defendant-Appellant: MATTHEW B. LARSEN, Federal Defenders of New York, New York, NY.

For Appellee: JASON SWERGOLD (Daniel B. Tehrani, on the brief), Assistant United States Attorneys, Of Counsel, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.

1 Appeal from a judgment of the United States District Court for the Southern District of

New York (Gardephe, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Scott Ettinger appeals from a judgment of conviction entered on

February 10, 2017, pursuant to a guilty plea to an indictment charging Ettinger with the receipt

and sale of stolen goods in violation of

, 2. On February 3, 2017, the district

court sentenced Ettinger principally to six months’ imprisonment and to two years of supervised

release. As relevant here, the district court ordered as one of the special conditions of Ettinger’s

supervised release (the “Search Condition”), that Ettinger “submit his person, residence, place of

business, vehicle, or any other premises under his control to a search on the basis that the

probation officer has a reasonable belief that contraband or evidence of a violation of the

conditions of release may be found.”1 J.A. 54. Ettinger appeals his sentence, arguing, in

particular, that the district court’s imposition of the Search Condition was unlawful. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

* * * 1 The full text of the Search Condition is as follows: Mr. Ettinger will submit his person, residence, place of business, vehicle, or any other premises under his control to a search on the basis that the probation officer has a reasonable belief that contraband or evidence of a violation of the conditions of release may be found. Any search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to search may be grounds for revocation of supervised release. Mr. Ettinger will inform any other residents that the premises may be subject to search pursuant to this condition.

J.A. 54.

2 District courts “retain[] wide latitude in imposing conditions of supervised release.”

United States v. Reeves,

(2d Cir. 2010) (internal quotation marks omitted).

Thus, we review a district court’s imposition of a supervised release condition for abuse of

discretion. United States v. Brown,

(2d Cir. 2005). A condition of

supervised release may be imposed if it is “reasonably related to: (A) the nature and

circumstances of the offense and the history and characteristics of the defendant; (B) the need for

the sentence imposed to afford adequate deterrence to criminal conduct; (C) the protection of the

public; and (D) the rehabilitative and medical care needs of the defendant.”

at 136–37

(quoting U.S.S.G. § 5D1.3(b)(1) (internal quotation marks omitted)); see also

(d)(1). “Despite the use of the conjunctive in the Guidelines, ‘a condition may be

imposed if it is reasonably related to any one or more of the specified factors.’”

(citation omitted). In addition, the special condition must “involve ‘no greater deprivation of

liberty than is reasonably necessary for the purposes’ of sentencing, and it must be ‘consistent

with any pertinent policy statements’ in the Guidelines.”

(quoting

(d)(2),

(3); U.S.S.G. § 5D1.3(b)(2)).

Ettinger first argues that the Search Condition is not “reasonably related” to any of the

factors cited in

(d)(1) because he is a first-time offender and Ettinger’s crime

occurred at the pawn shop where he worked rather than at home. We disagree. Ettinger had

known Jerome Shaw, the man from whom he purchased the stolen coins at issue in this case, for

about ten years, and he was aware that Shaw was a burglar. Ettinger paid Shaw $7,000 to

receive the stolen coins in the pawn shop, then resold the coins for approximately $40,000. At

close to the same time that he purchased the stolen coins, Ettinger also traveled to a

3 co-conspirator’s home to examine jewelry in the co-conspirator’s basement. Ettinger also

purchased diamonds worth approximately $100,000 from Shaw. After law enforcement first

interviewed Ettinger about the stolen coins, Ettinger attempted to conceal his wrongdoing by

creating a false receipt for the coins.

Based on these facts, we conclude that the Search Condition is “reasonably related” to

“the nature and circumstances of the offense and the history and characteristics of the

defendant.” See Brown,

;

(d)(1) (citing

(a)(1)). Ettinger negotiated for the purchase of personal property valued at almost

$150,000, using both the pawn shop and at least one other location to conduct his activities. He

then acted to conceal this activity when confronted by law enforcement, using relatively

sophisticated deceptive means. In such circumstances, the Search Condition “afford[s]

adequate deterrence to criminal conduct” because Ettinger may be more hesitant to handle stolen

goods when he knows that any premises under his control are subject to a search if his

“probation officer has a reasonable belief that contraband or evidence of a violation of the

conditions of release may be found.” J.A. 54; see also

(“[T]he search condition could

be helpful in terms of just ensuring that the defendant is not engaging in any of this conduct ever

again . . . [now that] he’s not working in a pawn shop, where he had his fencing operation.”).

We conclude that this Search Condition is reasonable in light of this need for deterrence and the

circumstances surrounding Ettinger’s offense.

Ettinger argues that home visits are a sufficient deterrent for recidivism, and the Search

Condition results in a “greater deprivation of liberty than is reasonably necessary [to meet] the

purposes of sentencing.” See Brown,

(internal quotation marks omitted); 18

(d)(2). But home visits would not cover searches of Ettinger’s person when he is

in his car or visiting other locations. As discussed above, Ettinger negotiated for and received

stolen goods outside his home, so the Search Condition helps promote the purpose of deterring

Ettinger from receiving stolen goods when he is not at home. Furthermore, the Search

Condition is itself administered pursuant to a reasonableness standard: First, a search can only be

triggered if the probation officer has a “reasonable belief that contraband or evidence of a

violation of the conditions of release may be found.” J.A. 54 (emphasis added). Second,

“[a]ny search must be conducted at a reasonable time and in a reasonable manner.”

(emphasis added).

Based on the record before us, the district court acted within its broad discretion in

imposing the Search Condition. We have considered all of Ettinger’s arguments on this appeal

and have found in them no basis for reversal. The judgment as announced orally by the district

court is AFFIRMED. The matter is REMANDED for the limited purpose of permitting the

district court to enter an amended judgment to state that the mandatory drug testing condition of

Ettinger’s supervised release is suspended.2

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

2 Both parties agree that Ettinger’s written judgment of conviction should be amended to reflect the district court’s oral pronouncement, which suspended the mandatory drug testing condition of Ettinger’s supervised release. See United States v. Carr,

(2d Cir. 2009) (“[W]here there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment . . . the oral pronouncement, as correctly reported, must control.” (internal citation omitted)).

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