22-1820-cr United States v. Rodriguez

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 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 5th day of December, two thousand twenty-three.

PRESENT: AMALYA L. KEARSE, GUIDO CALABRESI, ALISON J. NATHAN, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. No. 22-1820-cr

Anthony Rodriguez,

Defendant-Appellant.

_____________________________________ FOR DEFENDANT-APPELLANT: Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY.

FOR APPELLEE: Nicholas J. Moscow & Andrew D. Wang, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Irizarry, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED in part and VACATED and REMANDED in part.

Defendant-Appellant Anthony Rodriguez appeals from an August 16, 2022

judgment of the United States District Court for the Eastern District of New York

(Irizarry, J.) convicting him of possessing a firearm after a felony conviction in

violation of

(g)(1) and sentencing him to 72 months’ imprisonment

followed by three years of supervised release. Rodriguez challenges his custodial

sentence as substantively unreasonable and raises two procedural challenges to

the terms of his supervised release.

2 We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal, to which we refer only as necessary to explain our

decision to (1) affirm the district court’s imposition of a 72-month term of

imprisonment, (2) vacate the special condition mandating drug treatment and

remand for entry of judgment consistent with the district court’s oral

pronouncement at sentencing, and (3) vacate the special condition limiting alcohol

consumption.

I. Custodial Sentence

Rodriguez first challenges his 72 months’ imprisonment as substantively

unreasonable. Rodriguez’s sentencing challenge rests primarily on his claim that

the “penalty is too severe given the offense conduct,” which he characterizes as

“[m]omentarily handling someone else’s gun.” Appellant’s Br. 14.

Applying an “abuse of discretion” standard to the substantive

unreasonableness challenge, United States v. Davis,

(2d Cir. 2023),

we disagree. “A sentence is substantively unreasonable when it cannot be

located within the range of permissible decisions, because it is shockingly high,

shockingly low, or otherwise unsupportable as a matter of law.” United States v.

Osuba,

(2d Cir. 2023) (internal quotation marks omitted). In

3 making this determination, this Court considers “the totality of the circumstances,

giving due deference to the sentencing judge’s exercise of discretion, and bearing

in mind the institutional advantages of district courts.” United States v. Smith,

(2d Cir. 2020) (internal quotation marks omitted).

The district court’s decision to impose a 72-month term of imprisonment

was not an abuse of discretion. Analyzing the sentencing factors in

(a), the district court explained its primary reasons for imposing the sentence:

(1) Rodriguez’s possession of a stolen communal gun that was subsequently used

in connection with a mass shooting; (2) Rodriguez’s false statement to an ATF

agent that he was not present at the scene of the mass shooting; and (3) Rodriguez’s

extensive history of gun-related convictions, including for armed robbery. The

district court also decided that a downward variance was warranted in this case

because Rodriguez had been held in pretrial detention during the COVID-19

pandemic. So the district court imposed a sentence of 72 months’ imprisonment,

a twelve-month downward variance from the bottom of the Guidelines. In light

of these circumstances, Rodriguez’s sentence was not “shockingly high,” and the

district court did not abuse its discretion. Osuba,

.

4 II. Special Conditions of Supervised Release

Rodriguez next challenges two of the supervised release special conditions

imposed by the district court. Specifically, Rodriguez seeks vacatur of (1) a

special condition in the district court’s written judgment requiring him to undergo

drug treatment on supervised release; and (2) a special condition barring him from

drinking alcohol throughout the three-year term of supervised release. For the

reasons set forth below, we vacate and remand on the drug treatment condition

and dismiss Rodriguez’s alcohol use condition as unripe.

A. Drug Treatment Condition

First, both parties on appeal agree that the special condition requiring

Rodriguez to undergo drug treatment on supervised release spelled out in the

district court’s written judgment should be vacated because the district court

failed to impose this requirement in Rodriguez’s presence at sentencing. We

adopt that position.

This Court “review[s] de novo the asserted discrepancy between the spoken

and written terms of [Rodriguez’s] sentence.” United States v. Washington,

(2d Cir. 2018). “It is a question of law whether the spoken and

written terms of a defendant’s sentence differ impermissibly.”

When there

5 is a substantive discrepancy between the spoken and written terms of a sentence,

“the spoken version ordinarily controls.”

. That is because the Federal

Rules of Criminal Procedure provide that a defendant must be present at

pronouncement of sentence. See Fed. R. Crim. P. 43(a)(3). 1

As both parties agree, the written judgment’s imposition of a special

condition requiring Rodriguez to undergo drug treatment upon release is an

impermissible modification of the spoken sentence. At sentencing, the district

court imposed a special condition requiring Rodriguez to “undergo drug

treatment evaluation, and if deemed necessary, participate in [an] outpatient drug

treatment program approved by the probation department.” App’x 160. The

district court’s oral terms of supervised release thus conditioned participation in

outpatient drug treatment on a mandatory drug treatment evaluation. In

contrast, the district court’s written judgment imposed a special condition

requiring Rodriguez to “participate in an outpatient substance-abuse treatment

program approved by the U.S. Probation Department.” App’x 172.

1 A written modification of a spoken sentence is only permissible where “the modification add[s] a condition of supervised release classified as mandatory, standard, or recommended in United States Sentencing Guidelines sections 5D1.3(a), (c), and (d), or add[s] mere basic administrative requirements that are necessary to supervised release.” Washington,

(internal quotation marks omitted). These exceptions are not applicable here.

6 The written judgment thus conflicts with the district court’s clear oral

pronouncement that Rodriguez undergo drug treatment evaluation and, only if

deemed necessary, participate in an outpatient drug treatment program.

Accordingly, we vacate the drug treatment condition in the written judgment and

remand for entry of judgment consistent with the district court’s oral

pronouncement at sentencing.

B. Alcohol Consumption Condition

Rodriguez next challenges the district court's imposition of the special

condition requiring that he abstain from alcohol during and after participation in

a drug treatment program. As relevant here, the district court ordered that

Rodriguez “must not consume any alcohol or any other intoxicants during and

after treatment.” App’x 161; see also id. 172 (written judgment). The

Government construes this condition as a component of the drug treatment

condition, which it agrees should be vacated given the previously discussed

discrepancy. However, the Government further argues that if participation in a

drug treatment program is deemed necessary following evaluation, “the district

court will not err if it reimposes the same condition” limiting Rodriguez’s alcohol

consumption. Appellee’s Br. 30. We disagree.

7 “District courts possess broad discretion in imposing conditions of

supervised release.” United States v. Betts,

(2d Cir. 2018). This

Court ordinarily reviews a district court’s decision to impose conditions of

supervised release for abuse of discretion. See United States v. Myers,

(2d Cir. 2005). But where, as here, a defendant did not object at sentencing,

we review for plain error. See United States v. Matta,

(2d Cir.

2015).

A sentencing court may impose special conditions that are reasonably

related to “the nature and circumstances of the offense and the history and

characteristics of the defendant”; “the need for the sentence imposed to afford

adequate deterrence to criminal conduct”; “the need to protect the public from

further crimes of the defendant”; and “the need to provide the defendant with

needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner,” and which “involve no greater

deprivation of liberty than is reasonably necessary” for these purposes. U.S.S.G.

§ 5D1.3(b). Nevertheless, a district court's discretion to impose special conditions

is not “untrammelled,” and we will “carefully scrutinize unusual and severe

conditions.” Myers,

(internal quotation marks omitted).

8 Moreover, “[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; the failure

to do so is error.” Betts,

. Without a stated reason, we may uphold

the condition imposed “only if the district court’s reasoning is self-evident in the

record” and the conditions are “reasonably related to the sentencing objectives.”

(cleaned up).

Rodriguez argues that a special condition prohibiting alcohol consumption

“during and after treatment” is not reasonably related to his underlying crime.

We agree. The district court did not state a reason for limiting Rodriguez’s

alcohol use during supervised release. Rodriguez’s underlying crime did not

involve the use of alcohol. Nor does the record provide any evidence that

Rodriguez abuses alcohol. This Court has repeatedly vacated special conditions

limiting alcohol consumption under similar circumstances. See, e.g.,

;

United States v. Ahearn,

, 150-51 (2d Cir. 2019). We therefore

conclude that the special condition restricting alcohol use is not reasonably related

to any of the factors outlined in Section 5D1.3(b), regardless of whether the alcohol

9 ban is an aspect of the drug treatment condition or not. Vacatur of this condition

is warranted.

* * *

Accordingly, we (1) AFFIRM the district court’s imposition of a 72-month

term of imprisonment, (2) VACATE the special condition mandating drug

treatment and REMAND for entry of judgment consistent with the district court’s

oral pronouncement at sentencing, and (3) VACATE the special condition limiting

alcohol consumption.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

10