23-6710-cr
United States v. Genao

                               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
4th day of October, two thousand twenty-four.
Present:
            REENA RAGGI,
            WILLIAM J. NARDINI,
                  Circuit Judges,
            NATASHA C. MERLE,
                  District Judge. *
_____________________________________
UNITED STATES OF AMERICA,
                           Appellee,
                  v.                                                             23-6710-cr
CHRISTIAN GENAO,
                           Defendant-Appellant.
_____________________________________

 For Appellee:                                      REBECCA M. URQUIOLA (Breon Peace, on the brief),
                                                    United States Attorney’s Office, Eastern District of
                                                    New York, Brooklyn, NY

 For Defendant-Appellant:                           ALLEGRA GLASHAUSSER, Federal Defenders of New
                                                    York, Brooklyn, NY


        *
          Judge Natasha C. Merle, of the United States District Court for the Eastern District of New York, sitting
by designation.



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

York (Allyne R. Ross, District Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Christian Genao appeals from a judgment of the United States

District Court for the Eastern District of New York (Allyne R. Ross, District Judge), entered on

June 15, 2023, and amended on June 30, 2023, sentencing him to a year and a day of imprisonment

and two years of supervised release following his guilty plea to one count of importation of cocaine

in violation of 

(a), 960(a)(1), 960(b)(2)(B). In its written judgment, the district

court prohibited Genao from consuming alcohol while on supervised release.                           Genao now

challenges that condition, contending that the district court improperly omitted it from the oral

pronouncement of his sentence and that the condition is not “reasonably related” to his sentencing

factors. We assume the parties’ familiarity with the case.

        “This Court generally reviews the imposition of supervised release conditions for abuse of

discretion.” United States v. Oliveras, 

 (2d Cir. 2024). 1 “Whether the spoken

and written terms of a defendant’s sentence differ impermissibly presents a question of law that

we review de novo.” United States v. Rosado, 

, 123–24 (2d Cir. 2024).

        Federal Rule of Criminal Procedure 43(a)(3) requires that a defendant be present at

sentencing. In view of this rule, we have held that “it is the oral sentence which constitutes the

judgment of the court, and which is authority for the execution of the court’s sentence. The written

commitment is mere evidence of such authority.”                      United States v. Asuncion-Pimental,


         1
           Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases,
footnotes, and citations are omitted.



                                                         2


 (2d Cir. 2002). “[I]n the event of variation between an oral pronouncement of

sentence and a subsequent written judgment, the oral pronouncement controls, and any

burdensome punishments or restrictions added in the written judgment must be removed.” Rosado,

.

       Nevertheless, “we have not rigidly disregarded all conditions of supervised release later

included in a judgment but omitted from the oral pronouncement of sentence.” United States v.

Handakas, 

 (2d Cir. 2003). For example, “explicit reference to each and every

standard condition of supervision” set forth in § 5D1.3(c) of the United States Sentencing

Guidelines (“Guidelines”) “is not essential to the defendant’s right to be present at sentencing.”

United States v. Truscello, 

 (2d Cir. 1999). Rather, “even the most general allusion

to the ‘standard conditions’ of supervised release” during the oral imposition of sentence “is a

sufficient basis on which to predicate the imposition of each of the conditions normally regarded

as standard.” 

 Under certain circumstances, this principle applies to the “special” conditions in

§ 5D1.3(d) of the Guidelines as well.

       “While the ‘standard’ conditions provided in § 5D1.3(c) are presumed suitable in all cases,

the suitability of the conditions provided in § 5D1.3(d) may be contingent on the presence of

specific factors in each case.” Asuncion-Pimental, 

. “Where these factors are

present, however, these ‘special’ conditions are no different in practical terms from ‘standard’

conditions, that is, they are generally recommended.” 

 In such circumstances, the district

court’s “failure to articulate [the recommended special conditions] orally is irrelevant.” United

States v. Thomas, 

 (2d Cir. 2002). As pertinent here, § 5D1.3(d)(4) recommends

the following “special” conditions “[i]f the court has reason to believe that the defendant is an

abuser of narcotics, other controlled substances or alcohol”:



                                                 3
       (A) a condition requiring the defendant to participate in a program approved by the
       United States Probation Office for substance abuse, which program may include
       testing to determine whether the defendant has reverted to the use of drugs or
       alcohol; and (B) a condition specifying that the defendant shall not use or possess
       alcohol.

Thus, the alcohol prohibition in § 5D1.3(d)(4)(B) is “generally recommended” as a condition of

supervised release when the district court has reason to believe the defendant abuses drugs or

alcohol. See Asuncion-Pimental, 

.

       Based on facts Genao introduced into the record, the district court had reason to believe all

three factors were present: that he abused narcotics, other controlled substances, and alcohol. First,

Genao’s sentencing memorandum stated that, at some point, “[h]is family realized that he was

becoming reliant on alcohol and drugs.” Defendant’s Sent’g Mem. at 4, United States v. Genao,

No. 21-CR-579-ARR-1 (E.D.N.Y. Dec. 22, 2022), ECF No. 25. In support of this statement,

Genao submitted a letter from his aunt that mentioned his dependence on both alcohol and drugs.

Id. at 13. Then, at sentencing, defense counsel acknowledged on the record that Genao “has

struggles with . . . drug abuse,” App’x at 34, had been testing positive for marijuana, and tested

positive for cocaine at the time of his arrest, id. at 37–38. Under these circumstances, the

Guidelines generally recommend that the district court prohibit the defendant from using or

possessing alcohol as a condition of supervised release. It is therefore “irrelevant” that the

Guidelines label the condition “special”; in this case, the condition is “no different in practical

terms” from the standard conditions in § 5D1.3(c), which the district court need not orally

pronounce. Asuncion-Pimental, 

.

       Genao contends that § 5D1.3(d)(4) is more logically read to recommend the alcohol

prohibition condition only when the defendant is receiving alcohol treatment, not when he is

receiving drug treatment. But this argument has no basis in the text of the Guidelines. Section



                                                  4
5D1.3(d)(4) plainly recommends that the conditions in both subsections (A) and (B) be imposed

“[i]f the court has reason to believe that the defendant is an abuser of narcotics, other controlled

substances or alcohol.” In recommending the alcohol prohibition in subsection (B), the Guidelines

draw no distinction between defendants receiving drug treatment and those receiving alcohol

treatment. Thus, the fact that the district court required Genao to participate in an outpatient drug

treatment program without specifically mentioning alcohol treatment makes no difference.

       Because the Guidelines generally recommended that the district court prohibit Genao from

using or possessing alcohol while on supervised release, it was permissible for the district court to

impose the alcohol prohibition as a condition in its written judgment without pronouncing it orally

at sentencing. Accordingly, we need not reach Genao’s argument that the district court did not

have authority to pronounce the condition orally at a later hearing, which followed the entry of the

written judgment in this case. Nor must we reach Genao’s argument, based on § 5D1.3(b), that

the condition is not reasonably related to the sentencing factors applicable to his case. Section

5D1.3(b) provides that the district court may impose certain “discretionary” conditions if, among

other things, the conditions are “reasonably related” to the defendant’s “history and

characteristics.” That section does not apply here, given that the Guidelines recommend the

alcohol prohibition as a “special” condition under § 5D1.3(d).

                                          *      *       *

       We have considered Genao’s remaining arguments and find them to be unpersuasive.

Accordingly, we AFFIRM the judgment of the district court.

                                                              FOR THE COURT:

                                                              Catherine O’Hagan Wolfe, Clerk




                                                 5