22-2894-cr United States v. Smith

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 3rd day of July, two thousand twenty-four.

PRESENT: ROBERT D. SACK, REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 22-2894-cr

MARK R. MAIO,

Defendant,

BRANDON SMITH,

Defendant-Appellant. _____________________________________

FOR APPELLEE: TIFFANY H. LEE, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, New York.

FOR DEFENDANT-APPELLANT: MARTIN J. VOGELBAUM, Federal Public Defender’s Office, Western District of New York, Buffalo, New York.

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

York (Richard J. Arcara, Judge).

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

DECREED that the judgment of the district court, entered on October 28, 2022, is AFFIRMED

in part, and VACATED and REMANDED in part.

Defendant-Appellant Brandon Smith appeals from the district court’s judgment of

conviction following his guilty plea to one count of conspiracy to possess with intent to distribute,

and to distribute, five grams or more of methamphetamine, in violation of

(a)(1),

(b)(1)(B) and 846. The district court sentenced Smith principally to ninety-eight months’

imprisonment, to be followed by four years’ supervised release. In so doing, the district court

imposed a special condition of supervision requiring that “[t]he defendant shall submit to a search

of his person, property, vehicle, place of residence or any other property under his control, and

permit confiscation of any evidence or contraband discovered” (the “Search Condition”). App’x

at 127. The district court also imposed a special condition of supervision requiring that “[t]he

defendant shall notify the Probation Officer of any opiate based pain medication prescribed by a

doctor BEFORE the prescription is filled by a pharmacist” (the “Opiate Pain Medication

Condition”). App’x at 127. On appeal, Smith challenges the imposition of the Search Condition

and the Opiate Pain Medication Condition on both procedural and substantive grounds, arguing,

2 inter alia, that the suspicionless Search Condition violates the Fourth Amendment. 1 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.

We review a district court’s imposition of a condition of supervised release for abuse of

discretion, “carefully scrutiniz[ing] unusual or severe” conditions, United States v. Carlineo,

(2d Cir. 2021), and we review de novo the imposition of any conditions that are

challenged as a matter of law, United States v. Birkedahl,

(2d Cir. 2020). Because

Smith did not object to the imposition of the Search Condition or the Opiate Pain Medication

Condition before the district court, we review only for plain error. See United States v. Green,

(2d Cir. 2010) (per curiam). Smith contends that we should apply a “‘relaxed’ plain

error” standard of review. Appellant’s Br. at 11–12 (quoting United States v. Matta,

(2d Cir. 2015)). We need not address that issue because our analysis would be the same under

either standard. Under the plain error standard, we “correct an error not raised at trial only where

the [defendant] demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than

subject to reasonable dispute; (3) the error affected the [defendant’s] substantial rights, which in

the ordinary case means it affected the outcome of the district court proceedings; and (4) the error

seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States

v. Marcus,

(2010) (alteration adopted) (internal quotation marks and citation

1 With respect to the Search Condition, Smith does not contest that the district court was justified in imposing a search condition with respect to his supervised release given that his offense involved the concealment of contraband and he has a history of drug abuse, but rather argues that the district court erred, inter alia, in requiring no individualized suspicion for the probation officer to have the authority to conduct any search.

3 omitted).

With respect to Smith’s constitutional challenge to the suspicionless Search Condition, we

recently held, in United States v. Oliveras,

(2d Cir. 2024), “that the special needs

doctrine of the Fourth Amendment permits, when sufficiently supported by the record, the

imposition of a special condition of supervised release by the district court that allows the

probation officer conducting the supervision to search the defendant’s person, property, vehicle,

place of residence, or any other property under his control, without any level of suspicion.”

However, we vacated the special search condition at issue in Oliveras because the district court

committed procedural error by “fail[ing] to make an individualized assessment to support the

imposition of the suspicionless Search Condition as to Oliveras,”

, and we remanded “for

further consideration of whether it [wa]s necessary to impose the Search Condition in th[at]

particular case and, if so, for the district court to explain the individualized basis for imposing the

Search Condition,”

at 316–17.

Here, as in Oliveras, the district court failed to make an individualized assessment in

deciding whether to impose the Search Condition or to provide adequate reasons, supported by the

record, for us to discern whether the decision to impose that condition was reasonable under

(d). See United States v. Eaglin,

(2d Cir. 2019) (requiring the district

court to “make an individualized assessment when determining whether to impose a special

condition of supervised release, and state on the record the reason for imposing it” (alteration

adopted) (internal quotation marks and citation omitted)). The government concedes that the lack

of an individualized assessment in this case constitutes plain error and suggests that the case be

remanded “for the limited purpose of having the district court consider whether it is necessary to

4 impose the search condition in this particular case and, if so, for the district court to explain the

individualized basis for imposing the search condition.” Fed. R. App. P. 28(j) Letter, ECF No. 68

at 1. We agree.

To be sure, even in the absence of an explanation by the district court, we can uphold a

special condition “if the district court’s reasoning is self-evident in the record.” United States v.

Betts,

(2d Cir. 2018) (internal quotation marks and citation omitted). However,

it is not self-evident from this record why there was a need for a suspicionless Search Condition

under the particular circumstances of this case. See Oliveras,

(“[I]t is not difficult

to imagine individualized cases where, although a defendant was convicted of a drug offense, the

nature of his involvement in that offense, combined with an assessment of the other applicable

statutory factors, would not support a finding that such a highly intrusive suspicionless search

condition is reasonable.”). As we explained in Oliveras, “[s]uch conditions may be justified, but

they require careful consideration as to the need for such broad discretion to search in each

particular case.”

. Accordingly, on remand, the district court must carefully consider

whether the suspicionless Search Condition is warranted in this case and explain its reasoning if it

reimposes such a condition.

As to the Opiate Pain Medication Condition, Smith states that “[t]he single, narrow issue

here is whether the requirement that [he] notify his Probation Officer before filling a prescription

for an opiate-based medication is more intrusive than necessary to accomplish the legitimate

sentencing goals of rehabilitation, deterrence, and protecting the public from future offenses by

[him].” Appellant’s Reply Br. at 11. Although Smith contends that the district court plainly erred

in imposing this condition, we disagree.

5 “District courts possess broad discretion in imposing conditions of supervised release.”

Betts,

. Within this broad discretion, a district 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); see

also United States v. Myers,

, 123–24 (2d Cir. 2005).

The record demonstrates that Smith has a history of drug abuse. Moreover, Smith

acknowledges that he “sporadically abused multiple legal and illegal substances to quell the pain

caused by a rare autoimmune disorder,” including a prescribed pain reliever containing an opioid

upon which he became dependent. Appellant’s Br. at 5. Thus, it is self-evident from the record,

especially in light of the nature of the offense and Smith’s history of drug abuse, that the Opiate

Pain Medication Condition was reasonably related to ensuring that the Probation Officer could

properly monitor Smith for any abuse of pain medication while on supervised release. Indeed, he

concedes that the Probation Officer “has a legitimate interest in making sure that [he] is only using

legitimately prescribed opiates, if any, and that he is using them as prescribed.” Id. at 38.

However, he asserts that his other conditions of supervision—including that he refrain from the

unlawful possession or use of controlled substances and that he undergo drug testing and, if

indicated, complete substance abuse treatment—were “adequate to ensure that [he] has not fallen

back into abusing opiates.” Id.

6 In light of Smith’s history of substance abuse, we discern no plain error in the district

court’s determination that the Opiate Pain Medication Condition was reasonably necessary, even

with the other conditions of supervision, to ensure that Smith does not abuse opiates, including

those prescribed by a doctor. Smith suggests that requiring him to notify the probation officer

before he fills a prescription is unnecessary and could interfere with his medical treatment

(including in an emergency situation). The apparent purpose of that restriction is to allow the

Probation Office to have sufficient time to verify that the supervisee’s prescription for opiates is

lawfully obtained and is for a legitimate medical purpose. A supervisee with an opiate-abuse

history is at heightened risk of, inter alia, falsifying an opiate prescription, concealing his opiate-

abuse history from the prescribing doctor, or engaging in “doctor shopping,” i.e., simultaneously

obtaining opiate prescriptions from multiple doctors. Thus, the timing of the notification

minimizes the potential harm to the supervisee and the public if a supervisee with an opiate-abuse

history wrongfully obtains an opiate prescription without legitimate medical purpose and is then

able to either abuse or distribute the opiates before the Probation Office is able to prevent that

dangerous conduct. Although Smith asserts in conclusory fashion that the restriction’s timing

could interfere with legitimate medical treatment, that issue was not raised in the district court.

Indeed, it is difficult to understand how the restriction could delay legitimate medical treatment

because the restriction requires notification to, rather than approval by, the Probation Office before

the prescription is filled by a pharmacist. In other words, as written, the restriction allows Smith

to fill the prescription while the Probation Office conducts whatever verification may be necessary

7 to reasonably ensure that the prescription is a legitimate one. In short, on this record, Smith has

failed to demonstrate that the district court plainly erred in imposing this condition. 2

* * *

We have considered Smith’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court, except that we VACATE the Search

Condition and REMAND for further consideration of whether it is necessary to impose the Search

Condition in this particular case and, if so, for the district court to explain the individualized basis

for imposing the Search Condition.

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

2 If Smith has evidence—such as a note from his doctor—that this special condition unduly interferes with his medical treatment, he has the ability to present any such evidence to the district court in the first instance and to seek a modification of the special condition pursuant to

(e)(2).

8