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 24th day of October, two thousand twenty-five. 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 (Elias Laris, on the brief), for Breon Peace, United States Attorney for the 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 summary order in this case entered on October 4, 2024, is VACATED and

the case is REMANDED for further proceedings consistent with this order.

Defendant-Appellant Christian Genao appealed 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). At a sentencing hearing held on June

12, 2023, the court orally imposed a condition of supervised release requiring Genao to attend

outpatient drug treatment. In its written judgment, the district court included a further condition

prohibiting Genao from consuming alcohol while on supervised release. Genao challenged that

condition on appeal, contending (1) that the district court’s failure to pronounce it orally precluded

its inclusion in the written judgment, and (2) that the condition is not “reasonably related” to the

sentencing factors applicable to his case. In a summary order issued on October 4, 2024, we

affirmed the judgment of the district court. United States v. Genao, No. 23-6710-cr,

(2d Cir. Oct. 4, 2024) (internal quotation marks omitted).

Specifically, we held that Genao’s first argument was foreclosed by United States v.

Truscello,

(2d Cir. 1999). Subsequently, our en banc Court decided United States

v. Maiorana, __ F.4th __,

(2d Cir. Aug. 28, 2025). Maiorana overruled

Truscello, making clear that at a sentencing hearing, a district court must orally pronounce all non-

mandatory conditions it intends to impose, including “standard” conditions described in the

Guidelines.

. Genao moved to recall the mandate and for a rehearing in light of Maiorana.

2 The government did not oppose Genao’s motions. We granted Genao’s motion to recall the

mandate on September 26, 2025, and ordered the parties to submit letter briefs addressing

Maiorana.

Having now received and reviewed those submissions, we conclude that the portion of the

judgment prohibiting the use of alcohol must be vacated in light of Maiorana. There is no dispute

that the district court did not make any oral reference to the alcohol-related special condition at

sentencing or “expressly adopt or specifically incorporate by reference” a condition that had been

set forth in writing and made available to Genao in the pre-sentence report (“PSR”).

. We

therefore remand “with instructions to vacate th[is] portion[] of the judgment.”

at *6 & n.13.

We note that in this case, the district court held an additional hearing on June 29, 2023, two

weeks after judgment was entered, during which the court explained in some detail why it was

appropriate to impose the alcohol-related condition at issue in this appeal. While that does not

cure the error requiring vacatur for the reasons explained in Maiorana, the district court on remand

remains free to re-impose the alcohol-related condition in a revised judgment, but to do so “it must

convene a hearing in the presence of [Genao] and must advise [him] that those conditions will be

imposed, either through a full recitation or through the express adoption of particular conditions

that have been set forth in writing and made available to [Genao] in the PSR, the Guidelines, or a

notice adopted by the court.”

. Genao may, of course, waive his right that such a

resentencing hearing be held, or that he be present at such a hearing. See

at *6 n.14.

For the foregoing reasons, the summary order in this case entered on October 4, 2024, is

VACATED. We REMAND the case to the district court with instructions to VACATE the

alcohol use condition of the judgment and for further proceedings consistent with this order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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