24-965 United States v. Acosta
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 8th day of July, two thousand twenty-five.
PRESENT: RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, CHRISTINA REISS, Judge. * ______________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 24-965
RAUL ACOSTA,
* Chief Judge Christina C. Reiss, of the United States District Court for the District of Vermont, sitting by designation. Defendant-Appellant. † _______________________________________
For Defendant-Appellant: Matthew B. Larsen, Federal Defenders of New York, New York, NY.
For Appellee: Thomas Burnett, Hagan Scotten, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Jennifer L. Rochon, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the April 2, 2024 judgment of the district court
is AFFIRMED.
Raul Acosta appeals from a judgment of conviction following his guilty plea
to one count of unlawfully possessing a firearm as a convicted felon, in violation
of 18 U.S.C. § 922(g)(1). We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
† The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 I. Constitutionality of Section 922(g)(1)
Acosta first argues that in light of the Supreme Court’s ruling in New York
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), section 922(g)(1) should be held
unconstitutional as applied to his conduct. But the parties both agree that Acosta
never raised this argument below, so our review is confined to whether the district
court plainly erred in failing to sua sponte vacate his conviction. As we have
explained, “for an error to be plain, it must, at a minimum, be clear under current
law, which means that we typically will not find such error where the operative
legal question is unsettled, including where there is no binding precedent from the
Supreme Court or this Court.” United States v. Napout, 963 F.3d 163, 183 (2d Cir.
2020) (alterations accepted and internal quotation marks omitted).
We previously upheld the constitutionality of section 922(g)(1) against a
facial challenge in United States v. Bogle, 717 F.3d 281, 281–82 (2d Cir. 2013). More
recently, we confirmed that our holding in Bogle remains good law after Bruen.
See Zherka v. Bondi, No. 22-1108, 2025 WL 1618440, at *5 (2d Cir. June 9, 2025). We
also observed that “before, during, and shortly after the Founding, legislative
bodies regulated firearms by prohibiting their possession by categories of persons
perceived to be dangerous,” which were considered lawful regulations. Id. at *16.
3 This history persisted after the adoption of the Fourteenth Amendment. See id.
Accordingly, we held that Congress has “a legislative power, consistent with the
Second Amendment, to disarm categories of persons presumed to be dangerous,”
including felons like Acosta. Id. at *18.
Acosta nevertheless argues that his conviction is unconstitutional because
there was no practice or “‘long, unbroken line of common-law precedent’ . . . of
imposing lifetime bans on gun possession as punishment for either of Acosta’s
felonies,” which included slashing an individual with a knife and creating a
makeshift weapon while in prison. Acosta Br. at 9 (quoting Bruen, 597 U.S. at 35).
But the Supreme Court has made clear that we need not find “a dead ringer or a
. . . twin” in the historical record. United States v. Rahimi, 602 U.S. 680, 692 (2024)
(internal quotation marks omitted). Likewise, we recently explained that “any
effort by the courts to craft a line that would separate some felons from others is
fraught with peril” and thus declined to “unilaterally narrow the category of
offenses that Congress has subjected to the prohibition” of section 922(g)(1).
Zherka, 2025 WL 1618440, at *21.
For all these reasons, we cannot say that the district court erred, let alone
plainly erred, in failing to sua sponte vacate Acosta’s conviction.
4 II. Supervised Release Condition
Acosta also challenges the special condition of supervised release that
prohibits him from “associat[ing] or interact[ing] in any way, including through
social media websites, with any gang members or associates, particularly members
and associates of the Trinitarios gang.” 1 App’x at 75. Acosta principally argues
that this condition is impermissibly vague and thus fails to put him on adequate
notice of what conduct is prohibited.
Under our long-standing case law, “[a] district court retains wide latitude
in imposing conditions of supervised release.” United States v. MacMillen, 544
F.3d 71, 74 (2d Cir. 2008). Nevertheless, “[d]ue process requires that conditions
of supervised release be sufficiently clear to inform [the defendant] of what
conduct will result in his being returned to prison.” Id. at 76 (internal quotation
marks omitted). As a result, “[a] condition of supervised release is
unconstitutional if it is so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.” Id. (internal quotation marks
omitted). At the same time, we have made clear that due process does not require
1 In his opening brief, Acosta also challenged the special condition that prohibited him from “frequent[ing] neighborhoods (or ‘turf’) known to be controlled by the Trinitarios gang or any of its subsets.” App’x at 75. However, he subsequently withdrew this challenge in his reply brief, so we do not address it here.
5 district courts to cast “conditions of supervised release . . . in letters six feet high,
or describe every possible permutation, or spell out every last, self-evident detail.”
Id. (alterations accepted and internal quotation marks omitted).
We ordinarily review challenges to conditions of supervised release for
abuse of discretion. See United States v. Boles, 914 F.3d 95, 111 (2d Cir. 2019).
However, when a defendant is on notice that a condition of supervised release will
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24-965 United States v. Acosta
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 8th day of July, two thousand twenty-five.
PRESENT: RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges, CHRISTINA REISS, Judge. * ______________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 24-965
RAUL ACOSTA,
* Chief Judge Christina C. Reiss, of the United States District Court for the District of Vermont, sitting by designation. Defendant-Appellant. † _______________________________________
For Defendant-Appellant: Matthew B. Larsen, Federal Defenders of New York, New York, NY.
For Appellee: Thomas Burnett, Hagan Scotten, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Jennifer L. Rochon, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the April 2, 2024 judgment of the district court
is AFFIRMED.
Raul Acosta appeals from a judgment of conviction following his guilty plea
to one count of unlawfully possessing a firearm as a convicted felon, in violation
of 18 U.S.C. § 922(g)(1). We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
† The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 I. Constitutionality of Section 922(g)(1)
Acosta first argues that in light of the Supreme Court’s ruling in New York
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), section 922(g)(1) should be held
unconstitutional as applied to his conduct. But the parties both agree that Acosta
never raised this argument below, so our review is confined to whether the district
court plainly erred in failing to sua sponte vacate his conviction. As we have
explained, “for an error to be plain, it must, at a minimum, be clear under current
law, which means that we typically will not find such error where the operative
legal question is unsettled, including where there is no binding precedent from the
Supreme Court or this Court.” United States v. Napout, 963 F.3d 163, 183 (2d Cir.
2020) (alterations accepted and internal quotation marks omitted).
We previously upheld the constitutionality of section 922(g)(1) against a
facial challenge in United States v. Bogle, 717 F.3d 281, 281–82 (2d Cir. 2013). More
recently, we confirmed that our holding in Bogle remains good law after Bruen.
See Zherka v. Bondi, No. 22-1108, 2025 WL 1618440, at *5 (2d Cir. June 9, 2025). We
also observed that “before, during, and shortly after the Founding, legislative
bodies regulated firearms by prohibiting their possession by categories of persons
perceived to be dangerous,” which were considered lawful regulations. Id. at *16.
3 This history persisted after the adoption of the Fourteenth Amendment. See id.
Accordingly, we held that Congress has “a legislative power, consistent with the
Second Amendment, to disarm categories of persons presumed to be dangerous,”
including felons like Acosta. Id. at *18.
Acosta nevertheless argues that his conviction is unconstitutional because
there was no practice or “‘long, unbroken line of common-law precedent’ . . . of
imposing lifetime bans on gun possession as punishment for either of Acosta’s
felonies,” which included slashing an individual with a knife and creating a
makeshift weapon while in prison. Acosta Br. at 9 (quoting Bruen, 597 U.S. at 35).
But the Supreme Court has made clear that we need not find “a dead ringer or a
. . . twin” in the historical record. United States v. Rahimi, 602 U.S. 680, 692 (2024)
(internal quotation marks omitted). Likewise, we recently explained that “any
effort by the courts to craft a line that would separate some felons from others is
fraught with peril” and thus declined to “unilaterally narrow the category of
offenses that Congress has subjected to the prohibition” of section 922(g)(1).
Zherka, 2025 WL 1618440, at *21.
For all these reasons, we cannot say that the district court erred, let alone
plainly erred, in failing to sua sponte vacate Acosta’s conviction.
4 II. Supervised Release Condition
Acosta also challenges the special condition of supervised release that
prohibits him from “associat[ing] or interact[ing] in any way, including through
social media websites, with any gang members or associates, particularly members
and associates of the Trinitarios gang.” 1 App’x at 75. Acosta principally argues
that this condition is impermissibly vague and thus fails to put him on adequate
notice of what conduct is prohibited.
Under our long-standing case law, “[a] district court retains wide latitude
in imposing conditions of supervised release.” United States v. MacMillen, 544
F.3d 71, 74 (2d Cir. 2008). Nevertheless, “[d]ue process requires that conditions
of supervised release be sufficiently clear to inform [the defendant] of what
conduct will result in his being returned to prison.” Id. at 76 (internal quotation
marks omitted). As a result, “[a] condition of supervised release is
unconstitutional if it is so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.” Id. (internal quotation marks
omitted). At the same time, we have made clear that due process does not require
1 In his opening brief, Acosta also challenged the special condition that prohibited him from “frequent[ing] neighborhoods (or ‘turf’) known to be controlled by the Trinitarios gang or any of its subsets.” App’x at 75. However, he subsequently withdrew this challenge in his reply brief, so we do not address it here.
5 district courts to cast “conditions of supervised release . . . in letters six feet high,
or describe every possible permutation, or spell out every last, self-evident detail.”
Id. (alterations accepted and internal quotation marks omitted).
We ordinarily review challenges to conditions of supervised release for
abuse of discretion. See United States v. Boles, 914 F.3d 95, 111 (2d Cir. 2019).
However, when a defendant is on notice that a condition of supervised release will
be imposed and fails to object, we review the defendant’s arguments on appeal for
plain error. See United States v. Dupes, 513 F.3d 338, 343 & n.2 (2d Cir. 2008); see
also United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (explaining that plain-
error review applies because if the defendant had objected below, the district court
could have clarified any potential ambiguity). Acosta, for his part, argues that
“the plain error doctrine should not be applied stringently” here because this
appeal arises in the sentencing context. Acosta Br. at 15 (quoting United States v.
McCrimon, 788 F.3d 75, 78 (2d Cir. 2015)). But we recently rejected a similar
argument where the defendant was on notice that a supervised release condition
would be imposed because it was included in the presentence report, even though
the defendant declined to have the district court read the condition aloud at
sentencing. See United States v. Lewis, 125 F.4th 69, 75 (2d Cir. 2025). Here, the
6 condition that Acosta challenges was both included in the presentence report and
read aloud at sentencing. Accordingly, Acosta’s challenge is governed by
traditional plain-error review.
To establish plain error, a defendant must show “(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; and (4) the error seriously affects the
fairness, integrity[,] or public reputation of judicial proceedings.” United States v.
Moore, 975 F.3d 84, 90 (2d Cir. 2020) (internal quotation marks omitted). The
defendant bears the burden of establishing each of these elements. See United
States v. Dussard, 967 F.3d 149, 156 (2d Cir. 2020). We have warned that “reversal
for plain error should be used sparingly, solely in those circumstances in which a
miscarriage of justice would otherwise result.” United States v. Villafuerte, 502
F.3d 204, 209 (2d Cir. 2007) (internal quotation marks omitted).
Applying that standard here, we conclude that Acosta has failed to carry his
heavy burden in establishing that the district court committed a clear or obvious
error in the imposition of the gang-affiliation condition. We have previously
upheld a special condition of supervised release that prohibited association with
a “criminal street gang.” United States v. Green, 618 F.3d 120, 123 (2d Cir. 2010).
7 We even noted that the special condition in Green, like the one imposed here, “used
an example of a particular gang the probationer was to avoid.” Id. And despite
the lack of a mens rea requirement in that condition, we assumed that “the
prohibition only limit[ed] association with gang members known to the
probationer, and exclude[d] incidental contacts.” Id. (internal quotation marks
omitted).
Acosta makes much of the fact that “criminal street gang” is a statutorily
defined term under 18 U.S.C. § 521(a), whereas the term used by the district court
here – “gang” – is not. But “we have never held that a term is impermissibly
vague simply because it lacks a statutory definition.” United States v. Marshall,
808 F. App’x 11, 12–13 (2d Cir. 2020) (upholding a supervised release condition
“not to associate with any member, associate[,] or prospect of any criminal gang,
club[,] or organization” (internal quotation marks omitted)). Indeed, we have
upheld a special condition of supervised release that simply prohibited associating
with “any individual with an affiliation to any . . . gangs.” United States v.
Rakhmatov, No. 21-151, 2022 WL 16984536, at *3 & n.1 (2d Cir. Nov. 17, 2022)
(internal quotation marks omitted). As noted above, “[w]e typically will not find
[plain] error where the operative legal question is unsettled, including where there
8 is no binding precedent from the Supreme Court or this Court.” 2 United States v.
Whab, 355 F.3d 155, 158 (2d Cir. 2004) (internal quotation marks omitted). Given
the lack of such binding precedent here, we conclude that the district court did not
plainly err in imposing the gang-association condition.
* * *
We have considered Acosta’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
2 Acosta points to a Southern District of New York case, LoFranco v. U.S. Parole Comm’n, 986 F. Supp. 796, 809–11 (S.D.N.Y. 1997), and an Eighth Circuit case, United States v. Washington, 893 F.3d 1076, 1081–82 (8th Cir. 2018), in which each court concluded that the associational restrictions imposed as conditions of supervised release were unconstitutionally vague. But even assuming that those cases are directly on point, neither can suffice to create a clearly established precedent in this Circuit.