United States v. Hardee

• Court: Court of Appeals for the Second Circuit
• Decided: January 29, 2025
• Docket: 23-6398
• Status: Unpublished

Opinion

23-6398-cr United States v. Hardee

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 29th day of January, two thousand twenty-five.

Present: DEBRA ANN LIVINGSTON, Chief Judge, JOHN M. WALKER, ALISON J. NATHAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 23-6398-cr

TAZOHN HARDEE,

Defendant-Appellant. _____________________________________

For Appellee: KINGDAR PRUSSIEN (David Abramowicz on the brief) Assistant United States Attorneys, on behalf of Damian Williams, United States Attorney for the Southern District of New York.

For Defendant-Appellant: SARAH BAUMGARTEL, Assistant Federal Defender, Federal Defenders of New York. Appeal from a judgment of the United States District Court for the Southern

District of New York (Briccetti, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment, entered on April 18, 2023, is AFFIRMED.

Defendant-Appellant Tazohn Hardee appeals from a judgment of the United

States District Court for the Southern District of New York (Briccetti, J.), following his

guilty plea, to possession of a firearm after having been convicted of a felony, in violation

of 18 U.S.C. § 922(g)(1). The district court sentenced Hardee principally to a term of 57

months’ imprisonment, to be followed by three years of supervised release. On appeal,

Hardee argues that the district court committed plain error by allowing him to plead

guilty to violating § 922(g)(1), a statute he now claims violates the Second Amendment

of the U.S. Constitution. Hardee also brings substantive and procedural challenges to

his sentence. He argues that the district court committed procedural error by

impermissibly presuming a Guidelines sentence was reasonable and, in the alternative,

that his sentence was substantively unreasonable. Hardee also argues that a special

condition of supervised release requiring him to participate in cognitive behavioral

treatment (“Special Condition Two”) is vague, unjustified by the record, and delegates

excessive authority to the Probation Office. 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 AFFIRM.

2 I. Constitutionality of Hardee’s Conviction

Hardee argues that § 922(g)(1) is unconstitutional in light of the Supreme Court’s

decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

Hardee makes this argument for the first time on appeal, and so we review for plain error.

See United States v. Le, 902 F.3d 104, 109 (2d Cir. 2018). “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) (internal quotation marks, citation, and alterations omitted).

No binding precedent of this Court or the Supreme Court has held that § 922(g)(1) is

unconstitutional. Although we recognize that other cases pending before panels in this

Circuit raise the question of § 922(g)(1)’s constitutionality post-Bruen, it is not clear under

current law that Hardee’s statute of conviction was unconstitutional. Accordingly, we

see no reason to disturb his conviction on plain error review. See United States v. Brillon,

No. 22-2956-cr, 2024 WL 392949, at *1 (2d Cir. Feb. 2, 2024) (summary order) (rejecting a

constitutional challenge to § 922(g)(1) under plain error review); United States v. Ogidi,

No. 23-6325-cr, 2024 WL 2764138, at *1 (2d Cir. May 30, 2024) (summary order) (same);

United States v. Ruhl, No. 21-2892-cr, 2025 WL 262309, at *1 (2d Cir. Jan. 22, 2024)

(summary order) (same).

3 II. Sentence Length

The district court imposed a prison sentence of 57 months, which was at the

bottom end of the Guidelines range of 57 to 71 months. Hardee argues that the district

court procedurally erred by improperly presuming that a within-Guidelines sentence is

reasonable. We review unpreserved claims that a sentence was procedurally

unreasonable under the plain error standard. United States v. Davis, 82 F.4th 190, 196 (2d

Cir. 2023). This means Hardee must establish: “(1) there is an error; (2) the error is clear

or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's

substantial rights; and (4) the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (quoting United States v. Rosa, 957 F.3d 113, 117-

18 (2d Cir. 2020)).

The sentencing transcript reveals that the district court engaged in a thoughtful

analysis of the statutory factors, including Hardee’s personal characteristics, offense

conduct, and criminal history. The district court also noted the existence of certain

mitigating factors in Hardee’s presentencing report but stated that “these factors do not

warrant a downward variance from the guidelines range.” App’x 51. This statement

is not, as Hardee argues, evidence of an improper presumption that a Guidelines sentence

is reasonable. Indeed, sentencing judges are required to consider the Guidelines and, if

giving a sentence outside the recommended range, “must consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the degree

4 of the variance.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)

(quoting Gall v. United States, 552 U.S. 38, 50 (2007)). Judge Briccetti’s statement here was

“nothing more than a proper reminder that the Guidelines serve as a benchmark or point

of reference or departure for the review of sentences.” United States v. Hendry, 522 F.3d

239, 242 (2d Cir. 2008) (internal quotation marks omitted). A review of the complete

transcript of the sentencing hearing reveals that the district court correctly treated the

Guidelines as merely advisory and imposed a sentence that was “sufficient, but not

greater than necessary to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, afford adequate deterrence to criminal

conduct and protect the public from further crimes of the defendant.” App’x 51.

Hardee next argues that his sentence was substantively unreasonable because the

district court gave undue weight to its views about the dangers of firearms and because

Hardee’s term of imprisonment is longer than average as compared to similar § 922(g)(1)

offenders. We review the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard. Gall, 552 U.S. at 51. In doing so, we “take into account

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.”

Cavera, 550 F.3d at 190. “A sentence is substantively unreasonable if it ‘cannot be located

within the range of permissible decisions.’” United States v. Jenkins, 854 F.3d 181, 187 (2d

Cir. 2017) (quoting Cavera, 550 F.3d at 189).

5 As noted above, Judge Briccetti’s thoughtful analysis—grounded in the

§ 3553(a) factors—plainly supports Hardee’s sentence. Viewed in context, the district

court’s comments about the prevalence of gun violence do not suggest such observations

received undue weight. The statements Hardee challenges as inappropriate were made

to highlight the severity of Hardee’s offense conduct, which involved not only mere

possession of a firearm but stashing a loaded gun in a crowded public area where “a child

or perhaps someone who might want to use a gun to commit a crime, could easily have

found [it].” App’x 50. And while Hardee’s sentence may be longer than average for

§ 922(g)(1) offenders, it was at the bottom end of his Guidelines range and imposed based

on individualized consideration of the sentencing criteria. Hardee’s sentence was

therefore well within the range of permissible decisions available to the district court.

III. Special Condition Two

Hardee argues that the district court erred in imposing Special Condition Two

which requires him to “participate in a cognitive behavioral treatment program under

the guidance and supervision of the probation officer, until such time as he is released

from the program by the probation officer.” App’x 61. According to Hardee, this

condition was insufficiently justified by the district court, is impermissibly vague, and is

an impermissible delegation to the Probation Office. Hardee did not object to Special

Condition Two at sentencing, so we review for plain error. United States v. Green, 618

F.3d 120, 122 (2d Cir. 2010) (per curiam).

6 “District courts possess broad discretion in imposing conditions of supervised

release.” United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). “A sentencing court may

impose special conditions of supervised release that are reasonably related to certain

statutory factors governing sentencing, involve no greater deprivation of liberty than is

reasonably necessary to implement the statutory purposes of sentencing, and are

consistent with pertinent Sentencing Commission policy statements.” United States v.

Gill, 523 F.3d 107, 109 (2d Cir. 2008) (per curiam) (quotation marks and alteration

omitted). When determining whether to impose a special condition, “[a] district court

is required to make an individualized assessment . . . and to state on the record the reason

for imposing it.” Betts, 886 F.3d at 202. We may also uphold a special condition even in

the absence of such an explanation when “the district court’s reasoning is self-evident in

the record.” Id. (internal quotation marks and citation omitted).

Here, Special Condition Two is supported by the sentencing record. Both

Hardee’s sentencing submission before the district court as well as his Presentence Report

(“PSR”) prepared by the Probation Office detailed a history of repeatedly making poor

choices, including prior convictions for assault and robbery, and described Hardee’s self-

professed desire to become a productive member of his family and community and

“willingness to obtain an understanding of how violent behavior is learned and . . . to

stop his violating.” United States v. Hardee, 7:22-cr-00574-VB, ECF 13-4 (S.D.N.Y. April 4,

2023). The Probation Office also recommended “cognitive behavioral therapy to assist

7 the defendant in recognizing his poor decisions and making better choices.” PSR at 18.

This supports the imposition of Special Condition Two because cognitive behavioral

therapy is designed in part to remedy psychological problems resulting from “faulty or

unhelpful ways of thinking” and “learned patterns of unhelpful behavior.” Clinical

Practice Guidelines: What Is Cognitive Behavioral Therapy?, American Psychological

Association, https://www.apa.org/ptsd-guideline/patients-and-families/cognitive-

behavioral.pdf [https://perma.cc/G3UP-BY9F]. The district court could reasonably

conclude that Hardee was a person of “very poor judgment” who needed to improve

self-regulation. App’x 55. It is therefore “self-evident in the record” that the

challenged special condition will reasonably advance the purposes of sentencing by

assisting in Hardee’s rehabilitation and reducing the likelihood of his recidivism.

Hardee also contends that Special Condition Two is impermissibly vague because

it does not define what type of program may qualify as “cognitive behavioral treatment.”

“A condition is too vague if it requires a reasonable person to speculate as to its

meaning. However, conditions need not be cast in letters six feet high, or describe every

possible permutation, or spell out every last, self-evident detail.” United States v. Sims,

92 F.4th 115, 125 (2d Cir. 2024) (internal quotation marks, citations, and alterations

omitted). The Guidelines specifically contemplate “mental health program

participation” as a special condition. U.S.S.G. § 5D1.3(d)(5). Pursuant to this provision,

a court may include “a condition requiring that the defendant participate in a mental

8 health program approved by the United States Probation office.” Id. That Special

Condition Two specifies a particular treatment approach here—one also recommended

by the Probation Office in the PSR—does not make it vague.

Finally, Hardee argues that Special Condition Two impermissibly delegates

sentencing authority to the Probation Office. We have said that a “district court may

delegate to the Probation Office decision-making authority over details of supervised

release such as treatment schedule or duration” so long as it does not give the Probation

Office the authority to “fashion a sentence’s terms.” United States v. Carlineo, 998 F.3d

533, 538 (2d Cir. 2021). Hardee contends that Special Condition Two leaves too many

blanks for the Probation Office to fill because it fails to articulate specifics about the

program’s design, set its goals, or determine the criteria upon which Hardee may be

released from treatment. We disagree.

Leaving the specific details of a mental health treatment program to the Probation

Office is “an unambiguously lawful, and indeed advisable, means of delegating

supervisory authority to the Probation Office.” United States v. Young, 910 F.3d 665, 671

(2d Cir. 2018) (affirming a special condition directing a supervisee to undergo a mental

health evaluation and, if indicated by the evaluation, participate in mental health

treatment); see also United States v. Peterson, 248 F.3d 79, 85 (“If the district court intends

that the therapy be mandatory but leaves a variety of details, including the selection of a

therapy provider and schedule to the probation officer, such a condition of probation

9 may be imposed.”). Special Condition Two unambiguously requires that Hardee

participate in cognitive behavioral therapy and then properly delegates the specifics of

his treatment plan to the Probation Office. 1

* * *

We have considered Hardee’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 If the Probation Officer oversteps its authority as to Hardee’s cognitive behavioral treatment program, Hardee may, at that time, seek recourse before the sentencing court. See Young, 910 F.3d at 671 n.26.