25-1076 United States v. Kennedy
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 23rd day of April, two thousand twenty-six.
PRESENT:
ROBERT D. SACK, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 25-1076 JOSE CASTRO, a.k.a. PAPO, ALEX MARTINEZ, a.k.a. A-ROD, KEVIN HENDERSON, a.k.a. MIDNIGHT, JOSHUA RICE, a.k.a. POP, CALVIN THOMAS, a.k.a. FAT CAT, EARL MERCER, a.k.a. BIG EARL, a.k.a. EARL THE PEARL, MARTY KERLEW, a.k.a. CURLEY, KEYON TARVER, JERMAINE NIBBS, a.k.a. LOLLIPOP, JAVIER OLIVERA, VICTOR MOORE, CHARLES WILLIAMS, RONALD BELL, ALFONSO LEE, a.k.a. BLACK, ANTHONY GREGG, a.k.a. BULL, AUSTIN HUGGINS, FRANK WRIGHT, KASHIEF RICE, JAMES PERKINS, a.k.a. JIMBO, JAIME MARTINEZ, CARLTON SANDERLIN, a.k.a. MURDER, a.k.a. CARLTON SANDERIN, RICHARDINE PERRY, a.k.a. NIC, CHRISTOPHE MILLS, LEWIS CLARKE, a.k.a. FROG, DANNY ZAITER,
Defendants,
JAMEL KENNEDY,
Defendant-Appellant. _____________________________________
For Defendant-Appellant: Benjamin Gruenstein, Joseph B. Linfield, Martin Rather, Cravath, Swaine & Moore LLP, New York, NY.
For Appellee: Lauren E. Phillips, Nathan Rehn, Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.
2 Appeal from a judgment of the United States District Court for the Southern
District of New York (Loretta A. Preska, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the April 15, 2025 judgment of the district
court is AFFIRMED.
Jamel Kennedy appeals from the district court’s judgment revoking his term
of supervised release and sentencing him to nine months’ imprisonment, to be
followed by an additional five-year term of supervised release. Kennedy argues
that the district court procedurally erred when it relied exclusively on the
“seriousness” of the conduct underlying his violation of supervised release in
imposing the new term of supervised release, since that consideration is
impermissible under 18 U.S.C. § 3583(c). Kennedy Br. at 9, 12. 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.
In reviewing a district court’s sentencing decision, we ordinarily apply a
deferential “abuse-of-discretion standard.” United States v. Smith, 949 F.3d 60, 66
(2d Cir. 2020). But things change where, as here, a defendant raises an objection
on appeal that he failed to raise below. In that circumstance, we review the
3 sentence only for plain error. Id. To meet the plain error standard, a defendant
must establish that “(1) there is an error; (2) the error is clear or obvious, rather
than subject to reasonable dispute; (3) the error affected [his] substantial rights;
and (4) the error seriously affects the fairness, integrity[,] or public reputation of
judicial proceedings.” United States v. Balde, 943 F.3d 73, 96 (2d Cir. 2019) (internal
quotation marks omitted). As the Supreme Court has observed, “[m]eeting all four
prongs is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation marks omitted).
A sentence for a violation of supervised release is reviewed “under the same
standard as for sentencing generally: whether the sentence imposed is
reasonable.” United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (internal
quotation marks omitted). And “a sentence is procedurally unreasonable if the
district court fails to calculate (or improperly calculates) the Sentencing Guidelines
range, treats the Sentencing Guidelines as mandatory, fails to consider the
[18 U.S.C. §] 3553(a) factors, selects a sentence based on clearly erroneous facts, or
fails adequately to explain the chosen sentence.” Smith, F.3d at 66 (internal
quotation marks omitted).
4 When imposing a term of supervised release, district courts must look to the
factors set forth in section 3583 of Title 18, which in turn incorporates many of the
factors set forth in section 3553. See 18 U.S.C. § 3583(c). Those section 3553 factors
include “the nature and circumstances of the offense and the history and
characteristics of the defendant,” as well as the need “to afford adequate
deterrence to criminal conduct,” “to protect the public from further crimes of the
defendant,” and “to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(a)(2)(D); see United States v. Williams,
998 F.3d 538, 541 (2d Cir. 2021). Notably, section 3583(c) does not include one of
the factors contained in section 3553(a) – namely, consideration of “the seriousness
of the offense” or “punishment for the offense.” 18 U.S.C. § 3553(a); see 18 U.S.C.
§ 3583(c).
As the Supreme Court has noted, this omission means that a district court
“may not take account of retribution” (e.g., the “seriousness” of and “punishment
for” the underlying criminal conviction) “when imposing a term of supervised
release.” Tapia v. United States, 564 U.S. 319, 326 (2011). It also means that, when a
district court explains the reasons for its sentence, it should “separately state its
5 reasons for the term of supervised release” if it “bases a term of incarceration
substantially upon the seriousness” of the underlying conviction, since that is a
permissible consideration for a term of imprisonment but not for a term of
supervised release. Williams, 998 F.3d at 538, 541–42.
Kennedy’s sole argument on appeal is that the district court improperly
relied on the “seriousness” of the conduct underlying his violations of supervised
release to justify both his new term of imprisonment and his new term of
supervised release. Kennedy Br. at 9, 12. He insists that such reliance runs afoul
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25-1076 United States v. Kennedy
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 23rd day of April, two thousand twenty-six.
PRESENT:
ROBERT D. SACK, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 25-1076 JOSE CASTRO, a.k.a. PAPO, ALEX MARTINEZ, a.k.a. A-ROD, KEVIN HENDERSON, a.k.a. MIDNIGHT, JOSHUA RICE, a.k.a. POP, CALVIN THOMAS, a.k.a. FAT CAT, EARL MERCER, a.k.a. BIG EARL, a.k.a. EARL THE PEARL, MARTY KERLEW, a.k.a. CURLEY, KEYON TARVER, JERMAINE NIBBS, a.k.a. LOLLIPOP, JAVIER OLIVERA, VICTOR MOORE, CHARLES WILLIAMS, RONALD BELL, ALFONSO LEE, a.k.a. BLACK, ANTHONY GREGG, a.k.a. BULL, AUSTIN HUGGINS, FRANK WRIGHT, KASHIEF RICE, JAMES PERKINS, a.k.a. JIMBO, JAIME MARTINEZ, CARLTON SANDERLIN, a.k.a. MURDER, a.k.a. CARLTON SANDERIN, RICHARDINE PERRY, a.k.a. NIC, CHRISTOPHE MILLS, LEWIS CLARKE, a.k.a. FROG, DANNY ZAITER,
Defendants,
JAMEL KENNEDY,
Defendant-Appellant. _____________________________________
For Defendant-Appellant: Benjamin Gruenstein, Joseph B. Linfield, Martin Rather, Cravath, Swaine & Moore LLP, New York, NY.
For Appellee: Lauren E. Phillips, Nathan Rehn, Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.
2 Appeal from a judgment of the United States District Court for the Southern
District of New York (Loretta A. Preska, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the April 15, 2025 judgment of the district
court is AFFIRMED.
Jamel Kennedy appeals from the district court’s judgment revoking his term
of supervised release and sentencing him to nine months’ imprisonment, to be
followed by an additional five-year term of supervised release. Kennedy argues
that the district court procedurally erred when it relied exclusively on the
“seriousness” of the conduct underlying his violation of supervised release in
imposing the new term of supervised release, since that consideration is
impermissible under 18 U.S.C. § 3583(c). Kennedy Br. at 9, 12. 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.
In reviewing a district court’s sentencing decision, we ordinarily apply a
deferential “abuse-of-discretion standard.” United States v. Smith, 949 F.3d 60, 66
(2d Cir. 2020). But things change where, as here, a defendant raises an objection
on appeal that he failed to raise below. In that circumstance, we review the
3 sentence only for plain error. Id. To meet the plain error standard, a defendant
must establish that “(1) there is an error; (2) the error is clear or obvious, rather
than subject to reasonable dispute; (3) the error affected [his] substantial rights;
and (4) the error seriously affects the fairness, integrity[,] or public reputation of
judicial proceedings.” United States v. Balde, 943 F.3d 73, 96 (2d Cir. 2019) (internal
quotation marks omitted). As the Supreme Court has observed, “[m]eeting all four
prongs is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation marks omitted).
A sentence for a violation of supervised release is reviewed “under the same
standard as for sentencing generally: whether the sentence imposed is
reasonable.” United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (internal
quotation marks omitted). And “a sentence is procedurally unreasonable if the
district court fails to calculate (or improperly calculates) the Sentencing Guidelines
range, treats the Sentencing Guidelines as mandatory, fails to consider the
[18 U.S.C. §] 3553(a) factors, selects a sentence based on clearly erroneous facts, or
fails adequately to explain the chosen sentence.” Smith, F.3d at 66 (internal
quotation marks omitted).
4 When imposing a term of supervised release, district courts must look to the
factors set forth in section 3583 of Title 18, which in turn incorporates many of the
factors set forth in section 3553. See 18 U.S.C. § 3583(c). Those section 3553 factors
include “the nature and circumstances of the offense and the history and
characteristics of the defendant,” as well as the need “to afford adequate
deterrence to criminal conduct,” “to protect the public from further crimes of the
defendant,” and “to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(a)(2)(D); see United States v. Williams,
998 F.3d 538, 541 (2d Cir. 2021). Notably, section 3583(c) does not include one of
the factors contained in section 3553(a) – namely, consideration of “the seriousness
of the offense” or “punishment for the offense.” 18 U.S.C. § 3553(a); see 18 U.S.C.
§ 3583(c).
As the Supreme Court has noted, this omission means that a district court
“may not take account of retribution” (e.g., the “seriousness” of and “punishment
for” the underlying criminal conviction) “when imposing a term of supervised
release.” Tapia v. United States, 564 U.S. 319, 326 (2011). It also means that, when a
district court explains the reasons for its sentence, it should “separately state its
5 reasons for the term of supervised release” if it “bases a term of incarceration
substantially upon the seriousness” of the underlying conviction, since that is a
permissible consideration for a term of imprisonment but not for a term of
supervised release. Williams, 998 F.3d at 538, 541–42.
Kennedy’s sole argument on appeal is that the district court improperly
relied on the “seriousness” of the conduct underlying his violations of supervised
release to justify both his new term of imprisonment and his new term of
supervised release. Kennedy Br. at 9, 12. He insists that such reliance runs afoul
of the holdings in Tapia and Williams. We disagree.
Both Tapia and Williams involved plenary sentencings and turned on the text
of section 3583(c) – or, more precisely, on section 3583(c)’s omission of the
“seriousness-of-the-offense” factor contained in section 3553(a)(2)(A). See Tapia,
564 U.S. at 325–26; Williams, 998 F.3d at 540–42. But the “offense” alluded to in
section 3553(a)(2)(A) refers only to the conduct underlying the original criminal
conviction, not to the conduct underlying the violation of supervised release. See
United States v. Esteras, 606 U.S. 185, 194 n.5 (2025) (“[Section] 3553(a)(2)(A) speaks
only to ‘offense,’ and ‘offense’ here can mean only the underlying criminal
conviction. . . .”). Thus, although the cases Kennedy cites would support his
6 appeal if the district court had discussed his underlying criminal conviction, they
say nothing whatsoever about whether courts may consider the conduct
underlying the violation of supervised release when fashioning a revocation
sentence.
As it turns out, we have long recognized that district courts may consider
the seriousness of the conduct underlying a violation of supervised release when
imposing a new sentence following revocation. In United States v. Ramos, for
example, we noted that, while “a sentence for a violation of supervised release
should primarily sanction the defendant’s ‘breach of trust,’ . . . this does not mean
that a district court cannot consider the seriousness of the violation conduct. Of
course it can.” 979 F.3d 994, 1002 (2d Cir. 2020) (quoting United States v. Edwards,
834 F.3d 180, 194 (2d Cir. 2016)). Accordingly, the district court’s consideration of
the violent, criminal conduct underlying Kennedy’s violations of supervised
release (as well as the fact that he committed these violations after being ordered
by the district court to have no contact with the victim) were clearly relevant facts
for it to consider when fashioning a new term of supervised release. Section
3583(c) does not suggest otherwise.
7 It also bears noting that the district court discussed several factors
specifically set forth in section 3583(c) when explaining the revocation sentence,
including the new term of supervised release. First, the district court considered
the rehabilitative purpose of the sentence, which would “help [Kennedy] curb the
violence that we’ve seen and manage the anger, especially with respect to a
domestic partner.” App’x at 101. Second, the district court considered the
“forward-looking” goals of the sentence, Esteras, 606 U.S. at 186 (emphasis
omitted), including the need to specifically deter Kennedy from engaging in such
conduct in the future. The district court expressly noted that the new sentence
would require Kennedy to learn a “hard lesson” about the unacceptability of his
behavior, and that this lesson was necessary for his reintegration into society.
App’x at 102. And finally, the district court discussed the importance of protecting
the public from additional acts of violence in the future, which the term of
supervised release could help achieve by keeping Kennedy under the court’s
watchful eye and providing the court with tools to intervene should he violate
again. See United States v. Alvarado, 720 F.3d 153, 158 (2d Cir. 2013) (noting that a
term of supervised release can “provide an added measure of deterrence and
protection [of the public]” (internal quotation marks omitted)); Williams, 998 F.3d
8 at 542 (noting that defendant’s “term of supervised release . . . was clearly justified
by the need to protect children”).
Because the district court considered multiple factors under section 3583(c)
for Kennedy’s sentence, including those distinct from the seriousness of his
conduct, it did not plainly err in imposing its term of supervised release. As we
have stated, “once a district court has explained the basis for its sentence, [it] need
not provide a separate basis for a term of supervised release.” Williams, 998 F.3d
at 542. And we have long recognized a far lower “degree of specificity” is required
for sentencing after a violation of supervised release than for a sentencing after a
conviction. Smith, 949 F.3d at 66. Here, the district court offered ample reasons
for the term of supervised release that it imposed on Kennedy.
* * *
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court