22-1024 U.S. v. King
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 17th day of October, two thousand twenty-three.
PRESENT: JOHN M. WALKER, JR., DENNY CHIN, BETH ROBINSON, Circuit Judges. _________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 22-1024
JAMES KING,
Defendant-Appellant. _________________________________________ FOR APPELLANT: Lisa A. Peebles, Federal Public Defender, Molly K. Corbett, Assistant Federal Public Defender, Albany, NY.
FOR APPELLEE: Paul D. Silver, Alexander Wentworth-Ping, Assistant United States Attorneys for Carla B. Freedman, United States Attorney, Northern District of New York, Albany, NY
Appeal from a judgment of the United States District Court for the Northern
District of New York (Suddaby, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on April 29, 2022, is
AFFIRMED.
Defendant-Appellant James King appeals from a judgment entered on April
29, 2022, imposing a 78-month term of imprisonment followed by a four-year term
of supervised release with several special conditions of supervision. This sentence
stems from King’s conviction pursuant to a guilty plea for one count of possession
with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1).
On appeal, King challenges two of the special conditions: Special Condition
3, which prohibits the consumption of alcohol, requires alcohol testing, and
2 requires treatment for alcohol, and Special Condition 4, which prohibits the use,
possession, or sale of marijuana, or any marijuana derivative (including
cannabidiol (CBD) or THC) in any form and for any purpose. He argues that the
district court did not adequately explain its decision to impose Special Conditions
3 and 4, and that these conditions are substantively unreasonable. We assume the
parties’ familiarity with the underlying facts, procedural history, and arguments
on appeal, to which we refer only as necessary to explain our decision to affirm.
“District courts possess broad discretion in imposing conditions of
supervised release.” United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). A
district court may impose special conditions of supervised release 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.” U.S.S.G. § 5D1.3(b). The conditions
should “involve no greater deprivation of liberty than is reasonably necessary” for
3 these purposes. Id.; see also United States v. Myers, 426 F.3d 117, 123–25 (2d Cir.
2005).
When determining whether to impose special conditions, “[a] district court
is required to make an individualized assessment . . ., and to state on the record
the reason for imposing it; the failure to do so is error.” Betts, 886 F.3d at 202.
However, even when the district court does not provide such an explanation, the
condition at issue can be upheld “if the district court’s reasoning is self-evident in
the record.” Id. (internal quotation marks omitted).
We ordinarily review the imposition of a special condition of supervised
release for abuse of discretion. United States v. Dupes, 513 F.3d 338, 342–43 (2d Cir.
2008). However, because King did not object to the special conditions at
sentencing, we review for plain error. United States v. Smith, 949 F.3d 60, 66 (2d
Cir. 2020). Under the plain error standard, King bears the burden of showing: (1)
there was an error; (2) the error is “clear or obvious, rather than subject to
reasonable dispute”; (3) “the error affected [his] 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
4 proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in
original) (internal quotation marks omitted).
We discern no “clear or obvious” procedural or substantive error in the
district court’s imposition of Special Condition 3, relating to alcohol use, and
Special Condition 4, relating to the use of marijuana and its derivatives, including
THC and CBD.
In pronouncing its sentence, the district court considered King’s life-long
substance abuse issues, continuing until the time he was arrested on the charges
that gave rise to the conviction underlying this appeal. The district court explained
on the record that the special conditions were “necessary and justified” “based
upon the nature of the instant offense as well as [King’s] history and characteristics
. . . as outlined in detail in the presentence report and to promote [King’s]
rehabilitation.” App’x 131.
The presentence report further amplifies the district court’s reasons for
imposing Special Conditions 3 and 4. The report documents, as King himself
acknowledges, that he “has an extensive history of abusing various controlled
substances starting at 11 or 12 years old,” and his life “has been predominantly
driven by drug use.” Appellant’s Br. 3. And Special Condition 3 includes the
5 rationale within the condition itself: “Based upon your history of substance abuse,
and for the purpose of effective substance abuse treatment programming, you
must refrain from the use of alcohol and be subject to alcohol testing and treatment
while under supervision.” App’x 139.
In short, the district court adequately communicated the reasons for these
special conditions. And given King’s history and his conviction for possession
with intent to distribute a controlled substance, these conditions do not “clearly”
or “obviously” require a “greater deprivation of liberty than is reasonably
necessary” to serve the goals of sentencing, even recognizing that the record does
not reflect that alcohol use has undermined King’s past efforts in treatment for
substance use. Myers, 426 F.3d at 124. 1
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22-1024 U.S. v. King
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 17th day of October, two thousand twenty-three.
PRESENT: JOHN M. WALKER, JR., DENNY CHIN, BETH ROBINSON, Circuit Judges. _________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 22-1024
JAMES KING,
Defendant-Appellant. _________________________________________ FOR APPELLANT: Lisa A. Peebles, Federal Public Defender, Molly K. Corbett, Assistant Federal Public Defender, Albany, NY.
FOR APPELLEE: Paul D. Silver, Alexander Wentworth-Ping, Assistant United States Attorneys for Carla B. Freedman, United States Attorney, Northern District of New York, Albany, NY
Appeal from a judgment of the United States District Court for the Northern
District of New York (Suddaby, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on April 29, 2022, is
AFFIRMED.
Defendant-Appellant James King appeals from a judgment entered on April
29, 2022, imposing a 78-month term of imprisonment followed by a four-year term
of supervised release with several special conditions of supervision. This sentence
stems from King’s conviction pursuant to a guilty plea for one count of possession
with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1).
On appeal, King challenges two of the special conditions: Special Condition
3, which prohibits the consumption of alcohol, requires alcohol testing, and
2 requires treatment for alcohol, and Special Condition 4, which prohibits the use,
possession, or sale of marijuana, or any marijuana derivative (including
cannabidiol (CBD) or THC) in any form and for any purpose. He argues that the
district court did not adequately explain its decision to impose Special Conditions
3 and 4, and that these conditions are substantively unreasonable. We assume the
parties’ familiarity with the underlying facts, procedural history, and arguments
on appeal, to which we refer only as necessary to explain our decision to affirm.
“District courts possess broad discretion in imposing conditions of
supervised release.” United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). A
district court may impose special conditions of supervised release 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.” U.S.S.G. § 5D1.3(b). The conditions
should “involve no greater deprivation of liberty than is reasonably necessary” for
3 these purposes. Id.; see also United States v. Myers, 426 F.3d 117, 123–25 (2d Cir.
2005).
When determining whether to impose special conditions, “[a] district court
is required to make an individualized assessment . . ., and to state on the record
the reason for imposing it; the failure to do so is error.” Betts, 886 F.3d at 202.
However, even when the district court does not provide such an explanation, the
condition at issue can be upheld “if the district court’s reasoning is self-evident in
the record.” Id. (internal quotation marks omitted).
We ordinarily review the imposition of a special condition of supervised
release for abuse of discretion. United States v. Dupes, 513 F.3d 338, 342–43 (2d Cir.
2008). However, because King did not object to the special conditions at
sentencing, we review for plain error. United States v. Smith, 949 F.3d 60, 66 (2d
Cir. 2020). Under the plain error standard, King bears the burden of showing: (1)
there was an error; (2) the error is “clear or obvious, rather than subject to
reasonable dispute”; (3) “the error affected [his] 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
4 proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in
original) (internal quotation marks omitted).
We discern no “clear or obvious” procedural or substantive error in the
district court’s imposition of Special Condition 3, relating to alcohol use, and
Special Condition 4, relating to the use of marijuana and its derivatives, including
THC and CBD.
In pronouncing its sentence, the district court considered King’s life-long
substance abuse issues, continuing until the time he was arrested on the charges
that gave rise to the conviction underlying this appeal. The district court explained
on the record that the special conditions were “necessary and justified” “based
upon the nature of the instant offense as well as [King’s] history and characteristics
. . . as outlined in detail in the presentence report and to promote [King’s]
rehabilitation.” App’x 131.
The presentence report further amplifies the district court’s reasons for
imposing Special Conditions 3 and 4. The report documents, as King himself
acknowledges, that he “has an extensive history of abusing various controlled
substances starting at 11 or 12 years old,” and his life “has been predominantly
driven by drug use.” Appellant’s Br. 3. And Special Condition 3 includes the
5 rationale within the condition itself: “Based upon your history of substance abuse,
and for the purpose of effective substance abuse treatment programming, you
must refrain from the use of alcohol and be subject to alcohol testing and treatment
while under supervision.” App’x 139.
In short, the district court adequately communicated the reasons for these
special conditions. And given King’s history and his conviction for possession
with intent to distribute a controlled substance, these conditions do not “clearly”
or “obviously” require a “greater deprivation of liberty than is reasonably
necessary” to serve the goals of sentencing, even recognizing that the record does
not reflect that alcohol use has undermined King’s past efforts in treatment for
substance use. Myers, 426 F.3d at 124. 1
We recognize that the district court’s inclusion in Special Condition 4 of a
prohibition against possessing or using “any product containing cannabidiol
(CBD)” is not as clear-cut. App’x 139. CBD is not subject to the Controlled
Substances Act if it derives from hemp and is found in many consumer products
1 To the extent King argues that the district court erred by prohibiting his use of marijuana because marijuana use is already prohibited by mandatory conditions prohibiting King from committing another crime or unlawfully using a controlled substance, we conclude that the condition is not plain error. Marijuana use is not unlawful in some states, including New York State, where King intends to return, and the more specific condition avoids any ambiguity.
6 such as oils and lotions. See 21 U.S.C. § 802(16) (defining “marijuana”); see also
CBD: What You Need to Know, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/marijuana/featured-topics/CBD.html
[https://perma.cc/28SP-UNG4]. But on plain error review and this record, we
cannot say that the district court’s condition prohibiting the use of CBD amounts
to “clear or obvious” error. Marcus, 560 U.S. at 262. And if “new and unforeseen
circumstances” make King’s use of CBD appropriate or even useful, King can
always apply to the district court to modify Special Condition 4 to remove the ban
on CBD under 18 U.S.C. § 3583(e)(2). See, e.g., United States v. Balon, 384 F.3d 38,
47 (2d Cir. 2004) (“Section 3583(e) allows modification of supervised release ‘to
account for new and unforeseen circumstances’”) (quoting United States v. Lussier,
104 F.3d 32, 36 (2d Cir. 1997)).
For these reasons, we AFFIRM the district court’s judgment.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court