United States v. Noeson

• Court: Court of Appeals for the Second Circuit
• Decided: June 26, 2026
• Docket: 25-477
• Status: Unpublished

Opinion

25-477 United States v. Noeson

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 26th day of June, two thousand twenty-six.

PRESENT:

DENNY CHIN, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 25-477

FRANK E. NOESON, III,

Defendant-Appellant. _____________________________________ For Defendant-Appellant: DANIEL S. NOOTER, Washington, D.C.

For Appellee: TIFFANY H. LEE, Assistant United States Attorney, for Michael DiGiacomo, United States Attorney for the Western District of New York, Buffalo, NY.

Appeal from a judgment of the United States District Court for the Western

District of New York (Lawrence J. Vilardo, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the February 20, 2025 judgment of the district

court is AFFIRMED in part and VACATED in part, and the case is REMANDED

in part. The remainder of the appeal is DISMISSED.

Frank Noeson appeals from a judgment following his plea of guilty to one

count of knowing receipt of child pornography in violation of 18 U.S.C.

§ 2252A(a)(2)(A), for which he was sentenced to 120 months’ imprisonment to be

followed by thirty years of supervised release. A former fifth-grade teacher in

Springville, New York, Noeson pleaded guilty after an FBI investigation revealed

that he had engaged in sexually explicit communications with two underage

females, Minor Female 1 (“MF1”) and Minor Female 2 (“MF2”), and received child

pornography. On appeal, Noeson argues that his sentence was procedurally and

substantively unreasonable because (i) the government withheld material

2 exculpatory evidence – namely, “a videotaped interview that the government

conducted with [MF2] outside the presence of [Noeson] or his counsel” – in

violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963), Noeson Br.

at 30, and (ii) the district court subsequently relied on this video at sentencing,

depriving Noeson “of his structural right to be present at and participate

meaningfully at” his sentencing, id. at 39. Noeson also asserts that his thirty-year

term of supervised release, “as well as all of the imposed ‘standard’ release

conditions and two of the ‘special’ release conditions, are procedurally and

substantively unreasonable.” Id. at 46. 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.

I. Noeson’s Challenges to His Term of Imprisonment and Term of Supervised Release Are Barred by the Appeal Waiver.

The government asserts that the appeal waiver in Noeson’s plea agreement

– which provides that Noeson “knowingly waives the right to appeal and

collaterally attack any component of a sentence imposed by the Court which falls

within or is less than a term of imprisonment of 60 to 135 months . . . and a period

of supervised release of 5 years to life,” App’x at 43 – bars his challenges “to the

3 120-month term of imprisonment and 30-year term of supervised release,” Gov’t

Br. at 19 (capitalization altered). We agree.

“We review plea agreements, including waivers of the right to appeal, de

novo and in accordance with general principles of the law of contract.” United

States v. Green, 897 F.3d 443, 447 (2d Cir. 2018). While we construe ambiguities in

such waivers “strictly against the government,” id., their terms are “presumptively

enforceable if [they] ha[ve] been entered into knowingly, voluntarily, and

competently,” United States v. Lajeunesse, 85 F.4th 679, 692 (2d Cir. 2023) (internal

quotation marks omitted). In part to protect defendants’ ability to meaningfully

negotiate with the government before deciding whether to plead guilty or stand

trial, we have held that “[e]xceptions to th[e] presumption [of enforceability]

occupy a very circumscribed area of our jurisprudence.” Id. (internal quotation

marks omitted); see also United States v. Borden, 16 F.4th 351, 354–55 (2d Cir. 2021).

Indeed, we have identified “only five circumstances where we will not enforce a

waiver: (1) where the waiver was not made knowingly, voluntarily, and

competently; (2) where the sentence was based on constitutionally impermissible

factors, such as ethnic, racial, or other prohibited biases; (3) where the government

breached the agreement containing the waiver; (4) where the district court failed

4 to enunciate any rationale for the defendant’s sentence; and (5) where the waiver

was unsupported by consideration.” Cook v. United States, 84 F.4th 118, 122 (2d

Cir. 2023) (alterations adopted and citation and internal quotation marks omitted).

This case involves none of these circumstances.

To begin, Noeson’s 120-month sentence and thirty-year term of supervised

release fell within the ranges outlined in the plea agreement; in fact, the term of

imprisonment fell well below Noeson’s Guidelines range of 168 to 210 months.

During the plea colloquy, Noeson unambiguously acknowledged that “so long as

[the district court] sentence[d him] to 135 months or less” and “a period of

supervised release of five years to life,” he would “waive [his] right to appeal the

sentence” and term of supervised release. App’x at 81–82. The magistrate judge

then carefully reviewed the plea agreement with Noeson and confirmed that his

plea was “voluntarily, knowingly, and intentionally made, and that [he] . . . had

the advice of counsel of a competent attorney.” Id. at 88. Noeson filed no

objections to the magistrate judge’s report and recommendation, which the district

court adopted in accepting Noeson’s guilty plea.

Nothing in the record suggests that the district court relied on

“constitutionally impermissible factors” in sentencing Noeson, that the

5 government breached the plea agreement, or that the district court “failed to

enunciate any rationale for [Noeson’s] sentence.” Cook, 84 F.4th at 122 (internal

quotation marks omitted); see App’x at 131–34 (district court explaining the

reasons for its sentence). And there can be no doubt that the government

provided consideration for the bargain by “waiv[ing] its right to appeal any

component of a sentence imposed by the Court [that] falls within or is greater than

a term of imprisonment of 60 to 135 months.” App’x at 43. Because Noeson’s

“sentence was reached in a manner that the plea agreement . . . anticipate[d],”

Lajeunesse, 85 F.4th at 693 (internal quotation marks omitted), we conclude that the

appeal waiver forecloses the challenge to his term of imprisonment and

supervised release. 1 See United States v. Pearson, 570 F.3d 480, 485 (2d Cir. 2009)

(“[I]n no circumstance may a defendant, who has secured the benefits of a plea

agreement and knowingly and voluntarily waived the right to appeal a certain

1 After briefing and oral argument concluded, the Supreme Court decided Hunter v. United States, No. 24-1063, 608 U.S. ---, 2026 WL 1751815 (U.S. June 18, 2026). There, the Court held “that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice – meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.” Id. at *4. Notwithstanding his arguments to the contrary, see Noeson Fed. R. App. P. 28(j) Letter, Noeson cannot satisfy the “high bar” necessary for a miscarriage-of-justice exception, which applies only in “extreme cases” where “the justice system’s basic integrity is at stake,” Hunter, 2026 WL 1751815, at *8.

6 sentence, then appeal the merits of a sentence conforming to the agreement.”

(alteration adopted and internal quotation marks omitted)).

Noeson nonetheless seeks to evade the waiver in his plea agreement by

alleging that “[t]he government plainly suppressed favorable evidence, in

violation of Brady, when it withheld” a May 2023 forensic-video interview that the

FBI conducted with MF2, from whom Noeson “solicit[ed] pornographic images.”

Noeson Br. at 35–36; see also Reply Br. at 23. He maintains that the video was

“material” to his defense because “it included information necessary to impeach

the government’s uncharged allegations” that, among other things, “Noeson had

solicited MF2 to fondle her brothers and to take pictures of other girls in her school

bathroom.” Noeson Br. at 35 (citing PSR ¶ 41). We are unpersuaded.

We have never held that a Brady violation vitiates an otherwise enforceable

appeal waiver. But even assuming that it could, Noeson has not established a

Brady violation here. “Generally, to establish that a Brady violation has occurred

before a guilty plea, a defendant must show that (1) the government failed to

disclose exculpatory evidence, and (2) the evidence was material.” United States

v. Overton, 24 F.4th 870, 878 (2d Cir. 2022). Here, Noeson’s trial counsel reviewed

the video at the U.S. Attorney’s Office in December 2023 prior to Noeson’s guilty

7 plea. 2 See Noeson Br. at 16 (acknowledging that “Noeson’s trial counsel . . .

view[ed] the video at the U.S. Attorney’s Office”). In advance of the sentencing

hearing, the government disclosed to both the district court and Noeson that it

planned to include the video as part of its sentencing submission. Noeson did

not object, and as noted above, his counsel had already reviewed the video prior

to Noeson’s guilty plea. It therefore cannot be argued that the government’s

submission of the video to the district court was somehow “ex parte.” See Ex Parte,

Black’s Law Dictionary 722 (11th ed. 2019) (“[W]ithout notice to or argument from

the adverse party”). And it certainly was not withheld. 3 Noeson’s Brady

challenge is therefore without merit.

II. The District Court Did Not Abuse Its Discretion in Imposing Special Conditions 7 and 10 of Noeson’s Supervised Release.

Noeson next argues that Special Conditions 7 and 10 of his supervised

release – which require him (i) “to abstain from the use of alcohol” both “[w]hile

2 Noeson’s appellate counsel also viewed the video at the U.S. Attorney’s Office for the District of Columbia in September 2025, and the government provided an eleven-page transcript of the interview to counsel prior to his appeal. In addition, this Court granted Noeson’s motion – over the government’s objection – to file the redacted transcript as a Confidential Appendix. 3 Noeson further asserts that the district court committed procedural error and “deprived” him of “his structural right to be present at and participate meaningfully” in his sentencing because the government submitted a copy of the video interview “ex parte to the district court” for in camera review and then relied on that video at sentencing. Noeson Br. at 39. But this is merely a variation of his Brady argument, and fails for the same reasons described above.

8 in treatment and after discharge from treatment,” and (ii) to refrain from

“incur[ring] any form of debt including, but not limited to, use of existing credit

cards, new credit cards, lines of credit, mortgages or private loans without the

approval of the U.S. Probation Office” “[w]hile a fine, restitution[,] or assessment

balance is outstanding” – are procedurally and substantively unreasonable. 4

App’x at 146; see Noeson Br. at 46. We disagree.

District courts “retain[] wide latitude in imposing conditions of supervised

release, and we therefore review a decision to impose a condition for abuse of

discretion.” United States v. Kunz, 68 F.4th 748, 758 (2d Cir. 2023) (internal

quotation marks omitted). A district court may order special conditions of

supervised release “so long as they are reasonably related to: (A) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(B) the need for the sentence imposed to afford adequate deterrence to criminal

conduct; (C) the protection of the public; and (D) the rehabilitative and medical

care needs of the defendant.” United States v. Parisi, 821 F.3d 343, 348 (2d Cir.

2016) (internal quotation marks omitted); see also 18 U.S.C. § 3583(d). And

4 The government acknowledges that “[Noeson’s] appeal waiver does not apply to the conditions of [his] supervised release.” Gov’t Br. at 41.

9 because Noeson concedes that he did not object to his special conditions of

supervised release in the district court, we review for plain error.

“To establish plain error, a defendant must demonstrate: (1) error, (2) that

is plain, and (3) that affects substantial rights.” United States v. Bleau, 930 F.3d 35,

39 (2d Cir. 2019) (internal quotation marks omitted). “If all three conditions are

met, we will then exercise our discretion to rectify this forfeited error only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks omitted); see Fed. R. Crim. P. 52(b).

Finally, to be plain, an error must be “clear” under “binding precedent from the

Supreme Court or this Court,” or “so egregious and obvious as to make the trial

judge and prosecutor derelict in permitting it, despite the defendant’s failure to

object.” United States v. Esteras, 102 F.4th 98, 108 (2d Cir. 2024) (internal quotation

marks omitted).

Notwithstanding his conviction for “driving while ability impaired” in

2001, PSR ¶ 94 (capitalization altered); see id. ¶ 62, Noeson contends that “there is

no basis in the record” for Special Condition 7 because the PSR indicates neither a

history with “problem drinking” nor an “indication that alcohol . . . played any

role in the instant offense,” Noeson Br. at 52–53. But Special Condition 7 requires

10 Noeson to refrain from using alcohol “[w]hile in treatment and after discharge

from treatment” “if substance abuse is indicated by [drug/alcohol] testing.”

App’x at 146 (emphasis added); see id. at 123. Because Noeson has not yet begun

his term of supervision – and therefore no “substance abuse [has been] indicated

by the testing” – this claim necessarily “depends upon contingent future events

that may not occur as anticipated, or indeed may not occur at all.” United States

v. Traficante, 966 F.3d 99, 107 (2d Cir. 2020) (internal quotation marks omitted). It

is thus not ripe for our review.

Noeson’s argument as to Special Condition 10 also fails, though for different

reasons. Special Condition 10 tracks the language of the advisory Sentencing

Guidelines, which recommends “prohibiting the defendant from incurring new

credit charges or opening additional lines of credit without approval of the

probation officer unless the defendant is in compliance” with the “payment

schedule” for his outstanding court-imposed financial obligations. U.S.S.G.

§ 5D1.3(b)(3)(B) (Nov. 2025 update); cf. United States v. Thomas, 299 F.3d 150, 154

(2d Cir. 2002) (underscoring that “[b]ecause the [d]istrict [c]ourt required [the

defendant] to pay restitution, the Guidelines recommend the imposition of” a

special condition “mirror[ing]” now-section 5D1.3(b)(3)(B)). Here, the district

11 court imposed (i) a $100 special assessment; (ii) a $2,000 assessment under the

Amy, Vicky, and Andy Child Pornography Victim Assistance Act, see 18 U.S.C.

§ 2259A, due immediately; and (iii) a $5,000 mandatory assessment under the

Justice for Victims of Trafficking Act, see 18 U.S.C. § 3014(a)(2), also due

immediately. By requiring Noeson to refrain from incurring new debts while he

complied with these financial obligations – which were statutorily required and

“reasonably related” to “the nature and circumstances of [Noeson’s] offense”

Parisi, 821 F.3d at 348 (internal quotation marks omitted) – the district court did

not abuse its discretion.

Nor did Special Condition 10 improperly “delegate to the Probation

Department decision[-]making authority [that] would make [Noeson’s] liberty

itself contingent on a probation officer’s exercise of discretion.” United States v.

Matta, 777 F.3d 116, 122 (2d Cir. 2015). To the contrary, the special condition

requires Noeson to refrain from incurring new debt, and it grants Probation the

ability to relax that condition only if Noeson pays his assessments. In other

words, the condition authorizes Probation to “execut[e] [Noeson’s] sentence, but

not [to] impos[e] it.” Id. (citation and internal quotation marks omitted). On

plain-error review, we cannot conclude that the district court abused its broad

12 discretion in imposing Special Conditions 7 and 10. See Esteras, 102 F.4th at 108;

Thomas, 299 F.3d at 154 (voicing no delegation concerns with a similarly worded

special condition).

III. A Limited Remand is Appropriate Given Our Decision in Maiorana.

Finally, the government concedes that “Noeson is entitled to a limited

remand for the district court to amend the written judgment as to eleven of the

thirteen discretionary ‘standard’ conditions of supervised release that were not

pronounced in open court.” Gov’t Br. at 17. We agree.

In Maiorana, we held that “a sentencing court intending to impose

non-mandatory conditions of supervised release, including the ‘standard’

conditions described in [U.S.S.G.] § 5D1.3(c), must notify the defendant during the

sentencing proceeding.” United States v. Maiorana, 153 F.4th 306, 314 (2d Cir.

2025) (en banc); see also id. at 314 n.11 (applying this “new rule of criminal

procedure” to “cases currently on direct review”). We made clear that “if the

conditions are not pronounced, they may not later be added to the written

judgment.” Id. at 314.

Here, the sentencing predated Maiorana, and the district court did not

pronounce Standard Conditions 2–9 and 11–13 of Noeson’s supervised release

before including them in the written judgment. The court likewise did not

13 “specifically incorporate by reference particular conditions that ha[d] been set

forth in writing and made available to” Noeson. Id. And these conditions were

not included in the PSR or discussed at Noeson’s sentencing hearing. The

government has therefore conceded that a remand is appropriate in light of

Maiorana. Though we “of course, [are] not bound to accept the [g]overnment’s

concession that the court[] below erred on a question of law,” Orloff v. Willoughby,

345 U.S. 83, 87 (1953), we agree that vacatur of Standard Conditions 2–9 and 11–13

is appropriate to ensure that Noeson is “afforded the constitutionally grounded

protections encompassed by the right to be present at sentencing,” Maiorana, 153

F.4th at 314. On remand, the district court should address these standard

conditions of Noeson’s supervised release in accordance with the procedures laid

out in Maiorana. See id. at 315.

However, because the district court did orally impose two of the standard

conditions – one directing Noeson to “report in person to the probation office in

the district where he is released” within “72 hours of [his] release from [the]

custody of the Bureau of Prisons,” App’x at 122 (Standard Condition 1), and the

other prohibiting Noeson from “possess[ing] a firearm, ammunition, or other

dangerous device,” id. at 122–23 (Standard Condition 10) – we affirm their

14 imposition. To the extent that Noeson objects to any inconsistencies between the

district court’s pronouncement of these conditions and the written judgment, any

discrepancy was non-substantive, cf. United States v. Rosado, 109 F.4th 120, 125 (2d

Cir. 2024), and it is well established that “in the event of variation between an oral

pronouncement of sentence and a subsequent written judgment, the oral

pronouncement controls,” Maiorana, 153 F.4th at 310 (alteration rejected and

internal quotation marks omitted). Maiorana therefore poses no barrier to the

imposition of Standard Conditions 1 and 10.

* * *

For the reasons set forth above, we AFFIRM the imposition of Special

Conditions 7 and 10, as well as Standard Conditions 1 and 10, of Noeson’s

supervised release; DISMISS Noeson’s additional challenges to his sentence and

term of supervised release raised in the merits briefing pursuant to the appeal

waiver in his plea agreement; and VACATE the imposition of Standard

Conditions 2–9 and 11–13 of his supervised release. The case is REMANDED to

the district court for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court