United States v. Ross

• Court: Court of Appeals for the Second Circuit
• Decided: January 8, 2025
• Docket: 23-7210-cr
• Status: Unpublished

Opinion

23-7210-cr United States v. Ross

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 January, two thousand twenty-five.

PRESENT: RAYMOND J. LOHIER, JR., JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 23-7210-cr

KEYAWNIA ROSS,

Defendant-Appellant. ------------------------------------------------------------------ FOR APPELLEE: Susan Corkery, Laura Zuckerwise, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY

FOR DEFENDANT-APPELLANT: Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, NY

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

District of New York (Frederic Block, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-Appellant Keyawnia Ross appeals from a September 26, 2023

judgment of the United States District Court for the Eastern District of New York

(Block, J.) convicting her, after a guilty plea, of two counts of theft of public funds

in violation of 18 U.S.C. § 641. The District Court ordered restitution in the

amount of $15,800 and sentenced Ross to two years’ probation. On appeal, Ross

challenges only the special condition of probation requiring her to seek prior

approval from a probation officer before opening new financial accounts (the

“special financial condition”). We assume the parties’ familiarity with the

underlying facts and the record of prior proceedings, to which we refer only as

2 necessary to explain our decision to affirm.

At Ross’s sentencing hearing, the District Court noted that the Probation

Office “recommend[ed] two years of [p]robation on each count to run

concurrently with some special conditions. There is an order of restitution,

which we’ll talk about. And there has to be full disclosure of financial records,

and I assume that you have no objection to that.” App’x 58–59. Ross’s counsel

responded “[y]es, your honor.” Id. at 59. When pronouncing Ross’s sentence,

the District Court stated that “we already mentioned that we have these two

special conditions . . . where [Ross] has to comply with the order of restitution

and [Ross] has to make full disclosure of her financial circumstances under the

supervision of the Probation Department.” App’x 67. No party objected. Id.

The court later issued a written judgment that includes a special condition

prohibiting Ross from “maintaining and/or opening any . . . checking, savings, or

other financial accounts” other than those listed in the presentence investigation

report (“PSR”) “without the knowledge and approval of the U.S. Probation

Department.” App’x 73.

Ross argues that this special condition was not orally pronounced at her

sentencing hearing and should be stricken from her sentence.

3 We review de novo challenges to discrepancies between the oral

pronouncement of a defendant’s sentence and the written terms included in the

judgment, United States v. Washington, 904 F.3d 204, 207 (2d Cir. 2018), unless the

defendant had an opportunity to object and failed to do so, in which case we

review for plain error, United States v. Dupes, 513 F.3d 338, 342–43 & n.2 (2d Cir.

2008). Assuming without deciding that de novo review is called for, we affirm

the District Court’s judgment.

Federal Rule of Criminal Procedure 43(a) “requires that the defendant be

present at the imposition of sentence.” United States v. Thomas, 299 F.3d 150, 152

(2d Cir. 2002) (cleaned up). This rule “require[s] that the sentencing court orally

pronounce special conditions in open court, and when there is a conflict between

the court’s unambiguous oral pronouncement of a special condition and the

written judgment, the oral pronouncement controls.” United States v. Sims, 92

F.4th 115, 125 (2d Cir. 2024).

We have derogated from this general rule and allowed a written modification of the spoken sentence only in cases in which the modification added a condition of supervised release classified as “mandatory,” “standard,” or “recommended” in United States Sentencing Guidelines sections 5D1.3(a), (c), and (d) or added mere basic administrative requirements that are necessary to supervised release.

4 Washington, 904 F.3d at 208 (quotation marks omitted). So a discrepancy

between the oral pronouncement and the written judgment does not necessarily

violate this rule as long as the writing “clarif[ies], rather than conflict[s] with, the

sentence imposed orally.” United States v. Jacques, 321 F.3d 255, 265 (2d Cir.

2003).

Notwithstanding the deviation between the District Court’s exact words at

the sentencing hearing and the language contained in the written judgment, the

Government argues that the District Court’s reference to the special conditions

recommended by Probation was clear in context. We agree.

A court may “indicate that it w[ill] incorporate the conditions”

recommended by Probation without repeating those conditions in full. Thomas,

299 F.3d at 152. Here, the District Court’s reference at sentencing to the

Probation Office’s “recommendation . . . [of] some special conditions,”

incorporated the full terms recommended by the Probation Office.

Because the written judgment matches Probation’s sentencing

recommendation and the District Court sufficiently incorporated it by reference

at sentencing, the written judgment “clarif[ies], rather than conflict[s] with, the

5 sentence imposed orally.” Jacques, 321 F.3d at 265. Accordingly, we see no

error in the District Court’s written judgment.

CONCLUSION

We have considered Ross’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the judgment of the District Court

is AFFRIMED.

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