United States v. Varieur

• Court: Court of Appeals for the Second Circuit
• Decided: February 28, 2025
• Docket: 24-985-cr (L)
• Status: Unpublished

Opinion

24-985-cr (L) United States v. Varieur

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 28th day of February, two thousand twenty-five.

PRESENT: JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. Nos. 24-985-cr (L), 24-2967-cr (CON)

JAMIE VARIEUR,

Defendant-Appellant.

------------------------------------------------------------------ FOR DEFENDANT-APPELLANT: Lucas Anderson, Rothman, Schneider, Soloway & Stern, LLP, New York, NY

FOR APPELLEE: Alexander Wentworth-Ping, Rajit S. Dosanjh, Assistant United States Attorneys, for Daniel Hanlon, Acting United States Attorney for the Northern District of New York, Syracuse, NY

Appeal from a judgment and order of the United States District Court for

the Northern District of New York (Anne M. Nardacci, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the April 5, 2024 judgment of the District Court is

AFFIRMED, the appeal of the District Court’s November 6, 2024 post-judgment

order is DISMISSED as moot, and the cause is REMANDED.

Appellant Jamie Varieur appeals from a judgment of the United States

District Court for the Northern District of New York (Nardacci, J.) sentencing her

to 364 days in prison and one year of supervised release, as well as a post-

judgment order insofar as it denies her motion for a sentence modification under

18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the underlying

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

explain our decision. 2 “The federal Assimilative Crimes Act [ACA] assimilates into federal law,

and thereby makes applicable on federal enclaves . . . , certain criminal laws of

the State in which the enclave is located.” Lewis v. United States, 523 U.S. 155, 158

(1998). Varieur pleaded guilty to one count of Second-Degree Criminal Trespass

under New York law, a federal crime under the ACA because it took place on

property owned by the United States Department of Veterans Affairs. The

District Court sentenced Varieur principally to three years of probation and

imposed certain conditions of probation.

Sixteen months later, Varieur admitted to violating the conditions of her

probationary sentence. Prior to her admission and sentencing on the violations,

the United States Sentencing Commission had promulgated Amendments 821

and 825, which, respectively, eliminated “status points” for criminal defendants

with six or fewer criminal history points and applied that change retroactively.

At sentencing, neither the District Court nor Varieur mentioned these

Amendments or their effect on her possible sentence. The District Court

calculated that Varieur’s recommended sentencing range of imprisonment was

six to twelve months and sentenced Varieur to 364 days in prison followed by a

one-year term of supervised release. Varieur timely appealed.

3 On appeal, Varieur moved in this Court to remand for resentencing to

permit the District Court to apply Amendment 821. Varieur then also filed a

motion directly in the District Court seeking an indicative ruling for a

modification of her sentence under 18 U.S.C. § 3582(c)(2) in light of Amendment

821. When the District Court denied the motion, Varieur also appealed the

denial. Varieur completed her term of imprisonment in December 2024.

I. Mootness

Varieur first argues that the District Court erred when it denied her motion

for a sentence modification under 18 U.S.C. § 3582(c)(2). When a defendant

challenging her sentence has been released from prison while her appeal is

pending, her challenge is moot even if she is still serving a term of supervised

release, so long as there is “no possibility or only a remote and speculative

possibility” that the district court would impose a reduced term of supervised

release upon remand. United States v. Key, 602 F.3d 492, 494 (2d Cir. 2010)

(quotation marks omitted).

That is the case here. Varieur’s motion under 18 U.S.C. § 3582(c)(2) was

governed by U.S.S.G. § 1B1.10, see United States v. Erskine, 717 F.3d 131, 135 (2d

Cir. 2013), which provides that when a court cannot reduce a term of

4 imprisonment for practical reasons, it may terminate a term of supervised release

if permitted to do so under 18 U.S.C. § 3583(e)(1), see U.S.S.G. § 1B1.10 cmt. 8(B).

Section 3583(e)(1) in turn authorizes a termination of supervised release only if

the defendant has served more than one year of supervised release. 18 U.S.C.

§ 3583(e)(1). Varieur, who was sentenced to exactly one year of supervised

release, is thus ineligible for a sentence modification under § 3583(e)(1). Her

claim under Section 3582(c)(2) is therefore moot. Key, 602 F.3d at 494.

“When a case becomes moot on appeal, the established practice in the

federal system is to reverse or vacate the judgment below and remand with a

direction to dismiss.” Hassoun v. Searls, 976 F.3d 121, 130 (2d Cir. 2020) (cleaned

up). Accordingly, we dismiss as moot Varieur’s appeal of the District Court’s

order, vacate that order insofar as it denies her motion for a sentence

modification under Section 3582(c)(2), and remand with instruction to dismiss as

moot Varieur’s motion under Section 3582(c)(2).

II. Ineffective Assistance of Counsel

Varieur next contends that she received ineffective assistance of counsel at

her probation revocation sentencing because her lawyer (1) failed to draw the

District Court’s attention to Amendments 821 and 825 and to argue that the

5 Amendments reduced the Guidelines range for her original criminal trespass

conviction and thus her revocation of probation, and (2) failed to argue that a

one-year term of supervised release is not authorized under the ACA or New

York law. 1

We disagree. As to the first argument, a district court sentencing a

defendant for a probation violation is neither “restricted by the original

Sentencing Guidelines range applicable to his or her [underlying] crime” nor

required to make a specific “departure therefrom.” United States v. Goffi, 446 F.3d

319, 323 (2d Cir. 2006) (quotation marks omitted); see also U.S.S.G. § 7B1.3(b)

(“[T]he applicable range of imprisonment [for probation violations] is that set

forth in § 7B1.4.”). Nor are we persuaded that Varieur’s trial counsel should

have informed the District Court that the Amendments lowered her criminal

history category for purposes of U.S.S.G. § 7B1.4. “The criminal history

category” relevant to sentencing for probation violations “is the category

applicable at the time the defendant originally was sentenced to a term of

1 Varieur’s ineffective assistance claims, by contrast, are not moot, since we could in principle remand for plenary resentencing if we find that they are meritorious. See Pepper v. United States, 562 U.S. 476, 507 (2011). We conclude that we can resolve Varieur’s ineffective assistance claims on this direct appeal on the present record. See United States v. Ortiz, 100 F.4th 112, 118 (2d Cir. 2024). 6 supervision.” U.S.S.G. § 7B1.4(a) n.*; see also United States v. Leon, 663 F.3d 552,

554 (2d Cir. 2011). We have not yet addressed whether Amendment 821 reduces

a defendant’s criminal history category during a probation revocation

proceeding. We cannot conclude that Varieur’s trial counsel was ineffective for

failing to raise an “open question, one not yet squarely decided either by [the

Supreme Court] or this Circuit.” Parisi v. United States, 529 F.3d 134, 141 (2d Cir.

2008).

Finally, we reject Varieur’s argument that her lawyer provided ineffective

assistance by failing to argue that the District Court was prohibited from

imposing a one-year term of supervised release based on an ACA conviction for

criminal trespass under New York law. As relevant here, Varieur was sentenced

after violating the conditions of her probation, not for her underlying ACA

crime. After revoking Varieur’s probation and imposing a term of

imprisonment, the District Court was clearly also entitled to impose a term of

supervised release. See U.S.S.G. § 7B1.3(g)(1). This Court has not even addressed

whether supervised release remains available as part of a sentence for a

conviction under the ACA when it is not otherwise contemplated by state law.

Accordingly, Varieur has not demonstrated, “from [her] attorney’s perspective at

7 the time, that it was objectively unreasonable not to” raise the argument at

sentencing. Parisi, 529 F.3d at 141.

We have considered Varieur’s remaining arguments and conclude that

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

Court is AFFIRMED, the appeal of the District Court’s post-judgment order is

DISMISSED as moot, the order is VACATED insofar as it denies her motion

under Section 3582(c)(2), and the cause is REMANDED with instructions to

dismiss Varieur’s motion as moot, consistent with this order.

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