22-2085(L)
United States v. Zinszer
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 20th day of August, two thousand twenty-six. 4 5 Present: 6 JOSÉ A. CABRANES, 7 DEBRA ANN LIVINGSTON, 8 WILLIAM J. NARDINI, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. 22-2085(L), 22-2097(Con) 17 18 GLEN ZINSZER, 19 20 Defendant-Appellant, 21 _____________________________________ 22 23 For Appellee: GEOFFREY J.L. BROWN (Rajit S. Dosanjh, on the 24 brief), Assistant United States Attorneys for Carla B. 25 Freedman, United States Attorney for the Northern 26 District of New York, Syracuse, NY. 27 28 For Defendants-Appellants: WILLIAM C. SULLIVAN, Law Office of William C. 29 Sullivan, Syracuse, NY.
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1 Appeal from a judgment of the United States District Court for the Northern District of 2 New York (Scullin, J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Defendant-Appellant Glen Zinszer (“Zinszer”) appeals from a judgment of the United 6 States District Court for the Northern District of New York entered September 19, 2022, 7 convicting him, after a guilty plea, of one count of filing a false tax return in violation of 26 U.S.C. 8 § 7206(1) and one count of wire fraud in violation of 18 U.S.C. § 1343. 9 The district court sentenced Zinszer principally to 51 months’ imprisonment, followed by 10 three years’ supervised release, and ordered forfeiture. As relevant here, the court imposed two 11 conditions of supervised release, Conditions 14 and 15, that are not included as standard conditions 12 under the Sentencing Guidelines, see U.S.S.G. § 5D1.3(c), but were adopted as “standard 13 conditions” by the United States District Court for the Northern District of New York pursuant to 14 General Order #23. The district court also ordered Zinszer to pay restitution in the amount of 15 “$286,122 to the Internal Revenue Service” and “$2,763,811.30 to the victims” of his scheme to 16 defraud. App’x 83. The court orally imposed a forfeiture amount of $2,760,811.30 “pursuant to 17 the Preliminary Order of Forfeiture,” App’x 84, but the Preliminary Order itself, and the following 18 written judgment, included a forfeiture amount of $2,763,811.30. App’x 94. 19 On appeal, Zinszer argues the district court erred (1) by imposing Conditions 14 and 15 in 20 the written judgment without orally pronouncing those conditions at sentencing; and (2) by 21 entering a written judgment ordering the forfeiture of an amount $3,000 greater than the amount 22 pronounced orally at sentencing. We assume the parties’ familiarity with the underlying facts, the
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1 procedural history of the case, and the issues on appeal, which we set forth in this summary order 2 only as necessary to explain our decision to AFFIRM. 3 * * * 4 On appeal, Zinszer first challenges the imposition of Conditions 14 and 15 pursuant to the 5 Northern District’s Order #23. He argues that, because these non-mandatory conditions were not 6 orally pronounced, and do not clarify an ambiguity in the sentence as orally pronounced, they must 7 be vacated. We disagree. 8 We generally review “the imposition of supervised release conditions for abuse of 9 discretion.” United States v. Oliveras, 96 F.4th 298, 304 (2d Cir. 2024). When a defendant had 10 an opportunity to make objections and “failed to raise them before the district court at sentencing,” 11 the Court generally reviews for plain error. United States v. Dupes, 513 F.3d 338, 343 (2d Cir. 12 2008) (citing United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002)). However, unobjected-to 13 supervised release conditions are reviewed for plain error only if the defendant had a meaningful 14 “opportunity to object to them.” United States v. Maiorana, 153 F.4th 306, 310 (2d Cir. 2025) (en 15 banc). 16 “A defendant is guaranteed the right to be present at any stage of the criminal proceeding 17 that is critical to its outcome if his presence would contribute to the fairness of the procedure.” 18 Maiorana, 153 F.4th at 313 (alteration omitted). “The right to presence generally requires that the 19 terms of a defendant’s sentence be orally pronounced by the court in the defendant’s presence at 20 the sentencing proceeding.” Id. at 310. In Maiorana, we held “that a sentencing court intending 21 to impose non-mandatory conditions of supervised release . . . must notify the defendant during 22 the sentencing proceeding; if the conditions are not pronounced, they may not later be added to 23 the written judgment.” Id. at 314. Because “Conditions 14 and 15 are discretionary special
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1 conditions,” United States v. McAdam, 165 F.4th 688, 696 (2d Cir. 2026), the district court could 2 not impose them absent “prior notice or pronouncement,” Maiorana, 153 F.4th at 313. We have 3 recently clarified, however, that “[a] reference to a written list of conditions,” like the district 4 court’s here, “is enough to afford a defendant the opportunity to challenge the conditions of 5 supervised release, which is all that due process requires.” United States v. Matos, No. 22-1561, 6 2026 WL 2339567, at *8 (2d Cir. Aug. 13, 2026). Accordingly, “the district court did not violate 7 [Zinszer’s] right to oral pronouncement because its reference to ‘the standard conditions that have 8 been adopted by this court,’ specifically incorporated by reference particular conditions that had 9 been set forth in writing and made available to the defendant in . . . a notice adopted by the court.” 10 Id. (citation omitted). 11 Zinszer next challenges the district court’s imposition of a forfeiture amount in the written 12 judgment that is $3,000 greater than the amount orally pronounced at sentencing. This challenge 13 is likewise unavailing. The government argues that Zinszer forfeited appellate review of the 14 discrepancy between the oral pronouncement and the written judgment because he did not seek 15 relief pursuant to Fed. R. Crim. P. 35, which permits the court to “correct a sentence that resulted 16 from arithmetical, technical, or other clear error” if raised within “14 days after sentencing.” 17 Appellee Br. at 46; Fed. R. Crim. P. 35(a). This failure, the government argues, compels us to 18 review Zinszer’s appeal only for plain error. See Fed. R. Crim. P. 52(b). But we have also held 19 that the discrepancy between the “spoken and written terms of a defendant’s sentence” are 20 reviewed de novo even when “the defendant has failed to raise the issue in district court.” See 21 United States v. Rosado, 109 F.4th 120, 123–24 (2d Cir. 2024); United States v. Washington, 904 22 F.3d 204, 207 (2d Cir. 2018). Here, this distinction makes no difference. Even assuming arguendo 23 that we review the judgment de novo, we discern no error in its clarification of the orally
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1 pronounced forfeiture amount. 2 Reviewing the discrepancy between the oral and written terms of Zinszer’s forfeiture 3 amount, we begin with Fed. R. Crim. P. 43(a)’s edict that the defendant be present at the imposition 4 of sentence. As a corollary of this rule, “in the event of variation between an oral pronouncement 5 of sentence and a subsequent written judgment, the oral pronouncement controls, and any 6 burdensome punishments or restrictions added in the written judgment must be removed.” United 7 States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004) (internal citations and footnote omitted). 8 However, “it is not reversible error for a sentencing court to impose probation conditions without 9 mentioning them orally at sentencing where the challenged conditions clarify, rather than conflict 10 with, the sentence imposed orally.” United States v. Jacques, 321 F.3d 255, 265 (2d Cir. 2003); 11 see also Washington, 904 F.3d at 208 (giving effect to a written judgment that “clarif[ies] the terms 12 of the spoken sentence”). 13 Here, the written judgment permissibly clarified an ambiguity in the court’s oral 14 pronouncement of the forfeiture amount. The district court issued a preliminary order of forfeiture 15 in the amount of $2,763,811.30. At sentencing, the court pronounced that “[t]here’s also a 16 forfeiture order that must be imposed . . . in the amount of $2,760,811.30 pursuant to the 17 Preliminary Order of Forfeiture,” seeming to erroneously provide an amount that is $3,000 less 18 that the amount included in the Preliminary Order of Forfeiture. This discrepancy between the 19 amount the district court stated it was imposing “pursuant to the Preliminary Order of Forfeiture” 20 and the amount actually included in that order, created an ambiguity regarding the amount 21 imposed. By issuing a written judgment that clarified which of these two amounts Zinszer was 22 ordered to forfeit, the district court did not add a new or burdensome condition but instead 23 permissibly clarified an ambiguity. Thus, we affirm the forfeiture order.
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1 * * * 2 We have considered Appellant’s remaining arguments and find them to be without merit. 3 Accordingly, the judgment of the district court is AFFIRMED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk