United States v. McLeod ( 2022 )

21-2642
United States v. McLeod
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 21st day of December, two thousand twenty-two.
PRESENT:
ROBERT D. SACK,
RICHARD J. SULLIVAN,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 21-2642
LENNIER MCLEOD,
Defendant-Appellant.
_____________________________________
For Defendant-Appellant: SARAH BAUMGARTEL, Federal Defenders of
New York, Inc., Appeals Bureau, New York,
NY.
For Appellee: ANDREW REICH (Amy Busa, on the brief),
Assistant United States Attorneys, for Breon
Peace, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Ann M. Donnelly, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Lennier McLeod appeals from a judgment of the district court revoking her
supervised release and sentencing her to time served and one additional year of
supervised release. McLeod argues principally that the district court lacked
jurisdiction to revoke her term of supervised release because the delay in
adjudicating her supervised-release violations was not “reasonably necessary”
under 18 U.S.C. § 3583(i). We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
In 2009, McLeod pleaded guilty in the Eastern District of Virginia to
conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, for which she
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was sentenced to forty-seven months’ imprisonment and five years’ supervised
release. 1 The conditions of supervised release prohibited McLeod from, among
other things, committing any further “federal, state or local crime[s].” App’x at
10. McLeod was released from custody in March 2013, at which point she
commenced her five-year term of federal supervision. Four years later, McLeod’s
supervision was transferred from the Eastern District of Virginia to the Eastern
District of New York, where McLeod was residing.
In August 2017, the United States Probation Office prepared a violation of
supervised release (“VOSR”) report alleging twenty-three separate violations of
the terms of McLeod’s supervision, twenty-two of which involved a $200,000
bank-fraud scheme being investigated by the New York City Police Department.
Upon receipt of the VOSR report, Judge Roslynn R. Mauskopf, to whom the
transferred case had been assigned, issued a summons ordering McLeod to
appear. After McLeod was presented on the specifications, she and the
government stipulated to an adjournment of the VOSR proceedings, which the
1 This time was to run consecutive to an undischarged sentence of twenty-four months imposed
for a separate conviction in the Western District of Tennessee, resulting in a total sentence of
seventy-one months.
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district court granted, pending resolution of the state charges underlying the
VOSR.
In December 2017, McLeod was arrested and charged in state court with
various state-law offenses, including retail theft, grand larceny, and criminal
possession of stolen property. For the next two and a half years, while those state
charges were pending, McLeod remained in state custody. During that period,
the district court issued several orders holding the VOSR proceedings in abeyance
pending resolution of the state charges. The district court also issued an arrest
warrant on the VOSR specifications, to serve as a detainer in the event that McLeod
were released from state custody.
In April 2020, the state court ordered that McLeod be released on her own
recognizance due to the COVID-19 pandemic. Shortly thereafter, McLeod’s
counsel requested that the district court vacate the previously issued warrant so
that McLeod’s release would not lead to her immediate remand into federal
custody. The district court granted that request and once again ordered that the
VOSR proceedings be held in abeyance pending resolution of the state charges.
Over the next eight months, the parties made, and the district court granted,
several renewed requests to adjourn McLeod’s VOSR proceedings pending
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resolution of her state charges. In those orders, the district court made clear that
“[t]he VOSR shall remain in abeyance pending further order of the [c]ourt.”
App’x at 6. On January 12, 2021, the district court directed the parties to “file a
joint status report updating the [c]ourt on [McLeod’s] state[-]court case and the
plan for resolving the pending VOSR, which has been held in abeyance.” Id.Three days later, McLeod’s counsel submitted a letter indicating that the parties
“ha[d] agreed, in principle, that Ms. McLeod” would admit to specifications two
and three in the VOSR report alleging that she had violated state law and that “the
government and probation department [would] recommend a sentence of time
served to be followed by one year of supervised release.” Id. at 40. But this
agreement had not yet been finalized, as McLeod’s counsel was still “waiting for
confirmation” that McLeod had, in fact, pleaded guilty to the underlying state
charges. Id. Nevertheless, since McLeod’s counsel was “[e]xpecting that
confirmation shortly,” he advised the district court that “the parties [were] ready
to schedule . . . an appearance.” Id. In the months that followed, neither
McLeod’s counsel nor the government made any further submissions indicating
that the “agree[ment] in principle” had been formalized, confirming that McLeod
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had “indeed pleaded guilty” in state court, or affirmatively requesting that the
court schedule a date for the VOSR hearing. Id.In July 2021, McLeod’s federal case was reassigned from Judge Mauskopf to
Judge Donnelly. A month later, Judge Donnelly ordered the parties to appear on
September 27, 2021 for a final hearing regarding the revocation of supervised
release. On that date, McLeod appeared with counsel, who apprised the court
that the parties had reached an agreement for McLeod to admit to specifications
two and three in the VOSR report. In response to a question by Judge Donnelly
asking about the status of the state-court cases, McLeod’s counsel stated that
McLeod had “pleaded guilty to the corresponding charges in state court.” Id. at
44. At no point during the hearing did McLeod’s counsel challenge the district
court’s jurisdiction or suggest in any way that the court had unreasonably delayed
McLeod’s hearing. Instead, the parties proceeded with the hearing, during which
McLeod admitted to specifications two and three in the VOSR report. The district
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court then sentenced McLeod to time served and one additional year of supervised
release. 2 This appeal followed. 3
We review de novo a challenge to a district court’s jurisdiction to revoke a
term of supervised release. See United States v. Spencer, 640 F.3d 513, 518 (2d Cir.
2011). A district court’s “power . . . to revoke a term of supervised release” and
impose a new sentence “extends beyond the expiration of the [original] term . . .
for any period reasonably necessary for the adjudication of” any VOSR
specifications that arose, and for which “a warrant or summons [was] issued,”
prior to the expiration of the original term. 18 U.S.C. § 3583(i). We have
explained that “reasonable necessity” is a “relatively elastic concept” that should
account for both “the legitimate interests of the defendant and the government.”
United States v. Ramos, 401 F.3d 111, 118 (2d Cir. 2005).
2 McLeod’s state charges were finally resolved in January 2022, when she was sentenced to a
three-to-six-year term of incarceration, with credit for time she had already served. On
September 29, 2022, McLeod was released from state custody.
3 While McLeod’s notice of appeal was untimely, see Fed. R. App. P. 4(b)(1)(A), the government
did not raise this issue and instead addressed only the merits of McLeod’s arguments on appeal.
As a result, we deem the government to have forfeited any objection to the timeliness of McLeod’s
notice of appeal. See United States v. Frias, 521 F.3d 229, 231 (2d Cir. 2008) (“We conclude that the
time limits of Rule 4(b) are not jurisdictional and are therefore capable of forfeiture by the
government.”).
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On appeal, McLeod does not dispute that a summons and warrant were
issued before her five-year term of supervised release expired, as required by 18
U.S.C. § 3583(i). Nor does she challenge the reasonableness of the
forty-one-month delay between August 2017 and January 15, 2021, during which
time the district court – often at the request of the parties – repeatedly held her
VOSR proceedings in abeyance pending resolution of the state charges. McLeod
argues only that the eight-month delay between her counsel’s January 15, 2021
letter and her September 27, 2021 hearing was not reasonably necessary, that the
district court therefore lost jurisdiction to adjudicate the violations, and that her
sentence, as a result, should be vacated. We disagree.
As a general matter, when the same conduct gives rise to both state criminal
charges and violations of federal supervised release, common sense dictates that
the state charges be resolved first. “Requiring a federal court to begin revocation
proceedings before the state court has determined whether the defendant is guilty
on the charges underlying revocation would thrust the federal court into a
determination of the defendant’s guilt under state law, an area fundamentally
reserved to the states.” Ramos, 401 F.3d at 117–18. Moreover, “judicial efficiency
is better served . . . by ascertaining the defendant’s guilt once in state court, rather
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than twice.” Id. at 118. Waiting for the state proceedings to conclude also inures
to the benefit of the supervisee, since any statements she may choose to make
during the federal revocation proceeding may be used against her in the parallel,
and often more consequential, state-court proceeding. See United States v. Jones,
299 F.3d 103, 111 (2d Cir. 2002) (noting that a supervisee’s testimony at her VOSR
hearing may “prejudice [her] state[-]court defense”).
Here, we cannot say that the eight-month delay between January 15, 2021
and September 27, 2021 was unreasonable. While McLeod argues that the
January 15 letter should have prompted the district court to schedule a VOSR
hearing, the letter was equivocal in several key respects. For starters, the letter
characterized the parties’ agreement as one reached only “in principle,” without
any representation as to when a finalized agreement might be expected. App’x
at 40. McLeod’s counsel also told the court that he was still “waiting for
confirmation that Ms. McLeod ha[d] indeed pleaded guilty . . . in state court,”
id. 40, but then failed to follow up with any such confirmation. Given that “state
adjudications are plainly relevant to the federal determination of whether or not a
[supervisee] has committed a crime in violation of state law,” Ramos, 401 F.3d at
117, it was not unreasonable for the district court to maintain the status quo –
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holding the VOSR in abeyance pending resolution of the state-court case – until it
received confirmation that McLeod had pleaded guilty to the charges that gave
rise to specifications two and three.
At no point between January 15 and September 27 did defense counsel ever
advise the district court that the contingencies of the January 15 letter – a final plea
agreement with the government and a state-court guilty plea – had been resolved.
It was not until the VOSR hearing on September 27, in response to Judge
Donnelly’s direct questions, that counsel confirmed that the parties had reached a
final agreement to resolve the specifications, and that McLeod had pleaded guilty
to the state charges underlying the violations to which she was willing to admit in
federal court. App’x at 44. And only after confirming those two facts did Judge
Donnelly proceed with the VOSR hearing and sentencing. Since confirmation of
those facts was “reasonably necessary” for the adjudication of the VOSR
specifications, we find that the district court had jurisdiction under section 3583(i)
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to revoke McLeod’s term of supervised release and impose a new sentence based
on her admitted violations. 18 U.S.C. § 3583(i).
We have considered McLeod’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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