United States v. Deavon Hooker ( 2020 )

19‐751‐cr
United States v. Deavon Hooker
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 18th day of March, two thousand twenty.
PRESENT: REENA RAGGI,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
‐v‐ 19‐751‐cr
DEAVON HOOKER,
Defendant‐Appellant.
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FOR APPELLEE: ANDREY SPEKTOR, Assistant United States
Attorney (Susan Corkery, Margaret Gandy,
Assistant United States Attorneys, on the brief),
for Richard P. Donoghue, United States
Attorney for the Eastern District of New York,
Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: EUNICE C. LEE, Federal Defenders of New
York, Inc., Appeals Bureau, New York, New
York.
Appeal from the United States District Court for the Eastern District of
New York (Amon, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED as
MODIFIED below.
Defendant‐appellant Deavon Hooker appeals from a judgment entered
March 12, 2019, convicting him, after a guilty plea, of possessing a firearm after having
previously been convicted of a felony, in violation of 18 U.S.C. § 922(g). The district
court sentenced Hooker principally to 72 monthsʹ imprisonment and three yearsʹ
supervised release. We assume the partiesʹ familiarity with the underlying facts,
procedural history of the case, and the issues on appeal.
On appeal, Hooker argues that the district court erred in imposing a
curfew condition and an association condition as special conditions of his supervised
release. Hooker did not object to either condition before the district court. ʺGenerally,
we review conditions of supervised release for abuse of discretion. When the defendant
does not object to the conditions, however, we review only for plain error.ʺ United
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States v. Green, 618 F.3d 120, 122 (2d Cir. 2010) (citation omitted). This Court applies ʺa
ʹrelaxedʹ form of plain error review in those rare cases in which the defendant lacked
sufficient prior notice that a particular condition of supervised release might be
imposed.ʺ United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015).
DISCUSSION
I. Curfew Condition
We have held as a general matter that a district court ʺmay impose special
conditions of supervised release that are reasonably related to certain statutory factors
governing sentencing, involve no greater deprivation of liberty than is reasonably
necessary to implement the statutory purposes of sentencing, and are consistent with
pertinent Sentencing Commission policy statements.ʺ United States v. Myers, 426 F.3d
117, 123‐24 (2d Cir. 2005) (alteration and internal quotation marks omitted). The
statutory factors governing sentencing include ʺthe nature and circumstances of the
offense and the history and characteristics of the defendant,ʺ 18 U.S.C. § 3553(a)(1), as
well as ʺthe need for the sentence imposed . . . to afford adequate deterrence to criminal
conduct; [and] to protect the public from further crimes of the defendantʺ id. §
3553(a)(2).
Hooker argues that the district court committed procedural error in
imposing a curfew special condition. For a sentence to be procedurally reasonable, a
district court must ʺmake an individualized assessment when determining whether to
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impose a special condition of supervised release, and . . . state on the record the reason
for imposing it.ʺ United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). ʺAny
explanation provided by the District Court must be adequately supported by the
record.ʺ United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019). ʺIn the absence of such an
explanation, we may uphold the condition imposed only if the district courtʹs reasoning
is self‐evident in the record.ʺ Betts, 886 F.3d at 202 (internal quotation marks omitted).
Hooker argues that the imposition of the curfew condition was
procedurally unreasonable because the district court failed to explain specifically why it
imposed a curfew and because there is an absence of evidence of ʺa pattern of nighttime
criminal behavior.ʺ Appellantʹs Br. at 22. After reviewing the record, we conclude that
the district court adequately stated its reasons for the curfew condition, and that the
reasons were supported by the record. See, e.g., Appellantʹs Br. at 3 (acknowledging
that the underlying crime occurred at 1:17 a.m.); Appʹx at 128 (district court noting that
Hooker was ʺfound early in the morning as a convicted felon in possession of a very
dangerous loaded weaponʺ). Moreover, the curfew condition is sufficiently connected
to the goals of § 3553(a), including the need for adequate deterrence and the need to
protect the public. See Appʹx at 128‐29 (district court, with reference to the goal of
adequate deterrence, emphasizing that Hookerʹs criminal history included two
robberies); Appʹx at 129 (district court, with reference to public safety, expressing
concern over Hookerʹs prior affiliation with the Crips gang). Even if the district court
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might have more fully explained its reasoning for imposing the curfew condition, the
reasons are ʺself‐evidentʺ from the record. Betts, 886 F.3d at 202. Indeed, in submitting
a re‐entry plan to the district court that would ʺsupport . . . a law abiding lifestyleʺ by
helping him obtain employment and abstain from substance use, Hooker proposed that
he ʺabid[e] by curfew hours.ʺ Dist. Ct. Dkt., 15‐cr‐532, No. 56‐1. Accordingly, the
district court did not err, and certainly did not plainly err, in imposing a curfew special
condition.
II. Association Condition
With respect to the association condition, the district court explained at
sentencing that Hooker should ʺnot knowingly associate with any member of the Crips
gang while on supervised release.ʺ Appʹx at 130. Hookerʹs defense counsel did not
object. In contrast to the oral pronouncement, however, the written judgment states:
ʺThe defendant shall . . . not associate with any gangs.ʺ Appʹx at 134.
The government concedes that the district courtʹs oral pronouncement at
sentencing that Hooker ʺnot knowingly associate with any member of the Crips gang,ʺ
Appʹx at 130, is ʺnarrower in scope than that delineated in the written judgment.ʺ
Appelleeʹs Br. at 18. ʺInsofar as there is a variance between the written and oral
conditions, the District Courtʹs oral pronouncement controls.ʺ United States v. Young,
910 F.3d 665, 670 (2d Cir. 2018); see also United States v. Rosario, 386 F.3d 166, 168 (2d Cir.
2004) (ʺIt is well settled, as a general proposition, that in the event of variation between
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an oral pronouncement of sentence and a subsequent written judgment, the oral
pronouncement controls and any burdensome punishments or restrictions added in the
written judgment must be removedʺ (internal citation omitted)). At oral argument, the
government advised that it did not object to modification of the judgment to reflect the
district courtʹs oral pronouncement. Accordingly, we now modify the judgment of the
district court to replace the association special condition with the special condition that
Hooker ʺnot knowingly associate with any member of the Crips gang while on
supervised release.ʺ Appʹx at 130l; see United States v. McLeod, 251 F.3d 78, 84 (2d Cir.
2001) (modifying rather than remanding the judgment where addressing error would
not change the aggregate controlling sentence); 28 U.S.C. § 2106 (appellate courts may
ʺmodify . . . any judgment . . . of a court lawfully brought before it for reviewʺ).
* * *
Accordingly, we AFFIRM the judgment of the district court as
MODIFIED herein.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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