United States v. Gurung

22-690-cr
United States of America v. Gurung
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,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 21st day of November, two thousand twenty-two.
4
5 PRESENT:
6 PIERRE N. LEVAL,
7 REENA RAGGI,
8 MYRNA PÉREZ,
9 Circuit Judges.
10 _____________________________________
11
12 United States of America,
13
14 Appellee,
15
16 v. No. 22-690-cr
17
18 Nijesh Gurung,
19
20 Defendant-Appellant.
21
22 _____________________________________
23
24 FOR DEFENDANT-APPELLANT: MARTIN J. VOGELBAUM, Federal Public Defender’s
25 Office, Western District of New York, Buffalo, NY.
26
27 FOR APPELLEE: TIFFANY H. LEE, Assistant United States Attorney,
28 United States Attorney’s Office for the Western
29 District of New York, Buffalo, NY.
30
1 Appeal from a judgment of the United States District Court for the Western District of New
2 York (Frank P. Geraci, Jr., J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Defendant Nijesh Gurung appeals a special condition of his supervised release imposed by
6 the district court. On October 14, 2021, Gurung pled guilty to manufacturing and dealing in
7 firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). On
8 March 28, 2022, the district court sentenced Gurung to, principally, a one-year-and-one-day term
9 of imprisonment and a two-year term of supervised release, with special conditions. On appeal,
10 Gurung challenges a special condition requiring that he participate in a program for substance
11 abuse, including substance abuse testing; that if testing indicates substance abuse, he undergo a
12 drug and alcohol evaluation and treatment; that if treatment is required, he abstain from the use of
13 alcohol for the full term of supervised release; and that he contribute to the costs of any services
14 (the “special condition”). 1 We affirm the special condition because we conclude that the district
15 court made a sufficient individualized assessment in determining to impose the special condition
16 and stated its reasoning on the record. We assume the parties’ familiarity with the underlying
17 facts, the procedural history of the case, and the issues on appeal, which we discuss only as
18 necessary to explain our decision to affirm.
1
Before reaching this issue, Gurung first argues that the appeal waiver in his plea agreement is unenforceable as to
his challenge to the special condition. The United States “concedes that the appeal waiver does not foreclose
challenges to that aspect of the sentence pertaining to the validity of the special condition of supervised release.”
Appellee Br. 8–9.
2
1 I. Legal Standards
2 Where, as here, a defendant with notice does not object to a special condition of supervised
3 release before the district court, we review the imposition of the special condition for plain error.
4 United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015). A court may impose special conditions
5 “so long as they are ‘reasonably related’ to: (A) ‘the nature and circumstances of the offense and
6 the history and characteristics of the defendant’; (B) ‘the need for the sentence imposed to afford
7 adequate deterrence to criminal conduct’; (C) the protection of the public; and (D) the rehabilitative
8 and medical care needs of the defendant.” United States v. Parisi, 821 F.3d 343, 348 (2d Cir. 2016)
9 (quoting United States v. Brown, 402 F.3d 133, 136–37 (2d Cir. 2005)); see also U.S. Sent’g
10 Guidelines Manual § 5D1.3(b); 18 U.S.C. § 3583(d). The special condition “must also involve
11 ‘no greater deprivation of liberty than is reasonably necessary for the purposes’ of sentencing, and
12 it must be ‘consistent with any pertinent policy statements’ in the [U.S. Sentencing] Guidelines.”
13 Brown, 402 F.3d at 137 (quoting 18 U.S.C. § 3583(d)). When determining whether to impose a
14 special condition of supervised release, the district court is required to make an “individualized
15 assessment” and to “state on the record the reason for imposing it.” United States v. Betts,
16 886 F.3d 198, 202 (2d Cir. 2018).
17 II. Analysis
18 The district court made an individualized assessment sufficient to support imposition of
19 the special condition. At Gurung’s sentencing, the district court adopted the United States
20 Probation Office’s Presentence Investigation Report (the “PSR”), which set forth Gurung’s
21 substance abuse history. The district court also reviewed the parties’ sentencing statements.
22 Gurung began using marijuana at age 16, smoking two blunts per day, throughout the day; he
3
1 began using alcohol at age 17, drinking one or two beers or glasses of wine, when he could access
2 it. He withdrew from school, which his sentencing statement attributes, in part, to his early
3 marijuana use. At age 18, Gurung manufactured and dealt firearms without a license. The
4 Probation Office noted Gurung’s substance abuse history, that he had never participated in any
5 substance abuse treatment, and recommended the special condition. After considering the
6 applicable sentencing factors, the district court stated on the record that it was imposing the special
7 condition based upon Gurung’s history of drug use. Accordingly, we find that the district court
8 made a sufficient individualized assessment when determining whether to impose the special
9 condition and stated its reasoning on the record. We also find that, based on that individualized
10 assessment, the special condition reasonably related to the sentencing factors. Finally, we find
11 that the special condition involved no greater deprivation of liberty than reasonably necessary for
12 the purposes of sentencing because the special condition imposes treatment only if continued
13 substance abuse is indicated by testing, and prohibits alcohol use only if treatment is imposed.
14
15 For the above-stated reasons, we AFFIRM the district court’s imposition of the special
16 condition.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk of Court
4