14-223-cr

United States v. Wright

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

5th day of February, two thousand fifteen.

Present: PIERRE N. LEVAL,

ROSEMARY S. POOLER,

DENNY CHIN,

Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 14-223-cr

JACK WRIGHT,

Defendant-Appellant.

_____________________________________________________

Appearing for Appellant: Yuanchung Lee, Federal Defenders of New York, Inc., Appeals

Bureau, New York, N.Y.

Appearing for Appellee: Micah W.J. Smith, Assistant United States Attorney, (Karl

Metzner, Assistant United States Attorney, Preet Bharara, United

States Attorney for the Southern District of New York, on the

brief), New York, N.Y. 

Appeal from the United States District Court for the Southern District of New York

(Cote, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be and it hereby is AFFIRMED in part,

VACATED in part, and REMANDED for further proceedings consistent with this order.

Jack Wright appeals from the judgment of conviction and sentence entered on January

14, 2014 by the United States District Court for the Southern District of New York (Cote, J.) 

following his plea of guilty, in the absence of a plea agreement, to one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Wright challenges his withinGuidelines sentence of 70 months’ imprisonment followed by three years’ supervised release

with several special conditions of supervised release. We assume the parties’ familiarity with the

underlying facts, procedural history, and specification of issues for review.

We review sentencing decisions, including the imposition of conditions of supervised

release, for reasonableness, employing an abuse of discretion standard. Gall v. United States,

552 U.S. 38, 46 (2007); United States v. Peterson, 248 F.3d 79, 82 (2d Cir. 2001).

“Reasonableness review has both a procedural and a substantive component; it involves

‘consideration not only of the sentence itself, but also of the procedures employed in arriving at

the sentence.’” United States v. Juwa, 508 F.3d 694, 698 (2d Cir. 2007) (quoting United States

v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006)). A district court commits procedural error if,

among other things, “it fails to calculate the Guidelines range (unless omission of the calculation

is justified), . . . rests its sentence on a clearly erroneous finding of fact,” or “fails adequately to

explain its chosen sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (internal

citations omitted). “[T]he abuse-of-discretion standard of review applies to appellate review of

all sentencing decisions—whether inside or outside the Guidelines range.” Gall, 552 U.S. at 49.

The parties both agree that remand is warranted with respect to two of the special

conditions of supervised release. Specifically, the district court (1) prohibited Wright from

incurring any credit card debt, and (2) ordered Wright to participate in a substance abuse

program “[i]f deemed necessary by the probation department.”

Because the Government and the Defendant agree that remand is appropriate to allow the

district court to reconsider these special conditions, we remand for reconsideration in accordance

with the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). We

call the attention of the district court to United States v. Brown, 402 F.3d 133, 136–37 (2d Cir.

2005) (vacating credit restriction condition where it was “seemingly unrelated to [Defendant’s]

offense and circumstances”), and Peterson, 248 F.3d at 84–85 (vacating condition requiring

mental health counseling “as directed by the U.S. Probation Office” because this “constitute[d]

an impermissible delegation of judicial authority to the probation officer”). If the district court

decides to retain one or both conditions, it should explain its reasoning. If the court retains either

condition, Appellant may restore this appeal by notice to the Clerk of this Court within 30 days

of the district court’s order. If the district court vacates the conditions, that will terminate the

appeal.

In addition, Wright requests that we vacate his sentence in its entirety because he

contends the district court improperly relied on an undocketed seven-year old arrest listed in the

pre-sentence report (“PSR”) in rejecting his request to impose a below-Guidelines sentence. See 

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United States v. Prescott, 920 F.2d 139, 143 (2d Cir. 1990) (“[A] sentencing court must assure

itself that the information upon which it relies when fixing sentence is reliable and accurate.”). 

We reject Wright’s argument, finding no support for his contention that the district court relied

upon, or even considered, the arrest in fixing his sentence. The district court never alluded to the

undocketed arrest either in explaining its reasons for imposing the sentence it selected or in

rejecting Wright’s request for a below-Guidelines sentence. Rather, all discussion of this issue

was in explanation of the court’s rejection of Wright’s request that the district court strike the

arrest from his PSR, or in the alternative, amend the PSR to indicate that he denied involvement

in the alleged conduct. 

After a thorough and searching review of the record, we find no evidence to support

Wright’s characterization of the sentencing proceeding, and therefore conclude that there are no

“unusual circumstances” warranting reassignment on remand. See United States v. Robin, 553

F.2d 8, 9–10 (2d Cir. 1977). We have considered the remainder of Wright’s arguments and find

them to be without merit. Accordingly, we vacate the two challenged special conditions of

supervised release and remand in accordance with the procedures set forth in Jacobson, 15 F.3d

at 22. 

For the foregoing reasons, we AFFIRM in part, VACATE in part, and REMAND the

case for further proceedings as consistent with this order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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