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
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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