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United States v. Deavon Hooker

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 18 th 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,

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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 States2 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 months ʹ imprisonment and three years ʹ

supervised release. We assume the parties ʹ 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. ʺ Generally,

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 United3 States v. Green

, 618 F.3d 120, 122 (2d Cir. 2010) (citation omitted). This Court applies ʺ a

ʹ relaxed ʹ 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 ʺ may 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 ʺ the 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 ʺ the need for the sentence imposed

. . . to afford adequate deterrence to criminal

conduct; [and] to protect the public from further crimes of the defendant ʺ 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 ʺ make an individualized assessment when determining whether to4 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). ʺ Any

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). ʺ In the absence of such an

explanation, we may uphold the condition imposed only if the district court ʹ s 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 ʺ a pattern of nighttime

criminal behavior. ʺ Appellant ʹ s 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.

, Appellant ʹ s Br. at 3 (acknowledging

that the underlying crime occurred at 1:17 a.m.); App ʹ x at 128 (district court noting that

Hooker was ʺ found early in the morning as a convicted felon in possession of a very

dangerous loaded weapon ʺ ). 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 App ʹ x at 128

‐ 29 (district court, with reference to the goal of

adequate deterrence, emphasizing that Hooker ʹ s criminal history included two

robberies); App ʹ x at 129 (district court, with reference to public safety, expressing

concern over Hooker ʹ s prior affiliation with the Crips gang). Even if the district court5 might have more fully explained its reasoning for imposing the curfew condition, the

reasons are ʺ self

‐ evident ʺ from the record. Betts

, 886 F.3d at 202. Indeed, in submitting

a re

‐ entry plan to the district court that would ʺ support

. . . a law abiding lifestyle ʺ by

helping him obtain employment and abstain from substance use, Hooker proposed that

he ʺ abid[e] by curfew hours. ʺ Dist. Ct. Dkt., 15

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‐ 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 ʺ not knowingly associate with any member of the Crips

gang while on supervised release. ʺ App ʹ x at 130. Hooker ʹ s defense counsel did not

object. In contrast to the oral pronouncement, however, the written judgment states:

ʺ The defendant shall

. . . not associate with any gangs. ʺ App ʹ x at 134.

The government concedes that the district court ʹ s oral pronouncement at

sentencing that Hooker ʺ not knowingly associate with any member of the Crips gang, ʺ

App ʹ x at 130, is ʺ narrower in scope than that delineated in the written judgment. ʺ

Appellee ʹ s Br. at 18. ʺ Insofar as there is a variance between the written and oral

conditions, the District Court ʹ s 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) ( ʺ It is well settled, as a general proposition, that in the event of variation between6 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 removed ʺ (internal citation omitted)). At oral argument, the

government advised that it did not object to modification of the judgment to reflect the

district court ʹ s oral pronouncement. Accordingly, we now modify the judgment of the

district court to replace the association special condition with the special condition that

Hooker ʺ not knowingly associate with any member of the Crips gang while on

supervised release. ʺ App ʹ x 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

ʺ modify

. . . any judgment

. . . of a court lawfully brought before it for review ʺ ).

* * *

Accordingly, we AFFIRM the judgment of the district court as

MODIFIED herein.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk