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United States v. Perkins

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 O RDER”). 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 Squ are, in the City of New York on the

29 th da y of Ju ne, two thousand twenty

.

Present: ROSEMARY S. POOLER, REENA RAGGI, RAYMOND J. LOHIER, JR.

, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA

,

Appell ee ,

v. 19

- 2401

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MELISSA L. PERKINS

,

Defendan t

- Appel lant

.

_____________________________________________________

F or Appellant: Courtenay McKeon, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, N.Y.

F or Appellee: Michael D. Gadarian , Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, N.Y.2 Appeal from the United States District Court for the Northern District of New York ( Suddaby

, C. J. ).

ON CONSIDERATION W HEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is VACATED AND

REMANDED

.

Defendant

- Appellant Melissa Perkins appeals from the judgment entered on July 23,

2019 , in the United States District Court for the Northern District of New York (Suddaby, C.J. )

, revoking Perkins ’ s probation upon her plea of guilty to seven different violations of the terms of her probation

, and sentencing her to ten months ’ imprisonment and one yea r of supervised

release. We assume the parties ’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Perkins challenges her sentence on procedural and substantive grounds, arguing that (1)

the district court ’ s reasons for imposing a within

- Guidelines sentence were based on clearly erroneous facts; (2) the district court failed to consider the sentencing factors identified in 18 U.S.C. § 3553(a); and (3) the sentence was substantively unreasonable in light of

, inter alia,

Perkins ’ s IQ of 75, financial difficulties, and her role as sole caregiver for her young son

. Perkins also argues that the district court violated her due process rights and Federal Rule of Criminal Procedure 32.1(b)(2) by relying on a confiden tial letter from the Probation Office (the “Probation Office Letter”) about Perkins ’ s case that was not shared with either party. 1 We review Perkins’s challenge to the substantive reasonableness of her sentence for abuse of discretion, see Holguin

Hernande z v. United States , 140 S. Ct. 762, 766 (2020), and review Perkins’s procedural objections

— which she raises for the first time on appeal

— for plain error, see United States v. Verkhoglyad , 516 F.3d 122, 127

- 28 (2d Cir. 2008).

As a preliminary matter, we conclude that Perkins ’s release from imprisonment does not moot her appeal. Perkins also challenges the supervised release portion of her sentence, and we cannot say based on our review of the record that “ the possibility of the district court’s imposing

a reduced term of supervised release on remand is

. . . remote and speculative.” United States v. Williams , 475 F.3d 468, 479 (2d Cir. 2007) (internal quotation marks omitted).

The Probation Office Letter, a confidential lette r sent to the district court, is not part of the record on appeal. In connection with Perkins’s challenge on appeal, the Government filed the Probation Office Letter on the appellate docket but did not separately move to supplement the

record. Even without such a motion, however, we have the authority to nostra sponte supplement the record on appeal with “anything material to either party.” Fed. R. App. P. 10(e)(2). We conclude that we should do so here to “clarif[y] our understanding of the process by which the

1 Though ordinarily an argument is waived if not made in an appellant’s opening brief, “we have discretion to excuse such an error if manifest injustice would otherwise result.” JP Morgan

Chase Bank v. Altos Hornos de Mex

. , S.A. de C.V. , 412 F.3d 418, 428 (2d Cir. 2005). While Perkins raises her argu ment as to the Probation Office Letter only in her reply brief, we understand that Perkins learned of this letter for the first time from the government’s brief. Accordingly, we exercise our discretion to consider this argument as not waived.3 District Judge reached the decision challenged on appeal.” Salinger v. Random House, Inc. , 818 F.2d 252, 253 (2d Cir. 1987).

Under the Federal Rules of Criminal Procedure, a defendant in probation revocation proceedings is entitled to the disclosure of the evidence against them and an opportunity to make

a statement to the court and present mitigating information

, among other pr ocedural rights. See Fed. R. Crim. P. 32.1(b)(2). The Probation Office Letter made factual representations to the

district court about the details of Perkins’s noncompliance with the terms of her probation

, including that she traveled outside the judicial district with her boyfriend without prior approval of the Probation Office or the district court because she wanted a vacation away from her

children

. The district court referenced this representation as one reason to discount Perkins’s mitigating evidence that she was the sole caretaker of her three

- year

- old son

. Yet the letter was not shared with Perkins or the government during the revocation proceeding. Because all the evidence against Perkins was not disclosed to her

, and because the district court may have relied

on undisclosed evidence to discount Perkins’s statement in mitigation at her probation revocation hearing, we conclude that the district court committed a procedural error meriting vacatur, and

we therefore remand for resentencing.

Because we reach this conclusion , we need not consider Perkins ’ s remaining arguments.
See , e.g. , United States v. Brown , 935 F.3d 43, 49 (2d Cir. 2019).

Accordingly, f or the reasons set out above

, we VACATE the judgment of the district

court and REMAN D for further proceedings consistent with this order

.

FOR THE COURT:

Catherine O ’ Hagan Wolfe, Clerk