19‐37‐cr

United States v. Franklin Nunez

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 14th day of February, two thousand twenty.

PRESENT: DENNIS JACOBS,

GUIDO CALABRESI,

    DENNY CHIN,

     Circuit Judges.

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UNITED STATES OF AMERICA,

     Appellee,

   ‐v‐              19‐37‐cr

          

FRANKLIN NUNEZ, aka FRANK,

    Defendant‐Appellant.

   

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FOR APPELLEE:         NI QIAN, Assistant United States

Attorney (Karl Metzner, Assistant

United States Attorney, on the brief), for

Geoffrey S. Berman, United States
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Attorney for the Southern District of

New York, New York, New York.

FOR DEFENDANT‐APPELLANT:    B. ALAN SEIDLER, New York, New

York.

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

New York (Sullivan, J.).

    UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED IN PART and

VACATED IN PART, and the case is REMANDED for further proceedings consistent

with this order.

    Defendant‐appellant Franklin Nunez appeals from a December 20, 2018

judgment of the district court revoking his term of supervised release and sentencing

him to 24 monthsʹ imprisonment and an additional term of supervised release of life.  

On appeal, Nunez makes two arguments: (1) his sentence was both procedurally and

substantively unreasonable and (2) he was deprived of his Sixth Amendment right to

effective assistance of counsel.  We assume the partiesʹ familiarity with the underlying

facts, the procedural history, and the issues presented for review.

    On August 9, 2013, Nunez pled guilty to conspiracy to distribute and

possess with intent to distribute more than five kilograms of cocaine, pursuant to

21 U.S.C. § 846.  Nunez was sentenced to 42 monthsʹ imprisonment on February 28,

2014, a downward departure from the Guidelines range of 70‐87 months.  He was given
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a three‐year term of supervised release, which included the standard condition that he

could not commit a federal, state, or local crime of any kind.  When reviewing this

condition at sentencing, the district court provided examples of crimes that would

result in a violation, specifically noting, inter alia, that Nunez was not to ʺ[d]riv[e] while

impaired.ʺ  D. Ct. Dkt. No. 17.  Nunez was released from prison on February 24, 2016,

and his supervision commenced.

    Less than six months later, Nunez was arrested for driving under the

influence (ʺDUIʺ) after the car he was driving collided with two vehicles.  At a

revocation hearing, the district court modified the terms of Nunezʹs supervised release

to include a curfew and temporary electronic monitoring, but it did not revoke his

supervised release.  Nunez later pled guilty to state charges that stemmed from his DUI

arrest, and he was ordered by New York State to install an ignition interlock device in

his car that required him to pass a breathalyzer test to turn on his vehicle.  Despite this

requirement, on November 19, 2017, Nunez got into another accident while DUI, and he

was charged with fleeing the scene.  At a hearing before the district court on February

22, 2018, Nunez admitted to the five specifications stemming from his two driving

incidents, and the district court again modified the terms of his supervised release, this

time to include a complete ban on driving.  The court adjourned sentencing, however,

for 90 days to allow for the resolution of Nunezʹs November 2017 state case.
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    Due to several additional adjournments, sentencing did not take place

until December 20, 2018.  By then, Nunez had tested positive for cocaine and marijuana,

and been arrested for a third time on October 14, 2018, for driving without a license and

driving without installation of an ignition interlock device.  His October arrest violated

the term of his supervised release that prohibited him from driving.  The district court

had ordered a hearing for November 5, 2018, but Nunez failed to appear.  After the

district court issued a bench warrant, Nunez appeared in court and admitted to the

three additional specifications stemming from his October 14, 2018 arrest.  In its

sentencing letter, the government recommended a sentence at the upper end of the

Guidelines range, which was four to 10 months, and a term of supervised release that

ʺwould be sufficient but not greater than necessary to serve the legitimate purposes of

sentencing.ʺ  D. Ct. Dkt. No. 39.  At sentencing, the government noted that it was

permissible for the court to impose a life term of supervised release, and it did not

object to an above‐Guidelines term of imprisonment.  Probation initially recommended

a 10‐month sentence with one year of supervised release.  When the district court noted

that it was inclined to impose a longer term of imprisonment, Probation concurred.

    At sentencing, the district court emphasized its disappointment with

Nunezʹs repeated disregard for the terms of his supervised release, noted the

importance of maintaining respect for the court, and expressed concern about Nunez

putting others in jeopardy when he drives.  Nunezʹs attorney explained that when
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Nunez is depressed he uses drugs and alcohol, and he gets behind the wheel without

considering the consequences.  He noted that Nunez ʺwill continue to have that

problem,ʺ which may not be ʺcurableʺ or resolvable.  Appʹx at 40.  In the end, as noted,

the district court sentenced Nunez to 24 monthsʹ imprisonment and a life term of

supervised release.

1.   Reasonableness of Sentence

  ʺThe standard of review on the appeal of a sentence for violation of

supervised release is now the same standard as for sentencing generally: whether the

sentence imposed is reasonable.ʺ  United States v. McNeil, 415 F.3d 273, 277 (2d Cir.

2005).  ʺWe review a sentence for procedural and substantive reasonableness under a

deferential abuse‐of‐discretion standard.ʺ  United States v. Thavaraja, 740 F.3d 253, 258

(2d Cir. 2014) (internal quotation marks omitted).  While we generally apply plain error

review where a defendant did not object to the sentence during the sentencing

proceeding, Unites States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (per curiam),

because ʺ[w]e have not decided whether plain error review applies to an unpreserved

challenge to the substantive reasonableness of a sentence,ʺ Thavaraja, 740 F.3d at 258 n.4,

here we apply the less deferential abuse‐of‐discretion standard.

    On appeal, Nunez challenges both the two‐year term of imprisonment

and life term of supervised release imposed by the district court.  We review each in

turn.
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a.   Two Yearsʹ Imprisonment

   If a defendant is on supervised release because he was convicted of a

Class A felony, the maximum term of imprisonment that may be imposed for violating

supervised release is five years.  18 U.S.C. § 3583(e)(3).  When setting the term of

imprisonment, the district court must consider several factors, among which are ʺthe

nature and circumstances of the offense and the history and characteristics of the

defendant,ʺ 18 U.S.C. § 3553(a)(1); the need ʺto afford adequate deterrence to criminal

conduct,ʺ 18 U.S.C. § 3553(a)(2)(B); and the need to ʺprotect the public from further

crimes of the defendant,ʺ 18 U.S.C. § 3553(a)(2)(C).

    We conclude that the district court did not abuse its discretion in setting

Nunezʹs terms of imprisonment.  Nunez was originally convicted of a Class A felony,

and so the district court could have imposed up to a five‐year prison sentence after

revoking Nunezʹs supervised release.  The court imposed an above‐Guidelines sentence

of two years, which was based, inter alia, on Nunezʹs repeated disregard for the terms of

his supervised release and dangerous behavior that threatened the safety of others.  

Though the term of imprisonment was substantially above the Guidelines

recommendation, it was reasonable in the circumstances here.

b. Life Term of Supervised Release

    If the court revokes a defendantʹs term of supervised release, it may

impose a new term of supervised release to follow the defendantʹs release from prison,
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provided that term does ʺnot exceed the term of supervised release authorized by

statute for the offense that resulted in the original term of supervised release.ʺ 

18 U.S.C. § 3583(h).  In the circumstances here, the maximum term of supervised release

following Nunezʹs drug trafficking conviction is life.  See United States v. Brooks, 889 F.3d

95, 99 (2d Cir. 2018) (per curiam) (noting that when there is no maximum term of

supervised release accompanying the underlying offense, district courts may impose a

life term of supervised release).   

    Imposing a life term of supervised release is ʺan extreme and unusual

remedyʺ that is, ʺto some degree, at odds with the rehabilitative purpose of supervised

release, as it presumes that the need for supervision will never end and that the

defendant is essentially incorrigible.ʺ  Id. at 101.  Thus, we have held, based on 18 U.S.C.

§§ 3553(c) and 3553(a)(6), that there must be ʺa significant justificationʺ to impose a life

term of supervised release.  Id. at 102.  In Brooks, we overturned such a term that was

imposed following a defendantʹs first revocation because it was based on non‐violent

violations.  Id. at 102‐03 (noting defendantʹs ʺviolations of supervised release center[ed]

on a drug habit that he [was] unable . . . to kickʺ).  There, the district court did not

distinguish why the particular defendant ‐‐ as compared to ʺmany other recidivist

defendants in his positionʺ ‐‐ deserved a life term of supervised release.  Id. at 103.  

Accordingly, we vacated and remanded to give the district court a chance to explain

why it imposed a life term.  Id.
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    We conclude that the district court here did not sufficiently explain why

Nunez deserved a life term of supervised release.  Like in Brooks, this was Nunezʹs first

revocation (although for multiple violations), and it was predicated on offenses related

to alcohol or substance abuse.  See id. at 103.  Indeed, the district court noted that

Nunezʹs ʺreal problemʺ is ʺsubstance abuse,ʺ Appʹx at 56, and Nunezʹs counsel admitted

Nunez may not be ʺcurable,ʺ Appʹx at 40.  The court did not, however, explain why

Nunez is so different from other recidivist defendants in his position that he needs a life

term of supervised release.  While we do not decide whether a life term of supervised

release is substantively unreasonable, it is unclear from the record why such a term was

imposed in this instance when a shorter term might have been sufficient to serve the

needs of justice.  For these reasons, we VACATE the term of supervised release and

REMAND for the district court to reconsider the term of supervised release and, in

particular, whether there is a ʺsignificant justificationʺ for a life term of supervised

release.

2.   Ineffective Assistance of Counsel

    There is a preference for hearing claims for ineffective assistance of

counsel at the trial level to allow the record to be fully developed.  Massaro v. United

States, 538 U.S. 500, 504‐05 (2003).  Thus, when a defendant makes an ineffective

assistance of counsel claim on direct appeal, we have three options: ʺ(1) decline to hear

the claim, permitting the appellant to raise the issue as part of a subsequent petition for
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writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district

court for necessary factfinding; or (3) decide the claim on the record before us.ʺ  United

States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003).  If the record is sufficient to allow us to

make a determination, the appellant must show his attorneyʹs representation was

objectively unreasonable and a reasonable probability that there would have been a

different result but‐for his attorneyʹs deficient representation.  Strickland v. Washington,

466 U.S. 668, 693‐94 (1984).

    Here, Nunez argues that his attorney was ineffective for two reasons.  

First, Nunez claims his attorney convinced him to admit to two specifications he ʺwas

not guilty ofʺ ‐‐ driving with a suspended license and driving without an interlock

device.  Appellantʹs Br. at 19.  Second, Nunez contends he did not understand the

personal trouble his attorney was facing during the time he represented Nunez.  The

record on appeal is insufficient for us to resolve these claims.  It is unclear how or why,

for example, Nunezʹs attorney convinced him to admit to the two specifications, and the

record does not indicate whether Nunez was ultimately convicted of these acts in state

court.  Accordingly, we decline to resolve this issue on direct appeal and leave it to

Nunez to raise these claims in a § 2255 motion.

* *   *
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We have considered Nunezʹs remaining arguments and conclude they are

without merit.  For the foregoing reasons, the judgment of the district court is

AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for

further proceedings consistent with this order.

FOR THE COURT:

Catherine OʹHagan Wolfe, Clerk