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18-3732-cr

United States v. Jackson

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 TO 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 9th day of September, two thousand twenty.

PRESENT:

ROBERT A. KATZMANN,

GERARD E. LYNCH,

Circuit Judges,

LEWIS A. KAPLAN,

*

District Judge.

UNITED STATES OF AMERICA,

Appellee,

v. No. 18-3732-cr

PERNELL JACKSON,

Defendant-Appellant.

For Defendant-Appellant: JAY S. OVSIOVITCH, Federal Public 

Defender’s Office, Western District of New 

York, Rochester, NY.

* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New 

York, sitting by designation.
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For Appellee: MONICA J. RICHARDS, Assistant United States 

Attorney, for James P. Kennedy, Jr., United 

States Attorney for the Western District of 

New York, Buffalo, NY.

Appeal from a judgment of the United States District Court for the Western District of New 

York (Geraci, Jr., J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Defendant-appellant Pernell Jackson appeals from a judgment of the United States District 

Court for the Western District of New York, convicting him, after a plea of guilty, of one count of 

knowingly and willfully making and using false writings and documents containing materially 

false, fictitious, and fraudulent statements and representations, in violation of 18 U.S.C. 

§ 1001(a)(3), and sentencing him to 12 months’ imprisonment and two years of supervised release. 

Jackson here challenges one of the standard conditions of supervision, which, as revised by the 

standing order issued by the United States District Court for the Western District of New York on 

March 22, 2019, states: 

If the court determines in consultation with your probation officer that, based on 

your criminal record, personal history and characteristics, and the nature and 

circumstances of your offense, you pose a risk of committing further crimes against

another person (including an organization), the probation officer may require you 

to notify the person about the risk and you must comply with that instruction. The 

probation officer may contact the person and confirm that you have notified the 

person about the risk.

Addendum to Appellant’s Br. 21. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal.

The only issue on appeal is whether the above risk notification condition, as amended by 

the standing order, gives the probation officer too much discretion in determining who should be 

notified about a risk Jackson may pose. We recently held that a similar challenge to the same 
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condition was unripe. See United States v. Traficante, No. 18-1962, 2020 WL 4032220, at *5–6

(2d Cir. July 17, 2020). There, we noted that “while it could be argued that the standing order 

contemplates vesting the probation officer with a degree of discretion that is inconsistent with our 

holding in [United States v. Boles, 914 F.3d 95, 111–12 (2d Cir. 2019)], such a challenge would . . .

be unripe, since the ostensibly improper delegation may never actually occur.” Id. at *5. The same 

reasoning forecloses Jackson’s challenge. Specifically, “the supposed delegation is conditioned on 

the district court finding, during [Jackson’s] term of supervised release, that he poses a risk of 

committing further crimes against another person,” which “might not occur.” Id. And “even if it 

does, the district court still might directly order [Jackson] to notify the at-risk individual, or 

alternatively, order the probation officer to require [Jackson] to so notify the potential victims.”

Id. “In either scenario, the probation officer would lack discretion over whether to impose a 

notification obligation on [Jackson].” Id.

Accordingly, we decline to reach Jackson’s challenge at this time. Should the contingencies 

described above in fact materialize, Jackson may challenge the degree of discretion afforded to the 

probation officer in the district court at the appropriate time. See id.

For the foregoing reason, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk