1 17-3311 (L) United States v. Burden 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED 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 Fole y Square, in the City of New York, on the 3 rd day of January, two thousand nineteen.
Present: R OBERT D. S ACK , D EBRA A NN L IVINGSTON , D ENNY C HIN , Circuit Judges

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_____________________________________ United States of America, Appellee , v. 17-3311 (L) 17-3312 (Con) Terrence Boyd, Todd Summerville, Anthony Burden, AKA Tony, AKA Mackey, Willie Prezzie, AKA Dog, AKA Prez, Anthony Buchanan, AKA Jungle, Terrence Thompson, AKA Creed, Michael Sawyer, AKA Michael Moss, Terra Nivens, AKA Stink, AKA Stinkfinger, Frank Knight, AKA Groovy, AKA Ace, Dwight Maschek, AKA Shorty, Jermaine Ma rtin, AKA Psycho, Andre McClendon, AKA Popsicle, Mich ael Glenn, AKA Rockafella, Robert Jones, AKA Swinger, David L. Burden, AKA Quinten, AKA Sid, David M. Burden, AKA DMX, AKA X, Joseph Daniels, AKA Digital, Lavon Godfrey, Alvin White, AKA Uncle Lee, Andre Dawson, AKA Y up Yup, Jeffrey Fredericks, AKA JL, AKA Dahmer, Jahod Nash, AKA Hottie Jig, Mark Caldwell, AKA Lt. Sparks, Kevin Hamlette, AKA Fresh, Patrice St. Surin, AKA Patrick, AKA Watty Wat, Ernest2 Eugene Weldon, AKA Gene, AKA Mean Gene, AKA Mean One, Thomas Holman, AKA Uno, Adam Sanders, AKA AD, Kendal Mu llins, AKA K-Nice, Thomas Fagan, Joseph Darden, Jeffrey Lockhart, Lamont Brown, AKA L, St. Clair Burden, AKA Gowser, AKA GP, AKA Boo Boo, Cedric Burden, AKA Sid, Antonio Williams, AKA Lo Lo, Angel Cabrera, AKA Cheeks, Keith Lyons, AKA Papa Large, AKA Pops, Barney Burden, AKA Rock, AKA Buddy, AKA Buddy Rock, Demetrius Story, Leslie Wayne Carlos, AKA Cheetah, Defendants , Kelvin Burden, AKA Waffle, AKA Uncle, AKA Unc, Jermaine Buchanan, AKA Ski, Defendants-Appellants

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_____________________________________ For Defendants-Appellants: Elizabeth Latif, Law Offices of Elizabeth Latif PLLC, West Hartford, CT; Kenneth Caruso, White & Case LLP, New York, NY. For Appellee: Marc H. Silverman, Sandra S. Glover, Assistant U.S. Attorneys, for John H. Durham, U.S. Attorney for the District of Connectic ut, New Haven, CT. Appeals from judgments of the United States Di strict Court for the District of Connecticut (Hall, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED IN PART and VACATED AND REMANDED IN PART

. This consolidated appeal involves the senten cing of Defendants-Appellants Kelvin Burden (“Burden”) and Jermaine Buchanan (“Buchanan”). On October 2, 2017, Burden and Buchanan were separately sentenced to nearly identical five -year terms of supervised release, along with nine special conditions of supervised re lease. Burden’s appeal has been fully briefed before this Court. As for Buchanan’s appeal, his attorney Kenneth Caru so (“Caruso”) moves to be relieved as counsel3 pursuant to Anders v. California , 386 U.S. 738 (1967), asserting that there are no nonfrivolous issues that can be raised on appeal. The gov ernment moves for summary affirmance as to Buchanan’s term of supervised release and six of the nine special conditions. We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal. Burden principally argues that (1) the district court “faile d to consider” his liberty at sentencing, as required by 18 U.S.C. § 3583(d)(2), a nd (2) even if the court did consider his liberty, the special conditions imposed “involve[d] a great er deprivation of liberty than reasonably necessary to achieve sentencing goals.” Burden Br. 11–12. We are not pers uaded. “[W]e presume, in the absence of record eviden ce suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consid er the statutory factors.” United States v. Fernandez , 443 F.3d 19, 30 (2d Cir. 2006), abrogated on other grounds by Rita v. United States , 551 U.S. 338 (2007). While the district court did not recite the word “liber ty,” “no robotic incantations are required to prove the fact of consideration.” Id. (internal quotation marks omitted). Nothing in the record here suggests that the court failed to consider Burden’s liberty. Indeed, the reco rd shows that the court considered a “very long period of supervised release,” but chose in stead to impose a five-year term with relatively strict conditions, such as “G PS monitoring, a curfew, [and] confirmation of [Burden’s] financial transactions,” in order to gi ve Burden a chance to prove that he was “going to be a good citizen” in a “short period of time.” Burden App’x 154, 164. Furthermore, these conditions appropriately balanced Burden’s interests of libert y with the sentencing goals of protecting the public and helping Burden “trans ition to community life.” Burden App’x 161. We conclude that the court’ s sentencing of Burden was procedur ally and substantiv ely proper, with three exceptions to be outlined below.4 As to the government’s motion for summary affirmance of Buchanan’s sentence, we agree that—but for the same three excep tions—there are no nonfrivolous issu es to be raised on appeal and grant the motion in part. Because, however, we conclude that those three exceptions constitute nonfrivolous issues, we deny Caruso’s Anders motion. 1 Three of the special conditions imposed on bot h Burden and Buchanan require remand for resentencing. First, special condi tion 1 impermissibly delegates the district court’s authority to restrict Defendants-Appellants’ liberty to the Prob ation Office by requiring that they “participate in a program approved by the Probation Office for inpatient or outpatient substance abuse treatment and testing.” Burden App’x 171 (third amended judgment) (emphasis added); Buchanan D. Ct. Dkt. 2507 at 1 (second amended judgment) (emphasis added); see United States v. Matta , 777 F.3d 116, 123 (2d Cir. 2015) (vacating similarly- worded special condition). On remand, the district court should impose either outpat ient treatment or inpatient treatment. See Matta , 777 F.3d at 123. Second, special condition 5 imposes a 40- hour per week work or volunteer requirement that overlaps with the standard conditions of supe rvised release, which im pose a 30-hour per week work requirement. Compare, e.g. , Buchanan D. Ct. Dkt. 2507 at 2 (special condition 5) with id. at 3 (standard condition 7). A lthough the two conditions are not incons istent, the district court should clarify whether the special condition takes precedence. Third, there is a substantive discrepancy between the version of special condition 9 announced at each sentencing and the written vers ion contained in each judgment. At their sentencing hearings, the di strict court announced that Burden and Buchanan would each be subject

1 We note that no additional briefing is necessary on the present appeal. However, as we are denying the motion to be relieved, Caruso must continue to repr esent Buchanan in subsequent proceedings, subject to further order of this Court or the district court.5 to a curfew from 10 P.M. to 6 A.M., but the writt en version of this cond ition did not include the curfew hours; the written version also prohibits Burden and Buchanan from leaving their homes except for approved “employment, community se rvice, treatment, Probation Office meetings, programs, church, and medical appointments[.]” Compare Buchanan App’x at 125–26, and Burden App’x 166, with Buchanan D. Ct. Dkt. 2507 at 2, and Burden App’x 172. On remand, the district court should clarify which version of speci al condition 9 it intends to impose. If it chooses to impose the written version, it should permit Defe ndants-Appellants to challenge that version at a hearing. See United States v. Handakas , 329 F.3d 115, 119 (2d Cir. 2003) (remanding to permit defendant to challenge imposition of special cond ition imposed in written judgment but not orally announced at sentencing).
* * * For the above-stated reasons, (1) the judgment of the district court is AFFIRMED IN PART with respect to Burden’s te rm of supervised release and special conditions 2–4 and 6–8 of supervised release; (2) Caruso’s Anders motion is DENIED ; (3) the government’s motion for summary affirmance in Buchanan’s appeal is GRANTED IN PART as to Buchanan’s term of supervised release and speci al conditions 2–4 and 6–8 of supervised release and DENIED IN PART as to special conditions 1, 5, and 9 of supervised release; and (4) special conditions 1, 5, and 9 of supervised release in both cases are VACATED and both cases are REMANDED for resentencing on special conditions 1, 5, and 9 of supervised release.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk