16-4239 United States v. Shwaryk 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 ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). 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
1 st day of December, two thousand seventeen.

Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, PETER W. HALL, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 16-4239

KEVIN SHWARYK,

Defendant-Appellant

.

_____________________________________________________

Appearing for Appellant: Melissa A. Tuohey, Assistant Federal Public Defender (Lisa Peebles, Federal Public Defender, on the brief ), Syracuse, N.Y.

Appearing for Appellee: Steven D. Cl ymer, Assistant United States Attorney, for Grant C. Jaquith, Acting United States Attorney for the Northern District of New York, Syracuse, N.Y.

Appeal from the United States Di strict Court for the Northern District of New York (Mordue, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

.2 Kevin Shwaryk appeals from the nine-month term of imprisonment and eight-year term of supervised release imposed by the United States District Court for the Northern District of New York (Mordue, J. ) following revocation of hi s term of supervised release. We assume the parties’ familiarity with the underlying facts, pr ocedural history, and specification of issues for
review.

Shwaryk was released from prison on Sept ember 7, 2017, rendering arguments regarding the length of his term of imprisonment moot. See United States v. Probber , 170 F.3d 345, 347 (2d Cir. 1999) (holding completion of term of im prisonment prior to app eal being heard renders appeal from sentence of imprisonment moot). Sh waryk also challenges his term of supervised release. As no objection was made at senten cing, the procedural unreasonableness of his sentence of supervised release is reviewed for plain error. See United States v. Villafuerte , 502 F.3d 204, 211 (2d Cir. 2007). We have not decide d whether plain error review applies to unpreserved challenges to a sentence’s substan tive reasonableness and, for purposes of this appeal, we assume that it does not and that the abuse of discretion standard applies.

Shwaryk argues his sentence was procedurally unreasonable because the district court did not state, in open court, the reas ons for its sentence. He argues that the district court only spoke about his failure to produce his cell phone in June 2016, but noted that Shwaryk produced the phone for inspection after the district court ordered him to comply with probation office directives. He also argues that his sentence is substantively unreasonable, because the court overly relied on the failure to turn over his cell phone.

When sentencing after the revoc ation of supervised release, a district court's compliance with the sentencing explanation requirements of 18 U.S.C. § 3553(c) “can be minimal.” United
States v. Cassesse , 685 F.3d 186, 192 (2d Cir. 2012), as amended (July 25, 2012). “Section 3553(c) requires no specific formulas or incantati ons; rather, the length a nd detail required of a district court's explanation varies according to the circumstances.” Id . Here, the district court
stated that it could not overlook Shwaryk’s refusal to turn over hi s cell phone to probation when first asked, and that Shwaryk had a history of fail ing to comply with the terms of his supervised
release. The district court’s limited statement su fficed. Moreover, to surv ive plain error review, Shwaryk needed to show that any lack of expl anation “prejudicially a ffected his substantial rights,” United States v. Cook , 722 F.3d 477, 481 (2d Cir. 2013). He made no such showing.

We have considered the remainder of Shwa ryk’s arguments and find them to be without merit. Accordingly, the order of the district court here by is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk