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 ELECTRONIC 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 

1st 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. Clymer, 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 District 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 District 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 his term of supervised release. We assume the 

parties’ familiarity with the underlying facts, procedural history, and specification of issues for 

review. 

 Shwaryk was released from prison on September 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 imprisonment prior to appeal being heard renders 

appeal from sentence of imprisonment moot). Shwaryk also challenges his term of supervised 

release. As no objection was made at sentencing, 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 decided whether plain error review applies to 

unpreserved challenges to a sentence’s substantive 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 reasons 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 revocation 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 incantations; rather, the length and 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 his cell phone to probation when 

first asked, and that Shwaryk had a history of failing to comply with the terms of his supervised 

release. The district court’s limited statement sufficed. Moreover, to survive plain error review, 

Shwaryk needed to show that any lack of explanation “prejudicially affected 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 Shwaryk’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk