1 21

- 151

- cr (L) United States of America v. Rakhmatov



### 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 D ATABASE (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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 1 7 t h da y of N o v e m b e r , two thousand twenty

- two

. 3 4 P resent : 5 D EBRA A NN L IVINGST ON , 6 Chief Judge
, 7 A MALYA L. K EARSE , 8 J OHN M. W ALKER , J R

. , 9 Circuit Judges

. 10

_____________________________________ 11 12 U NITED S TATES OF A MERICA , 13 14 Appellee
, 15 16

v. 21

- 151 ( L )
, 21

- 167 ( C o n ) 17 18 A ZIZJON R AKHMATOV , 19 20 Defendant

- Appell ant, 21 22 A BDURASUL H ASANOVICH J URABOEV , AKA 23 A BDULLOH I BN H ASAN , A KHROR S AIDAKHMETOV , 24 A BROR H ABIBOV , D ILKHAYOT K ASIMOV , A KMAL 25 Z AKIROV , 26 27 Defendants. 28

_____________________________________ 29 30 For Defendant

- Appellant: L AWRENCE M ARK S TERN , Esq., New York, New York

. 31 322 For Appell ee : D AVID K. K ESSLER , Assistant United States Attorney 33 (Susan Corkery, Douglas M. Pravda, J. Matthew 34 Haggans, Assistant United States Attorneys
, on the 35 brief ), for Jacquelyn M. Kasulis, Acting United States 36 Attorney for the Eastern District of New York, 37 Brookl yn, New York

. 38 39 Appeal in No. 21

- 151 from a judgment of the United States District Court for the Eastern 40

District of New York ( Kuntz , J .) , and appeal in No. 21

- 167 from an order denying a post

- judgment 41

motion

. 42

UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND 43

DECREED in No. 21

- 151 that the judgment of the district court is AFFIRMED in part
, and the 44

case is REMANDED for further proceedings consistent with this order. 45

In No. 21

- 151, Appellant Azizjon Rakhmatov appeals from a January 15, 2021 judgment 46

of the district court (Kuntz, J. ) , sentencing him to 150 months in priso n , and a lifetime term of 47
supervised release with special conditions
, for conspiring to provide mate rial support to a foreign 48
terrorist organization in violation of 18 U.S.C. § 2339B

. In No. 21

- 167, Rakhmatov appeals from 49
a January 25, 2021 order in which the district court denied his objections raised in a post

50
sentencing letter that we construe as a m otion to correct his sentence pursuant to Federal Rule of 51

Criminal Procedure 35 (a)

. On appeal, Rakhmatov argues that his sentence should be vacated and 52

the case should be remanded to a different judge

. A motions panel of this Court has already 53

dismissed as waived by his plea agreement Rakhmatov’s challenges to his prison sentence. In a 54
separate opinion that accompanies this order, w e address his challenge in No. 21

- 167 to the denial 55
of his Rule 35(a) motion. In this summary order
, we consider Rakhmatov’s challenge s in No. 56

21

- 151 to the lifetime term and special conditions of supervised release
, as well as whether the 57
case should be reassigned on remand

. We assume the parties’ familiarity with the underlying 583 facts, the procedural history of th e case, and the issues on appeal , which we reference here only as 1
necessary to explain our decision

. 2

I. Imposition of Supervised Release 3

Rakhmatov challenges the district court’s imposition of a lifetime term of supervised 4

release and objects to nine of the eleven special conditions of supervised release

. The 5
government does not object to vacating the lifetime term and special conditions related to 6

electronic device monitoring and location monitoring and remanding the case for further 7
development of the record

. We conclude that the lifetime term and seven of the special 8

conditions of supervised release should be vacated

. We remand with instruction s to vacate them 9

and to conduct further proceedings consistent with this order

. 10

A. Term of Supervised Release 11
We first consider Rakhmatov’s challenge to the lifetime term of supervised release. 12

Rakhmatov argues that the term should be vacated given the c ourt’s lack of explanation for the 13

term , the fact that his co

- defendants were not sentenced to supervised release , and the substantive 14

unreasonableness of the term for his “one

- time” offense involving a “small amount of money

. ” 15
Appellant’s Br. at 5 8

. W e conclude that vacatur is appropriate

. 16

“ We review sentences under a deferential abuse

- of

- discretion standard .” United States v. 17

Sampson , 898 F.3d 287, 311 (2d Cir. 2018) (quoting United States v. Young , 811 F.3d 592, 598 18
(2d Cir. 2016)) . Where, as with Rakhmatov’s challenge to the term of supervised release, a 19
defendant “did not object when the sentence was imposed, plain error review applies.” United 20

States v. Williams , 998 F.3d 538, 540 (2d Cir. 2021) (per curiam)

. In rev iewing the substantive 21

reasonableness of a sentence, this Court considers
, inter alia
, whether the sentence can “be located 22
within the range of permissible decisions.” Id. at 54 2 (quoting United States v. Cavera , 550 F.3d 234 180, 189 (2d Cir. 2008) (en banc) ). “In reviewing the procedural reasonableness of a sentence, 1
this Court considers whether the district court committed a significant procedural error, such as 2
failing to adequately explain the chosen sentence.” Id. at 540 (quoting United States v. Rosa , 957 3
F.3d 113, 117 (2d Cir. 2020) )

. 4

“A lifetime of supervised release is an extreme and unusual remedy
, ” and “cases in which 5
life terms of supervised release have been affirmed have typically involved child pornography or 6

violent crimes.” United States v. Brooks , 889 F.3d 95, 101 , 103 (2d Cir. 2018) (per curiam)

. 7

“ Accordingly
, the severity of a life sentence of supervised release justifies a closer look at the 8

district court’s decision to impose such a sentence .” Id. at 101. “ Ordinarily, a dist rict court is 9
under no obligation to provide elaborate reasons for the sentence it imposes,” but “[w]here a 10
sentence is unusually harsh, meaningful appellate review is frustrated where it is not possible to 11
understand why the sentence wa s imposed.” United States v. Jenkins , 854 F.3d 181, 194 (2d Cir. 12
2017) (vacating a 25

- year term of supervised release where “the district court offered no 13
explanation that might justify imposing what amounts to a lifetime of the most intense post

- release 14
supervision ”). 15

He re, t he district court adopted the p robation d epartment’s recommendation of lifetime 16
supervised release, the maximum term permitted by statute. See 18 U.S.C. § 3583(j) (authorizing 17
supervised release of “any term of years or life” for “any offense listed in section 2332b(g)(5)(B)”)

. 18

T he district court , however, provided no explanation for the lifetime term beyond stating that the 19
sentence generally is meant to “recognize[] the seriousness of the defendant’s offense” and “deter 20

this defendant from further criminal activity.” App. 422 ; s ee also Williams , 998 F.3d at 54 1

– 42 21
(noting that where retribution is the “ principal articulated basis ” for a sentence, a district court 22

should separately explain its rationale for a term of supervised release). Fu rthermore, Rakhmatov 235 had committed no prior offenses
, and two of his co

- defendants did not receive supervised release 1

sentences. See U.S.S.G. § 5D1.1 (Application Note 3) (advising that a district court “should give 2
particular consideration to the defenda nt’s criminal history” in imposing supervised release); 3

Brooks , 889 F.3d at 102 (noting that a district court must consider “the need to avoid unwarranted 4

sentenc[e] disparities among defendants with similar records” (quoting 18 U.S.C. § 3553(a)(6))). 5

Giv en the lack of explanation for the term imposed, meaningful appellate review is not possible. 6
To be clear, we express no view as to the appropriateness of a term of supervised release 7

in this case or as to the length of such a term. We simply remand and direct the district court to 8

v acate the term of supervised release and further develop the record with an explanation for its 9
reasoning for any newly imposed term

. 10

B. Special Conditions of Supervised Release 11
We next consider Rakhmatov’s objections to nine of the special conditions of supervised 12

release

. “‘A district court retains wide latitude in imposing conditions of supervised release,’ and 13
this Court generally reviews the imposition of such conditions ‘fo r abuse of discretion
, ’” bearing 14

in mind that errors of law, which we review de novo , necessarily meet this standard. United 15

States v. Birkedahl , 973 F.3d 49, 53 (2d Cir. 2020) (quoting United States v. MacMillen , 544 F.3d 16
71, 74 (2d Cir. 2008)). “ W hen t he defendant does not object to the conditions, however, we 17

review only for plain error.” United States v. Green , 618 F.3d 120, 122 (2d Cir. 2010) (per 18
curiam) . “To establish plain error, the defendant must establish (1) error (2) that is plain and (3) 19

a ffects substantial rights.” Williams , 998 F.3d at 540 (quoting United States v. Villafuerte , 502 20

F.3d 204, 20 9 (2d Cir. 2007)). “The sentencing context

. . . offers defendants a less rigorous plain 21
error review if [the] defendant lacked sufficient notice of the challenged conditions.” Green , 618 22

F.3d at 122 (citing United States v. Sofsky , 287 F.3d 122, 125 (2d Cir. 2002) )

. 236 The district court record is opaqu e both as to whether Rakhmatov had notice of the 1
proposed special conditions and whether he made objections sufficient to explain his arguments to 2
the district court. First, the probation department’s sentencing recommendation for a lifetime 3
term of super vised release and the relevant special conditions

— district court “Document 448

- 1 ”

— 4
was dated February 6, 2020, and is court

- labeled as having been filed under seal on that date; but 5

no Document 448

- 1 is listed (even as “Sealed”) on the court’s docket. Seco nd, we have not seen 6
in the record objections by Rakhmatov to any of the proposed conditions of supervised release 7
until his attorney, near the end of the January 14, 2021 sentencing hearing, stated, “I believe I have 8
to object to some of the special condi tions of supervised release.” App. 437. But to that 9

statement , the district court responded in part, “You objected to them. So your record is clear 10
that you object to them.” Id. Because our decision as to the challenged conditions would be the 11

same re gardless of the standard of review , we need not address which standard of review applies

. 12

T he district court adopted and imposed the p robation d epartment’s recommended special 13
conditions “to the extent they are not erroneous as a matter of law,” App. 430
, and did not provide 14

a rationale for the conditions

. “A district court is required to make an individualized assessment 15
when determining whether to impose a special condition of supervised release, and to state on the 16
record the reason for imposing it; the failure to do so is error. ” United States v. Betts , 886 F.3d 17

198, 202 (2d Cir. 2018)

. “In the absence of such an explanation, we may uphold the condition 18
imposed only if the district court’s reasoning is ‘self

- evident in the record.’” Id. (quoting United 19

States v. Balon , 384 F.3d 38, 41 n.1 (2d Cir. 2004)). “There must be a reasonable rel ationship 20
between the factors considered by the district court in the individualized assessment and the special 21
condition of release being challenged,” and the condition “must impose no greater restraint on 227 liberty than is reasonably necessary to accomplis h sentencing objectives.” United States v. 1
Haverkamp , 958 F.3d 145, 151 (2d Cir. 2020). 2
We affirm two of the challenged special conditions. W ith respect to the condition limiting 3

Rakhmatov’s association with criminal or terrorist enterprises
, 1 we con clude that the district 4

court’s reasoning for imposing the condition is “self

- evident,” Betts , 886 F.3d at 202, based on 5

Rakhmatov’s offense of providing material support to a foreign terrorist organization. 6

Rakhmatov asserts that the condition is “vague” and “overbroad,” Appellant’s Br. at 60, yet 7

“ [ c ] onditions need not be cast in letters six feet high, or describe every possible permutation, or 8
spell out every last, self

- evident detail,” United States v. Reeves , 591 F.3d 77, 81 (2d Cir. 2010) 9
(quotation marks, ellipses, and citation omitted). Indeed, we have upheld similar association

10
related conditions, assuming the “constitutionally required limitations on the breadth of 11
‘association,’ including that the prohibition only limits association with [ criminal enterprise 12

members ] known to the probationer, and excludes ‘incidental contacts.’” Green , 618 F.3d at 123 13
( quoting Arciniega v. Freeman , 404 U.S. 4 , 4 (1971) (per curiam)); see also United States v. 14

Johnson , 446 F.3d 272, 281 (2d Cir. 2006). 15

Wit h respect to the condition requiring that Rakhmatov submit to searches of his person 16

1 The association condition states : The defendant shall not associate in person, through mail, electronic mail, internet, social networking, or telephone with any individual with an affiliation to any terrorist organization, organized crime groups, gangs, or any criminal enterprise or terrorist enterprise; nor shall he frequent any establishment, or other locale where these g roups may meet

. The defendant shall not access any websites that affiliates with a radical extremist group, terrorist organization, organized crime groups, gangs, or any criminal enterprise or terrorist enterprise. See App. 432

.8 and property, 2 we similarly conclude that the district court’s reasoning for imposing the condition 1

is “self

- evident,” Betts , 886 F.3d at 202, based on Rakhmatov’s offens e. Moreover, the 2

condition’s limitation s o n searches to circumstances in which reasonable suspicion of a supervised 3

release violation exists and to a reasonable time and manner of search ensure that the condition 4
“impose[s] no greater restraint on liberty than is reasonably necessary,” Haverkamp , 958 F.3d at 5

151. Rakhmatov argues that the subcondition requiring him to notify other occupants that the 6
premises may be subject to searches is “ vague and overbroad.” Reply Br. at 44. However, the 7

subcondition is reasonably read to require notice only to others occupying his “house,” 8
“residence,” or “vehicle” and thus “put[s] an ordinary person on notice of the prohibited conduct,” 9

United States v. Carlineo , 998 F.3d 533, 536 (2d Cir. 2021). 10
As to the seven remaining challenged special conditions related to mental health 11
evaluation, medication, polygraph testing, electronic device monitoring, and location monitoring
, 12
we remand, directing that the district court vacate the se conditions given th e lack of 13

“individualized assessment” of the conditions and the lack of “self

- evident” basis for the 14

conditions in the record

. Betts , 886 F.3d at 202. Again, we express no view as to the 15

2 The search condition states: The defendant shall submit his person, property, house, residence, vehicle, papers, computers , as defined in 18 U.S.C. § 1030(e)(1), other electronic communications or data storage devices or media, or office, to a search cond ucted by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. The defendant shall warn any other occupants that the premises may be subject to searches pursuant to this condition. An officer may con duct a search pursuant to this condition only when reasonable suspicion exists that the defendant has violated a condition of his supervision and that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonabl e time and in a reasonable manner. See App. 4 34

– 435

.9 appropriateness of these conditions. 3 We simply remand to the dis trict court to consider whether 1

the se conditions are warranted and
, if so, to explain its rationale for imposing each of them. 2

II. Reassignment of the Case on Remand 3
Finally, Rakhmatov asserts that the case should be assigned to a different judge on rem and 4

based on, inter alia , the district court’s “acceptance, without evidence, of the allegations of 5

[Rakhmatov’s] extremist ideology,” “superficial recitation” of the sentencing factors, and 6
imposition of the maximum sentence that bars appeal

. Appellant’s Br. at 62. We disagree. 7
“Reassignment of a case ‘is an extreme remedy, rarely imposed . . . but occasionally warranted, 8
even in the absence of bias, to avoid an appearance of partiality.’” Ketcham v. City of Mount 9

Vernon , 992 F.3d 144, 152 (2d Cir. 2021) (quoting United States v. City of New York , 717 F.3d 10
72, 99 (2d Cir. 2013)). We assess three factors to determine whether reassignment is warranted: 11
(1) whether the original judge would reasonably be expected upon reman d to have 12 substantial difficulty in putting out of his or her mind previously

- expressed views 13 or findings determined to be erroneous or based on evidence that must be rejected, 14 (2) whether reassignment is advisable to preserve the appearance of justice, an d (3) 15 whether reassignment would entail waste and duplication out of proportion to any 16 gain in preserving the appearance of fairness. 17 18 Id. (quoting Gonzalez v. Hasty , 802 F.3d 212, 225 (2d Cir. 2015)). Here, we discern no reason 19

that the district court wo uld have “substantial difficulty” putting aside its original views or that 20
reassignment is warranted for “the appearance of justice

. ” T herefore , we deny Rakh ma tov’s 21

request. 22

* * * 23

24

3 Because we direct vacatur, requiring the district court to develop the record in the event that the conditions are reimposed, we need not now consider Rakhmatov’s contention that certain conditions imp roperly delegate authority to the p robation d epartment.10 We have considered Rakhmatov’s remaining arguments and find them to be without merit. 1

For the foregoing reasons and those in the concurrently filed opinion , we DISMISS as to the 2
district court’s denial of Rakhmatov’s Rule 35(a) motion, AFFIRM as to the imposition of the 3

association an d search special conditions of supervised release, and REMAND the case with 4

instructions to vacate the lifetime term of supervised release and the special conditions related to 5
mental health evaluation, medication, polygraph testing, electronic device monitoring, and 6
location monitoring and to conduct further proceedings consistent with this order. As to the 7
lifetime term of supervised release and the special conditions for which we direct vacatur , the 8
district court may invite the parties to fu rther develop the record and may reimpose or modify 9

them . Upon such decision by the district court, either party may restore the matter to the active 10
docket of this Court by letter without filing a new notice of appeal. If either party seeks further 11

acti on from this Court, the matter will be referred to this panel. See United States v. Jacobson
, 12
15 F.3d 19, 22 (2d Cir. 1994) (recognizing that appellate courts may seek “supplementation of a 13
record without a formal remand or the need for a new notice of ap peal before the appellate panel 14
acts on the supplemental record”). 15

16

FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18