18

- 3479

- cr United States v. Rasheed

1 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 201 9 4 5 ( Argued : May 7 , 20 20 Decided: November 2 5 , 2020 ) 6 7 Docket No

. 18

- 3479

- cr 8 9

_____________________________________ 10 11 UNITED STATES OF AMERICA , 12 13 Appellee , 14 15

v. 16 17 ABDUL RASHEED , 18 19 Defendant

- Appellant

. 20

_____________________________________ 21 Before: 22 23 LEVAL, LOHIER , and PARK , Circuit Judges

. 24 25 Abdul Rasheed appeals from a judgment of conviction entered after a jury 26 trial in the United States District Court for the Western District of New York 27 (Siragusa, J. ) for one count of escape, 18 U.S.C. §§ 751(a), 4082(a). On appeal, 28 Rasheed argues that venue was improper in the Western District of New York, 29 that certain statements t o the jury deprived him of a fair trial, and that the 30 District Court erred in calculating his advisory sentencing range and in imposing 31 three conditions of supervised release , including a standard risk

- notification 32 condition that has since been modified di strict

- wide in a standing order of the 33 Western District of New York to correct a legal infirmity

. For the reasons that 34 follow , w e AFFIRM the judgment as modified by the Western District of New 35 York’s standing order

. 362 1 M ARTIN J. V OGELBAUM , Assistant Federal Public 2 Defender, Federal Public Defender’s Office, Western 3 District of New York, Buffalo, N

. Y

. , for Defendant

4 Appellant Abdul Rash e ed

. 5 6 K AT HER INE A. G REGORY , Assistant United States 7 Attorney, for James P. Kennedy, Jr., United States 8 Attorney for the Western District of New York, Buffalo, 9 N.Y. , for Appellee United States of America

. 10 11 LOHIER, Circuit Judge : 12

Abdul Rasheed challenges a November 13, 201 8 judgment of the United 13

States District Court for the Western District of New York (Siragusa, J. ) 14
convicting him after a jury trial of one count of escape , in violation of 18 U.S.C. 15
§§ 751(a) and 4082(a) , and sentencing him to the statutor y maximum term of 16
imprisonment of sixty months , as well as a three

- year term of supervised release. 17
On appeal, Rasheed argues that his conviction should be vacated because venue 18
was improper in the Western District of New York and because certain 19

statements that the District Judge made to the jury violated his right to a fair trial

. 20

He also seeks remand for resentencing based on asserted errors in the calculation 21
of his advisory sentencing range under the United States Sentencing Guidelin es 22
(U.S.S.G.) and in the imposition of three conditions of supervised release , 23
including a standard risk

- notification condition that has since been modified in a 243 district

- wide standard order of the Western District of New York to correct a 1
legal infirmity

. For the reasons that follow, we affirm the judgment as modified 2
by the Western District of New York’s standing order

. 3

BACKGROUND 4

In March 2015 the District Court sentenced Rasheed to a twelve

- month 5
term of imprisonment for violating conditions of a federal term of supervised 6
release. He was initially incarcerated at the United States Penitentiary Lee (USP 7
Lee) in Jonesville, Virginia. 8
In February 2016 Rasheed became elig ible to serve the remainder of his 9
custodial sentence at a residential reentry center (RRC), an institutional facility 10
contracted by the United States Bureau of Prisons (BOP) to provide inmates 11
nearing the end of their custodial sentences with helpful prog rams and services 12
to facilitate reentry into the community. While assigned to an RRC, inmates 13
remain in BOP custody and are authorized to leave the facility only with prior 14
approval

. Rasheed applied and was approved to serve the remainder of his 15
sentence at Volunteers of America (VOA), an RRC in Rochester, New York , 16

which is located in the Western District of New York. H e was granted an 17
unaccompanied furlough to travel there from USP Lee

. 184 Rasheed’s furlou gh agreement outlined the conditions of his furlough and 1
his approved travel schedule

. H e was scheduled to depart USP Lee at 7:00 a.m. 2

on March 1, 2016 with a town driver, who would drive him to a bus station in 3
Kingsport , Tennessee ; f rom there, Rasheed w as scheduled to travel by bu s 4
departing Kingsport at 9:10 a.m. and arriving in Rochester by 11:50 a.m. the 5
following day , with specified layovers and transfers en route ; and h e was 6
required to report to VOA, which was walking distance from the Rochester bus 7
station, no later than 12:00 p.m. on March 2, 2016. 8

Rasheed signed a statement on his furlough application indicating that he 9

understood that the ”furlough only extend [ed] the limits of [his] confinement 10
and that [he would] remain in the custody of the Attorney General of the United 11

States” at all times

. Ex. App’x at 3

. He further agreed that any “fail[ure] to 12

remain within the extended limits of this confinement . . . shall be deemed as 13
escape from custody of the Attorney General,” punishable under 18 U.S.C. § 751 14
and 18 U.S.C. § 4082. Id. ; see id. at 4. 15

On March 1, 2016 , Rasheed left USP Lee, equipped with his itinerary, bus 16

tickets, and a debit c ard worth about $50 , but he failed to report to VOA in 17
Rochester. By April 4, 201 6 , a task force coordinated by the United States 185 Marshal Services (USMS) still had not located him , and a warrant for his arrest 1

was issued. 2

In late October 2016, nearly eight months after Rasheed failed to report to 3

VOA, USMS discovered that Rasheed was in jail in Allegheny County, 4
Pennsylvania, having been arrested in connection with a fatal shooting in 5
Pittsburgh. Rasheed was later charged in Pennsylvania state court with multiple 6

felonies ; he eventually pleaded guilty to, among other charges, third

- degree 7
murder and aggravated assault

. 8

In November 2016 a grand jury in the Western District of New York 9

indicted Rasheed on one count of escape, in violation of 18 U.S.C. §§ 751(a) and 10
4082(a). Rasheed elected to proceed to trial

. During the trial he and the 11

Government stipulat ed that in 2015 Rasheed had been convicted of federal 12

offenses in the Western District of New York and sentenced to a term of 13
imprisonment and supervised release . The parties further stipulated that, as a 14

res ult of his sentence, Rasheed “was committed to the custody of the United 15

States Bureau of Prisons , where he was lawfully confined in an institution and 16
facility at the direction of the Attorney General.” Ex. App’x at 1

. 176 At the close of the Government’s case , Rasheed moved for a judgment of 1
acquittal . He argu ed that the G overnment had failed to prov e venue because 2

there was no evidence that Rasheed “ was ever in the Western District of New 3

York” and, therefore, “no crime [ was ] committed [ t ] here.” Joint App’x at 433. 4

The G overnment replied that venue was proper because Rasheed was charged 5
with “fail[ing] to remain within the extended limits of his confinemen t .” Id. at 6

434. A nd after March 2, 2016, the Government contended, the VOA RRC, which 7

is located in the Western District of New York, comprised “ the limits of his 8

confinemen t.” Id

. The District Court considered the issue of venue in the case of 9
an escape from an unaccompanied transfer to be an “open questio n ” in this 10

Circuit , but it agreed with the Government and denied Rasheed’s motion

. Id. at 11

435

. 12

Before the jury began to deliberate , t he District Court denied Rasheed’s 13
nunc pro tunc motion for a mistrial based on two statements that the District 14

Court had made during jury selection , the first alerting prospective jurors that 15

Rasheed w as currently in custody , and the second direct ing them not to consider 16
that fact as bearing on Rasheed’s guilt or innocence. 1 In denying the motion at 17

1 The two statements were as follows:7 such a late stage of the trial , the District Court provided the following curative 1
jury instruction, which both parties found acceptable : “ [T]he fact that Mr. 2
Rasheed is in custody has no bearing on your determination of his guilt or 3
nonguilt of the charge for which he stands accused and must not be considered 4
by you in any way in reaching your verdict.” Id. at 499. T he jury quickly 5
returned a g uilty verdict on the escape charge

. 6

I told you, for example

— it’s no big secret

— Mr. Rasheed was in custody. He had committed a crime, a felony. That’s why he was in prison and I’m also telling you that you can’t consider that fact, in and of itself, as a basis to find him guilty, you can’t say, ah, I’ve heard enough. I’ll ask [if] you can

. . . do that. Joint App’x at 132. And: Why is the Marshal here because if you haven’t figured it out by now, believe me you would figure it out shortly that Mr. Rasheed is in custody. All right. I’m telling you that. And I’m also telling you this: The fact that he’s in custody has nothing to do with his guilt or nonguilt. Do you all understand that? (Jurors saying ye s.) You know, I’m a firm believer in raising these issues because I don’t want to leave anything to speculation, you can’t go back there in the jury room and say oh, he’s in custody, he must have done something. No. That has no bearing on his guilt or

no nguilt in this case. And

. . . here’s what I’m trying to drive home. If you

. . . make up your mind and say, oh, the guy’s been arrested he must have done something, he’s in custody he must have done something, then we’re wasting our time here. Make sen se? Then we’re truly wasting our time because the way our system works is you, if you’re on this jury, have to make that determination based on what comes out in court as to whether the government has proven his guilt beyond a reasonable doubt. Can you

a ll do that? (Jurors nodding yes.)
Id. at 228

– 29. Defense counsel objected outside the presence of the jury.8 At sentencing, the Government advocated for a statutory maximum 1

sentence of sixty months ’ imprisonment , to be served consecutively to all other 2

state and federal sentences previously imposed on Rasheed

. Defense counsel 3
urged the District Court to impos e a sentence concurrent to Rasheed’s 4
undischarged state term of imprisonmen t , but counsel did not otherwise 5
challenge t he calculation of Rasheed’s Guidelines range of thirty to thirty

- seven 6

months

. T he District Court ultimately imposed a n above

- Guidelines sentence of 7
sixty months’ imprisonment , to run consecutively to Rasheed’s Pennsylvania 8

state sentence, and a three

- year term of supervised release. 9

A s relevant to this appeal, t he judgment also included two special 10
conditions of supervised release , each of which requir ed Rasheed to participate 11
in treatment programs and “to contribute to the cost of services rendered” by 12

those program s. Sp. App’x at 5

. A third, standard condition of supervised 13

release wa rned Rasheed that “[i]f the probation officer determines that you pose 14

a ris k to another person (including an organization), the probation officer may 15
require you to notify the person about the risk.” Id. at 4

. 169 DISCUSSION 1
On appeal, Rasheed challenges his conviction based on improper venue 2
and on due process grounds. He also challenges his sentence based on asserted 3
errors in the calculation of the advisory Guidelines range and the District Court’s 4
imposition of the cost

- c ontribution and risk

- notification conditions of supervised 5

release. We address each of these challenges in turn. 6

I 7

‘‘ [ V ] enue in federal criminal cases is controlled by a complicated interplay 8
of constitutional provisions, statutes, and rules.’’ United States v. Rowe , 414 F.3d 9
271, 277 (2d Cir. 2005) (quotation marks omitted ). A criminal defendant must be 10

tried in the district where the crime was committed. U.S. Const. amend. VI; Fed. 11

R. Crim. P. 18. The government bears the burden to prove by a preponderance of 12
the evidence that venue is proper in the district of prosecution. United States v. 13
Kirk Tang Yuk , 885 F.3d 57, 71 (2d Cir. 2018). Because the relevant facts in this 14
case are not in dispute, Rasheed’s venue challenge presents a question of law, 15

which we review de novo

. United States v. Tzolov , 642 F.3d 314, 318 (2d Cir. 16
2011). 1710 As an initial matter , we consider whether the crime of conviction itself tells 1

us how to determine the situs of the crime. Re call that Rasheed was charged 2
with violating 18 U.S.C. §§ 751(a) and 4082(a). Section 751(a) criminalizes an 3
“escape[] or attempt[] to escape from th e custody of the Attorney General or his 4
authorized representative, or from any institution or facility in which he is 5
confined by direction of the Attorney General.” Section 4082(a), in turn, provides 6
that “[t]he willful failure of a prisoner to remain w ithin the extended limits of his 7
confinement, or to return within the time prescribed to an institution or facility 8
designated by the Attorney General, shall be deemed an escape from the custody 9
of the Attorney General” within the meaning of section 751(a)

. 10

B ecause the statute defining Rasheed’s offense “does not specify how to 11

determine where the crime was committed , ” we look to “the nature of the crime 12
alleged and the location of the act or acts constituting it.” United States v. Lange , 13

834 F.3d 58, 68 (2d Cir. 2016) (quotation marks omitted)

. In doing so, we keep in 14

mind that “ [v] enue is proper only where the acts cons tituting the offense

— the 15

crime’s essential conduct elements

— took place.” Tzolov , 642 F.3d at 318 16
(quotation marks omitted). 1711 Of course, w here the nature of the offense and the essential conduct 1
elements implicate multiple location s , venue may lie in more than one district. 2

See Lange , 834 F.3d at 68

– 69. Thus “ a n offense ‘ begun in one district and 3
complete d in another, or committed in more than one district, may be

. . . 4
prosecuted in any district in which such offense was begun, continued, or 5
complet ed. ’ ” United States v. Holcombe , 883 F.3d 12, 15 (2d Cir. 2018) (quoting 6
18 U.S.C. § 3237(a)). 7

I n this case , where Rasheed was accused in essence of failing to appear at a 8
designated facility, w e start with “the general rule that where the crime charged 9
is a failure to do a legally required act, the place fixed for its performance fixes 10

the situs of the crime.” Johnston v. United States , 351 U.S. 215, 220 (1956). 11
Although we have n ever previous ly applied this principle to a prosecution for an 12

escape committed during an unaccompanied transfer, several of our sister 13

circuits fac ed with similar factual circumstances have concluded that venue is 14
proper in the district of the receiving facility to wh ich a defendant was obligated 15
(and failed) to report. See United States v. Overaker , 766 F.2d 1326, 1327 (9th Cir. 16
1985) (where a defendant escaped during an unescorted transfer from a federal 17
prison in Minnesota to a federal prison camp in Arizona, venue was proper in 1812 the District of Arizona); United States v. Wray , 608 F.2d 722, 723 , 725 (8th Cir. 1
1979) (where a defendant escaped during an unescorted transfer from a 2
correctional facility in California to a treatment center in Kansas City, Missouri, 3

venue w as proper in the Western District of Missouri); cf. United States v. 4

Wilson , 262 F.3d 305, 32 0

– 2 1 (4th Cir. 2001) (where a defendant transferred fro m 5
a North Carolina prison to a Nevada prison on a limited detainer was 6
erroneously released by Nevada officials and failed to notify federal officials or 7
return to the North Carolina facility, venue was proper in the Eastern District of 8
North Carolina). 9

The Ninth Circuit’s decision in Overaker is instructive. There, the court 10
pointed out that “proper venue is based on the location of the offense, not the 11
personal presence of the offender

. ” 766 F.2d at 1327 (citing Travis v. United 12

States , 364 U.S. 631, 634 (1961 )) . Under the circumstances of the transfer in that 13
case, the defendant “was in the constructive custody of the Arizona [receiving 14
facility] as soon as he was ordered to report to [it], ” making venue proper in the 15

District of Arizona , even i f the defendant n ever physically entered its geographic 16

boundaries

. Id. ; see also Wray , 608 F.2d at 724

– 25 (venue was proper in “the 1713 district in which the required act” of reporting to a treatment center “should 1
have been done”)

. 2
We similarly conclude that, on the undisputed facts of this case, the 3
extended limits of Rasheed’s confinement required him to report to the VOA 4

RRC in Rochester, New York by a designated time on March 2, 201 6

. H is failure 5

to appear there as required cons tituted an escape from the custody of the 6
Attorney General under 18 U.S.C. §§ 751(a) and 4082. On these facts, we hold 7
that venue was proper in the Western District of New York. 8
Rasheed attempts to distinguish Overaker and Wray by pointing out tha t 9
the indictment against him alleged only that he “knowingly, willfully and 10
unlawfully fail[ed] to remain within the extended limits of his confinement and 11
escape[d] , and attempt[ed] to escape, from the [VOA RRC].” Joint App’x at 14

. 12

Because t he indic tment did not allege a failure

- to

- report theory of escape , 13

Rasheed contends, the Government was required to prove an affirmative act 14

rather than a failure to act

— in other words, to establish venue based on an action 15

taken to breach the limits of Rasheed’s confinement rather than a failure to report 16

to the VOA RRC. 1714 We disagree. Nothing in the language of the indictment or the statute 1
suggests that a failure to remain within the extended limits of confinement 2

excludes a failure to report to a designated fa cility at a designated time. The 3
“extended limits of [Rasheed’s] confinement ,” 18 U.S.C. § 4082(a), were defined 4
by Rash eed’s furlough agreement

. And u nder th e terms of that agreement , the 5

VOA RRC was the only place Rasheed was authorized to be as of 12:00 p.m. on 6

March 2, 2016. S ee Ex. App’x at 3

. Whether Rasheed’ s failure to arrive at the 7

VOA R R C on that day represented an affirmative act ( e.g. , getting off the bus at 8
an unapproved stop) or an omission ( e.g. , failing to get off the bus at a 9
designated transfer station) is immaterial to our analysis. What matters is that 10

Rasheed failed to remain within the limits of the confinement under § 4082(a) in 11

this case because he failed to report to the VOA RRC in Roche ster when ordered 12

to do so

. 13
We also reject Rasheed’s separate argument that , even if the escape for 14

which he was convicted is a continuing offense that occurred in part in the 15

Western District of New York, venue is nevertheless improper because his 16

conduct did not have ‘‘substantial contacts’’ with that District

. We have 17
explained that t he “substantial contacts” test applies “only if the defendant 1815 argues that his prosecution in the co ntested district will result in a hardship to 1
him, prejudice to him, or undermine the fairness of his trial.” United States v. 2
Rutigliano , 790 F.3d 389, 399 (2d Cir. 2015) (quotation marks omitted)

. 3
“Otherwise, prosecution . . . may occur in any district in which such offense was 4
begun, continued, or completed.” Id. (quotation marks omitted). 5

But Rasheed does not eve n assert that he suffered any hardship or 6
prejudice. Indeed, throughout the District Court proceedings Rasheed failed to 7

raise a single objection based on venue until after the Government finished its 8

case at trial

. A nd even under the substantial contacts approach that Rasheed 9
urges here , t he mere fact that another district (in this case, the Western District of 10
Virginia) may al so have been a convenient or permissible venue does not mean 11

venue in the Western District of New York was improper. See 18 U.S.C. § 12
3237(a). 13

W e therefore conclude that venue was proper in the Western District of 14

New York and that the District Court correctly denied Rasheed’s motion for a 15
judgment of acquittal on venue grounds

. 1616 II 1
Rasheed next argues that the District Court should have granted his 2

motion for a mistrial based on the District Judge’s statements during jury 3

selection that , Rasheed submits , denied him the right to a fair trial and an 4
impartial jury “capable and willing to decide the case solely on the evidence

. ” 5

United States v. Parse , 789 F.3d 83, 99 (2d Cir. 2015)

. We review the District 6

Court’s denial of a mistrial for an abuse of discretion. United States v. Yannai , 7
791 F.3d 226, 242 (2d Cir. 2015). 8

With re spect to the statements at issue, the District Judge initially informed 9
the panel of prospective jurors that Rasheed “ was in custody” and “in prison” 10

because he “ had committed a crime , a felony .” Joint App’x at 132. The District 11
Judge later drew the jurors’ atte ntion to the United States Deputy Marshal 12
standing near Rasheed in the courtroom , confirming that the Deputy M arshal 13

was there because Rasheed “ is in custody.” Id. at 228. As we have already 14

described, t he District Judge followed each of these remarks with an instruct ion 15

that Rasheed’s custodial status should have no bearing on the verdict. For 16
example , the District Judge at one point told the prospective jurors, “I’m also 17
telling you that you can’t consider that fact, in and of i tself, as a basis to find him 1817 guilt y .” Id. at 132. T he jurors were later warned that “ [t] he fact that he’s in 1
custody has nothing to do with his guilt or nonguilt. . . . That has no bearing on 2
his guilt or nonguilt in this case. . . . [Y]ou, if you’re on this jury, have to make 3
that determination based on what comes out in court [and] . . . whether the 4
government has proven his guilt beyond a reasonable doubt.” Id. at 228

– 29. 5

Rasheed objected to the District Court ’s decision to explicitly refer to the fact that 6

he was in custody

. But the District Court justified the se instructions by 7
explain ing that jurors “would have to be in another zone not to understand that 8
an individual’s in custody, especially when he’s walked into [ the ] court[room],” 9
and that he raised the issue in order to “make sure that the jury doesn’t rely on 10
something that they shouldn’t.” Id. at 231

– 32. 11

We understand that the District Judge’s intention in making these 12

statements was , as the District Judge stat ed, to guard against the possibility that 13
jurors might speculate about Rasheed’s custodial status and then improperly 14
consider that fact in reaching a verdict. We also recognize that such a possibility 15
may be greater in cases like this one, where custody is an element of the charged 16

offense. T he District Court’s approach in this case is nevertheless problematic for 17

at least two reasons . First, the District Judge ’s statements did not merely instruct 1818 the jury to avoid speculat ing about Rasheed’s status ; they went further by 1

confirm ing that Rasheed was in fact in custody at the time of trial . And second, 2

the District Court made these statements without first consulting either the 3

defendant or the Government about whether the state ments were warranted or 4

d esirable

. Cf. United States v. Perez , 144 F.3d 204, 211 (2d Cir. 1998) (affirming 5

conviction over due process objections where the district court offered to give a 6

curative instruction about custody status but defendants did not ultimately 7
request one). The District Court should instead have previewed for the parties 8
its proposed statements to the jurors , thus givin g each side an opportunity to 9

address any undue prejudice or other objections outside the presence of the jury

. 10
It is rarely , if ever , good practice for a district court to make an assertion to the 11
jury that is potentially prejudicial to either party without first apprising the 12
parties that it intends to do so and giving each side a meaningful opportunity to 13
respond

. See United States v. Ronder , 639 F.2d 931, 934 (2d Cir. 1981) (noting in 14
the context of jury notes that “counsel should be afforded an opportunity to be 15
heard before the trial judge responds.”) 16

N ever theless , it was not an abuse of discretion for the District Court to 17
deny Rashee d’s motion for a mistrial. Rasheed had already stipulated to the fact 1819 that he was recently in custody , even though this was an essential element of the 1
escape charge

. This alone significantly diluted the problematic nature and 2
impact of the District Court’s un expected statement s to the prospective jur ors . In 3

addition, each reference to Rasheed’s current custodial status was followed 4
immediately by unambiguous instructions that the fact of custody was not a 5
permissible basis from which the jury could infer guilt. And Rasheed also 6
agreed to a curative jury instruction r elating to the statements , the accuracy of 7
which is not challenge d on appeal. It is an “almost invariable assumption of the 8
law that jurors follow their instructions,” Richardson v. Marsh , 481 U.S. 200, 206 9
(1987) , and Rasheed offers no persuasive reason to suspect that the jurors here 10

did otherwise. 11

For these reasons, the District Court’s statements did not violate Rasheed’s 12
right to a fair and impartial trial in violation of due process , and the denial of a 13

mistrial was not an abuse o f discretion. 14

II I 15

As noted, Rasheed also challenges a number of the District Court’s 16
sentencing determinations , ranging from the applicable Guidelines range to 17
standard and special conditions of supervised release

. 1820 A 1

W e start with Rasheed’s challenge to the calculation of the advisory 2
Guidelines range. On appeal, Rasheed argues that his Pennsylvania state 3

sentences for crimes committed while he was an escapee should have been 4

treated as “ relevant conduct ” under U.S.S.G . § 1B1.3(a) (1)(A) rather than as prior 5
sentences carrying criminal history points under U.S.S.G. §§ 4A1.1 and 6
4A1.2(a)(1). Because Rasheed did not object to the calculation of his criminal 7
history category at sentencing, we review this challenge for plai n error

. 2 We will 8

therefore vacate the sentence only if (1) there is an error, (2) the error is “plain,” 9
(3) it “affect [ s ] substantial rights,” and (4) it “seriously affect [ s ] the fairness, 10
integrity or public reputation of judicial proceedings.” United States v. Gamez , 11
577 F.3d 394, 397 (2d Cir. 2009) ; see also Fed

. R. Crim. P. 52(b)

. 12

2 In advocating before the District Court for a concurrent sentence, Rasheed unsuccessfully argued that the Pennsylvania state convictions shoul d have been treated as “relevant conduct” committed during the “ongoing offense” of escape under U.S.S.G. § 5G1.3(b). Joint App’x at 568. Insofar as Rasheed’s argument before the District Court implicates a different provision of the Guidelines and a sep arate question about consecutive or concurrent sentences, Rasheed’s argument before the District Court differs from the one that he now presses on appeal. During the District Court proceedings, Rasheed did not object to the calculation of his criminal his tory as Category V, to the allocation of criminal history points under U.S.S.G. § 4A1.1 as a result of the Pennsylvania state sentences, or to the advisory Guidelines range of thirty to thirty

- seven months’ imprisonment. As defense counsel agreed at oral argument, plain error review therefore applies to our determination of Rasheed’s current challenge to his consecutive sentence. Oral Arg. Tr. at 11

– 12.21 The District Court treated Rasheed’s Pennsylvania state sentences as prior 1

sentences under U.S.S.G. § 4A1.2(a)(1) and allocated criminal history points to 2
them under § 4A1.1

. Doing so increased Rasheed’s criminal history category 3
from category IV to categ ory V and his advisory sentencing range from 24

– 30 4

months to 30

– 37 months. Rasheed argues that this was error because the 5
definition of “prior sentence” under § 4A1.2(a)(1) excludes sentences imposed for 6
“relevant conduct” under § 1B1.3. See U.S.S.G. § 4 A1.2 cmt. n.1. And, Rasheed 7
contends, the Pennsylvania convictions fit the definition of “relevant conduct” 8
because they were committed “during” the continuing crime of escape. See id. 9
§ 1B1.3(a)(1)(A) (defining “relevant conduct” to include “all acts and omissions 10
committed, aided, abetted, counseled, commanded, induced, procured, or 11
willfully caused by the defendant . . . that occurred during the commission of the 12

offense of conviction” ). 13
Although we have not previously addressed the “rel evant conduct” 14
definition under § 1B1.3 in the context of an escape conviction and crimes 15

committed after a defendant escaped custody and prior to apprehension , we 16

need not determine whether Rasheed can satisfy the second prong of plain error 17

review becaus e Rasheed’s challenge clearly fails under the third prong of the 1822 plain error test . H e has not shown “a reasonable probability that, but for the 1
error, the outcome of the proceeding would have been different

. ” Molina

2

Martinez v. United States , 136 S. Ct. 1338, 1343 (2016) (quotation marks omitted). 3
Even in the case of significant procedural errors, we will not vacate a sentence 4

and remand if “the record indicates clearly that the district court would have 5
imposed the same sentence in any event.” Unit ed States v. Cramer , 777 F.3d 597, 6
601 (2d Cir. 2015) ; see also United States v. Shuster , 331 F.3d 294, 296 (2d Cir. 7
2003). 8

T he sentencing record in this case removes any doubt. The District Court 9
imposed an above

- Guidelines sentence of sixty months ’ im prisonment , which 10

was the statutory maximum and twice the length of the lower end of the 11
advisory range , to run consecutively to Rasheed’s undischarged state sentences

. 12

In justify ing the upward variance from the applicable Guidelines range , the 13

District Court ci ted Rasheed’s “lengthy criminal record,” history of “violations of 14
supervision [and] disciplinary violations while incarcerated ,” and his “repetitive 15

violent criminal conduct

. ” For t he District Court , Rasheed’s past conduct 16
reflected a “life characterized by lawlessness and violence,” a “disregard for the 17
rules and rights of others,” and a failure of “all attempts to rehabilitate,” Joint 1823 App’x at 588, 595

– 97. T he District Court repeatedly affirmed it s intention to 1
impose the maximum permissible sentence. See id. at 574 (“I’m inclined to give 2
you five years to run consecutive,” subject only to any legal “limit[ations] [on ] 3

my discretion to give you the maximum sentence”) ; id. at 560 (“[T]here certainly 4

is a sufficie nt basis, as far as I’m concerned, to give you the maximum 5
sentence.”). On this record, Rasheed has failed to show a reasonable probability 6

that a lower criminal history category and advisory range would have affected 7

the ultimate sentence imposed. 8

Because Rasheed’s arguments founder under the third prong of plain error 9

review, there is also no need for us to d etermine whether the District Court’s 10

erred in treat ing the Pennsylvania state sentences as prior sentences rather than 11

relevant co nduct under the Guidelines

. 12

B 13
Finally , Rasheed challenges three of the conditions of supervised release 14
that the District Court imposed at sentencing

. The first two are special 15

conditions , with one directing him to participate in a substance abuse program 16

and the other in a mental health treatment program . The third condition is a 17

standard “risk

- notification” condition , which we explain further below. 1824 As we confirmed in United States v. Boles , each of these conditions of 1
supervised release must be “reasonably related to (i) the nature and 2
circumstances of the offense and the history and characteristics of the defendant, 3
and (ii) the purposes of sentencing, including the need to afford adequate 4

d eterrence, to protect the public from further crimes of the defendant, and to 5
provide the defendant with needed training or treatment.” 914 F.3d 95, 11 1 (2d 6
Cir. 2019) ; see also 18 U.S.C. § 3583(d). Because Rasheed did not object to the 7

conditions he now conte sts , we review the District Court’s decision to impose 8

them for plain error

. S ee United States v. Haverkamp , 958 F.3d 145, 151 (2d Cir. 9

2020 )

. 10

1 11

Rasheed criticizes the two special conditions of supervised release that 12

relat e to substance abuse and mental health programs on the ground that each 13
requires that he “ contribute to the cost of services rendered

. ” Rasheed contends 14

that before imposing the cost

- contribution requirement the District Court failed 15

to find that he was ab le to pay for the costs of those programs

. See Sp. App’x at 16

5. In support, Rasheed points out that the District Court found that , after 17
spending over 23 years in state prison, he would not be able to pay a fine

. More 1825 importantly, Rasheed also relies on 18 U.S.C. § 3672, which provides that 1
“[w]henever the court finds that funds are available for payment by or on behalf 2
of a person furnished . . . services, training, or guidance, the court may direct that 3
such funds be paid.” Rasheed asks that we vacate the cost contribution 4
requirements of the substan ce abuse and mental health conditions and that we 5

remand to permit the District Court to “revise them,” which we understand to 6

mean that the District Court would modify the judgment to eliminate the cost 7
contribution requirements or make the additional fin dings necessary to justify 8

them

. 9

R emand is unnecessary. “[W]here an order or judgment is unclear, a court 10
retains inherent authority to interpret ambiguities . . . , and in doing so may 11
resort to the record upon which the judgment was based.” United S tates v. 12
Spall one , 399 F.3d 415, 421 (2d Cir. 2005) (quotation marks omitted). The cost 13

contribution requirement here is silent on the issue of how Rasheed’s 14

“contribution” is to be calculated. But t he District Court found that Rasheed w as 15
likely to be unable to pay a fin e, which suggests that his ability to pay is a 16

relevant concern in Rasheed’s case

. We therefore construe the cost

- contribution 17
conditions to provide that the requirement that Rasheed contribute to the cost of 1826 services rendered is contingent upon a finding that he is able to pay such a 1

contribution. See United States v. Young , 910 F.3d 665, 671

– 72 (2d Cir. 20 18) 2
(construing substance abuse and mental health conditions of supervised release 3
to exclude inpatient treatment ). Rasheed also retains the ability to later move to 4
modify or terminate the condition under 18 U.S.C. § 3583(e). 5

2 6

As noted, Rasheed also ra ises a challenge to the standard risk

- notification 7

condition imposed by the District Court , which provided as follows: 8

I f the probation officer determines that you pose a risk to another person 9 (including an organization), the probation officer may require you to 10 notify the person about the risk and you must comply with that 11 instruction. The probation officer may contact th e person and confirm that 12 you have notified the person about the risk. 13 14 Sp. App’x at 4. Rasheed claims that the condition is an improper delegation of 15
judicial authority and discretion to the probation officer. 16

Two months a fter judgment was entered in this case, we held in Boles that 17
an identically worded risk

- n otification condition was an impermissible 18
delegation to the probation officer of “unfettered discretion with respect to the 19
notification requirement.” 914 F.3d at 112. In light of our decision, the District 20
Court for the Western District of New York entered a standing district

- wide 2127 order modifying the standard risk

- notification condition (including as it applies 1
to Rasheed) to read as follows: 2

If the court determines in consulta tion with your probation 3 officer that, based on your criminal record, personal history 4 and characteristics, and the nature and circumstances of your 5 offense, you pose a risk of committing further crimes against 6 another person (including an organization), t he probation 7 officer may require you to notify the person about the risk and 8 you must comply with that instruction. The probation officer 9 may contact the person and confirm that you have notified the 10 person about the risk. 11 Am. Standing Order in re: United States v. Boles (W.D.N.Y. Mar. 22, 2019) 12
[hereinafter “W.D.N.Y. Standing Order”]. As modified by the Western District of 13
New York’s standing order, the risk

- notification condition now requires Rasheed 14
to notify a third party that he “pose[s] a risk of committing further crimes against 15
another person” if “the court determines in consultation with [the] probation 16
officer” that he poses such a risk and if required by the probation officer

. 17
W.D.N.Y. Standing Order. 18
Rasheed argues that the modified condit ion still violates our holding in 19

Boles because it continues to delegate discretion to the probation officer to 20

determine “ whether [Rasheed] must notify the person or entity at risk.” 21
Appellant’s Br. 50. But t hat argument is foreclosed by a number of rec ent 22

decisions in which we have addressed the Western District ’s modified standing 2328 order

. See United States v. Bryant , 976 F.3d 165, 182 (2d Cir. 2020) ; United States 1

v. Birkedahl , 973 F.3d 49, 57 (2d Cir. 2020) ; United States v. Traficante , 966 F.3d 2

99 , 105

– 07 (2d Cir. 2020). 3 A s we have reasoned in th o se decisions, Rasheed’s 3
claim is not yet ripe for review because “ any allegedly improper delegation is 4
conditioned on the district court finding, during [Rasheed’s] term of supervised 5
release, that he poses a risk of committing further crimes against another 6
person,” see Birkedahl , 973 F.3d at 57 (quotation marks omitted) , and any such 7
“ostensibly improper delegation may never actually occur,” Traficante , 966 F.3d 8

at 106 . Accordingly, we decline to consider Rasheed’s challenge to this condition 9
of supervised release , and we express no view of any challenge he may bring in 10
the future should the District Court determine that Rasheed poses a risk to an 11
individual and allows the probation officer to decide whether that individual 12

must be notified. 13

3 See also United States v. Whitaker , 827 F. App’x 39 (2d Cir. 2020) (summary order); United States v. Jackson , 820 F. App’x 73 , 74

– 75 (2d Cir. 2020) (summary order); United States v. Frye , 826 F. App’x 19 , 24

– 25 (2d Cir. 2020) (summary order); United States v. DeCapua , 822 F. App’x 16, 18

– 19 (2d Cir. 2020) ( summary order); United States v. Dill , 822 F. App’x 19, 23 (2d Cir. 2020) (summary order)

.29 CONCLUSION 1

For the for egoing reasons, we AFFIRM the judgment of the District Court 2

as modified by the standing order of the United States District Court for the 3

Western District of New York

. 4

5