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18-2525-cr (L)

United States v. Brogdon

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 6th day of January, two thousand twenty-one.

PRESENT: JOSÉ A. CABRANES,

SUSAN L. CARNEY,

Circuit Judges, 

RICHARD K. EATON, 

Judge.*

UNITED STATES OF AMERICA,

Appellee, 

18-2525-cr

v. 19-1250-cr

AIKIAM FLOYD, aka OCK, CONELL BROGDON, aka 

NELLZ, aka SNELZ, aka MIDGET, aka MIDGE,

Defendants-Appellants,

SOLOMON ARTIS, AKA LIGHT, AKA SPAZ, LEONARD 

BARLETTO, AKA BOOTS, COURTNEY COY, AKA STYLES,

PARRIS DESUZE, AKA KETCHUP, ANDRE HOLMAN, AKA

DRE, DERRICK BIENAIME, AKA MILLZ, AKA CIROC BOSS,

DAVON BROWN, AKA CHICO, MALIK CAMPBELL, AKA INDI,

STANLEY CHERENFANT, AKA BANGER, STEVEN CHERENFANT,

AKA STEVENS CHERENFANT, AKA BEANS, BRANDON 

* Judge Richard K. Eaton, of the United States Court of International Trade, sitting by designation.
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GREENIDGE, AKA B3, CORY HARRIS, AKA WILLIAM HARRIS,

AKA C, JAMAR HARRY, AKA BRICKS 642, JEFFREY JOSEPH,

SHAWN NEWLAND, AKA HELA BANDZ, SILBERT NICHOLSON,

AKA RICO, ZADEK ORGIAS, AKA Z, CORDERO PASSLEY, AKA

LOONEY, GABRIEL PATTERSON, STEPHON RENE, AKA SHORTY,

AKA LIL BANGER, AKEEM WATSON, AKA MONKS,

 Defendants.

FOR APPELLEES: ALLON LIFSHITZ (David C. James, Susan 

Corkery, on the brief), Assistant United 

States Attorneys, for Seth D. DuCharme, 

Acting United States Attorney, Eastern 

District of New York, Brooklyn, NY.

FOR DEFENDANTS-APPELLANTS: MALVINA NATHANSON, New York, NY.

BENJAMIN GRUENSTEIN, Rebecca J. 

Schindel, Andrea Thompson, Cravath, 

Swaine & Moore LLP, New York, NY.

Appeal from an August 14, 2018 judgment of conviction (Floyd) and a May 20, 2019 

judgment of conviction (Brogdon) of the United States District Court for the Eastern District of 

New York (William F. Kuntz, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the District Court be and hereby is

AFFIRMED as to Defendant-Appellant Aikiam Floyd (“Floyd”) and AFFIRMED AND the 

cause REMANDED IN PART as to Defendant-Appellant Conell Brogdon (“Brogdon”).

Floyd pleaded guilty to narcotics trafficking conspiracy and was sentenced to 121 months’ 

imprisonment, three years’ supervised release, and forfeiture of $1,000,000. Brogdon pleaded guilty 

to racketeering conspiracy, and was principally sentenced to 210 months’ imprisonment, to run 

concurrently with two state-court sentences he was already serving for crimes that were “relevant 

conduct” to his federal conviction. We treat each of their appeals in turn and assume the parties’ 

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 

A.

On appeal, Floyd challenges two special conditions of his supervised release: a curfew 

condition and a non-association condition. Floyd contends that we should review his appeal 

applying only relaxed plain error review, arguing that, although he did not object to the supervised 

release conditions at sentencing, he had insufficient opportunity to object before they were imposed. 
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See United States v. Sofsky, 287 F.3d 122, 125-26 (2d Cir. 2002) (reviewing challenge to supervised 

release conditions “without insisting on strict compliance with the rigorous standards of” plain error 

review where defendant did not object to condition of supervised release, but also “had no prior 

knowledge” that condition would be imposed); see also United States v. Green, 618 F.3d 120, 122 (2d 

Cir. 2010) (“relax[ing] the plain error standard” because defendant did “not receive prior notice of 

the condition” of supervised release). For the reasons outlined below, however, under either plain 

error or “relaxed” plain error review, we cannot find that the District Court erred in imposing these 

two conditions of supervised release.

First, Floyd argues that the District Court erred when, in imposing the curfew condition, it 

did not explain this part of his sentence and its relationship to the goals of sentencing. But the 

District Court “expressly adopt[ed] the actual factual findings of the presentence investigation 

report” when it imposed the conditions of release. In the alternative, Floyd argues that the District 

Court impermissibly delegated its authority to the Probation Office. Here, Floyd cites United States v. 

Matta, where we held that “a district court may not delegate to the Probation [Office]

decisionmaking authority which would make a defendant’s liberty itself contingent on a probation 

officer’s exercise of discretion.” 777 F.3d 116, 122 (2d Cir. 2015). But the District Court did not 

delegate to the Probation Office decision-making authority that makes Floyd’s liberty contingent on 

his probation officer’s exercise of discretion—the Probation Office cannot decide whether to 

impose the curfew in the first instance; it can only adjust the curfew times to accommodate Floyd. 

Floyd also challenges the imposition of a non-association condition. He relies on United 

States v. Green to argue that this condition is unconstitutionally overbroad. 618 F.3d 120. In Green, we 

“assumed” that there are “constitutionally required limitations on the breadth of ‘association,’ 

including that the prohibition only limits association with gang members known to the probationer, 

and excludes ‘incidental contacts.’” Id. at 123. Applying the logic of Green to this case, we assume

that the condition only limits Floyd’s association with gang members known to him and excludes 

“incidental contacts.” We also note that the Probation Office will provide Floyd with a nonexclusive prohibition list of prohibited places. On either plain error or relaxed plain error review, 

were therefore reject these challenges.

B.

On appeal, Brogdon raises several arguments why his sentence should be vacated. Because 

Brogdon lodged his objections at sentencing, we review for harmless error. United States v. Wilson, 

920 F.3d 155, 162 (2d Cir. 2019).

First, Brogdon argues that the Government breached his plea agreement by arguing for the 

application of a role enhancement at sentencing. Brogdon also argues that the District Court 

committed procedural error at sentencing when it imposed a role enhancement without making 

supporting factual findings. In a February 14, 2020 order, we granted the Government’s motion to 
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dismiss Brogdon’s appeal with respect to all of his challenges except for his U.S.S.G. § 5G1.3 claim, 

citing Brogdon’s waiver of his appeal rights. Accordingly, we do not here review the role 

enhancement and plea agreement breach arguments made in Brogdon’s opening brief. 

Finally, Brogdon argues that the District Court committed procedural error when it declined 

to adjust his sentence to account for time served on a related state conviction pursuant to U.S.S.G. 

§ 5G1.3(b) or when it failed to explain its reasons for declining to adjust his sentence. On the 

present record we cannot yet conclude with confidence that the sentence is procedurally reasonable. 

Our review of the sentencing transcript reveals that the District Court explicitly recognized that 

§ 5G1.3(b) applied to Brogdon’s sentencing, and noted that § 5G1.3(b) provides for both an 

adjustment and the imposition of concurrent sentences. Having set forth the terms of § 5G1.3(b), 

the District Court then stated that: “[t]he parties, however, stipulated in the plea agreement the 

terms of incarceration should run concurrently, the Plea Agreement at Paragraph 2, and this Court 

so orders.” Joint App’x 282. It did not offer an explanation for declining to adjust Brogdon’s 

sentence downward pursuant to § 5G1.3(b)(1). 

Accordingly, we remand so that the District Court may state its reasoning for declining to 

adjust Brogdon’s sentence downward in accordance with § 5G1.3(b)(1). In so doing we stress that 

we are not intimating a view on the merits of any conclusion that the District Court might state on 

the record on remand. In the interest of judicial economy, however, this panel will retain jurisdiction 

over any subsequent appeal.

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CONCLUSION

We have reviewed all of the remaining arguments raised by Floyd and Brogdon on appeal

and find them to be without merit. For the foregoing reasons, we AFFIRM the August 14, 2018 

judgment of conviction of the District Court with respect to Floyd. For the foregoing reasons, we 

also AFFIRM the May 20, 2019 judgment of conviction of the District Court with respect to

1 See United States v. Rosa, 957 F.3d 113, 121 n.29 (2d Cir. 2020) (explaining that this Court has 

taken two approaches as to the appropriate remedy for a violation of § 3553(c), depending on the 

circumstances of a district court’s failure to comply: (1) in United States v. Lewis, 424 F.3d 239, 249

(2d Cir. 2005), remanding “with instructions that the district court vacate the sentence and conduct a 

full resentencing,”; and (2) affirming the judgment of conviction and sentence, remanding “for an 

adequate statement of reasons,” but retaining “jurisdiction in the event of a subsequent appeal,” 

termed a Jacobson remand, United States v. Zackson, 6 F.3d 911, 914, 924 (2d Cir. 1993); see also United 

States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994)).
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Brogdon, except to the extent that we REMAND the cause to the District Court for a statement of 

reasons.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk