20

- 201

U.S. v. Schwarz

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 1

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 2

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 3

CITING A SUMMARY ORD ER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 4

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 5

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 6

ANY PARTY NOT REPRESENTED BY COUNSEL. 7

At a stated term of the United States Court of Appeals for the Second Circuit, held at 8

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 9

on the 2 5 t h d a y of J a n u a r y

, two thousand twenty

- one

. 10

11

PRESENT: 12

A MALYA L

. K EARSE

, 13

P IERRE N. L EVAL

, 14

S USAN L. C ARNEY

, 15

Circuit Judges

. 16

_________________________________________ 17

18

U NITED S TATES OF A MERICA

, 19

20

Appellee

, 21

22

v. No. 20

- 201 23

24

D ANIEL S CHWARZ

, * 25

26

Defendant

- Appellant

. 27

_________________________________________ 28

29

FOR APPELLANT: Edward S. Zas and Barry D. Leiwant, 30

Assistant Federal Public Defenders, 31

Federal Defenders of New York, Inc., 32

New York, NY

. 33

34

* The Clerk of Court is directed to amend the caption to conform to the above.2 FOR APPELLEE: David C. James and Allen L. Bode, 1

Assistant United States Attorneys, for Seth 2

D. DuCharme, Acting United States 3

Attorney, Eastern District of New York, 4

Brooklyn, NY

. 5

6

Appeal from a judgment of the United States District Court for the Eastern District 7

of New York ( Spatt

, J. ). 8

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 9

ADJUDGED, AND DECREED that the challenged condition of supervised release is 10

VACATED and the case is REMANDED

. 11

In a January 9, 2020 judgment, the district court (Spatt, J. ) sentenced Defendant

12

Appellant Daniel Schwarz to 14 months’ imprisonment based on Schwarz’s plea of guilty to 13

violating a con dition of his supervised release. As part of its sentence for the violation , the 14

district court imposed a two

- year term of supervised release to follow Schwarz’s 14

- month 15

term of incarceration . The district court’s written judgment specifies that Schwarz’s 16

supervised release is subject to the following condition

, among others : 17

If the probation officer determines that that you pose a risk to another 18

person (including an organization), the probation officer may require you to 19

notify the person about the risk and you must comply with that instruction. 20

The probation officer may contact the person and confirm that you have 21

notified the person about the risk. 22

A pp’x 72. Schwarz now challenges this risk notification condition, arguing that this Court’s 23

binding precedent requires that the condition be vacated

. 24

Although we generally review conditions of supervised release for abuse of discretion, 25

we review de novo challenges that are based on an issue of law. See United States v. McLaurin

, 26

731 F.3d 258, 261 (2d Ci r. 201 3). 27

In an opinion issued in the year before th e district court imposed the challenged 28

sentence, we vacated a supervised release condition identical to the condition imposed here, 29

explaining that the condition was “ vague and afford [ ed ] too much discretion to the 30

probation officer.” U nited S tates v. Boles

, 914 F.3d 95, 11 1 (2d Cir. 2019); see also U nited S tates v. 313 Insaidoo , 765 F. App’x 522, 526 (2d Cir. 2019) (summary order) (vacating same condition and 1

citing Boles , 914 F.3d at 111

- 12 ). The g ove rnment agrees with Schwarz that the risk 2

notification condition imposed on him is invalid under Boles

. It consents to vacatur of the 3

challenged condition and to remand so that the district court may impose a risk notification 4

condition that complies with Boles and related precedent

. 5

Schwarz raises no other challenges to his sentence on appeal. In light of the 6

developments discussed above , we VACATE the risk notification condition of Schwarz’s 7

supervi sed release imposed in 2020 and REMAND this case to the district court to permit 8

it, in its discretion, to impose a suitably revised conditio n

. 9

FOR THE COURT: 10

Catherine O’Hagan Wolfe, Clerk of Court 11