20-2185-cr 

United States v. Ortiz

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 TO A 

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 15 3 th day of June, two thousand twenty-one.

4

5 PRESENT: RAYMOND J. LOHIER, JR.,

6 WILLIAM J. NARDINI,

7 Circuit Judges,

8 JOHN P. CRONAN,

9 Judge.*

10 _________________________________________

11

12 UNITED STATES OF AMERICA,

13

14 Appellee,

15

16 v. 20-2185-cr

17

18 MOISES ORTIZ, AKA MO, 

19

20 Defendant-Appellant.

21 _________________________________________

* Judge John P. Cronan, of the United States District Court for the Southern District of 

New York, sitting by designation. 
2

1 FOR DEFENDANT-APPELLANT: James P. Egan, Assistant 

2 Federal Public Defender, for

3 Lisa A. Peebles, Federal Public 

4 Defender, Office of the Federal 

5 Public Defender for the 

6 Northern District of New York, 

7 Syracuse, NY

8

9

10 FOR APPELLEE: Paul D. Silver, Assistant 

11 United States Attorney, for

12 Antoinette T. Bacon, Acting 

13 United States Attorney for the 

14 Northern District of New York, 

15 Albany, NY

16 Appeal from a judgment of the United States District Court for the 

17 Northern District of New York (Mae A. D’Agostino, Judge).

18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

19 AND DECREED that the judgment of the District Court is REMANDED. 

20 Moises Ortiz appeals from a judgment of the District Court (D’Agostino, J.)

21 imposing a sentence of 27 months’ imprisonment and a six-month term of home 

22 detention, to be served on a date and under conditions set by Ortiz’s probation 

23 officer, as a special condition of supervised release following his violation of 

24 previously imposed conditions of supervised release. On appeal, Ortiz
3

1 challenges the home detention condition as procedurally unreasonable. We 

2 assume the parties’ familiarity with the underlying facts and prior record of 

3 proceedings, to which we refer only as necessary to explain our decision to 

4 remand the case to the District Court. 

5 We review a district court’s sentencing decision for procedural 

6 reasonableness “under a deferential abuse-of-discretion standard.” United States 

7 v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quotation marks omitted). 

8 A sentencing court makes a procedural error if, among other things, it “fails 

9 adequately to explain its chosen sentence,” including “any deviation from the 

10 Guidelines range.” Id. at 190 (quotation marks omitted). “Where, as here, a 

11 defendant does not object at sentencing to a district court’s failure to explain its 

12 reasoning, we review the procedural challenge for plain error.” United States v. 

13 Smith, 949 F.3d 60, 66 (2d Cir. 2020).

14 Ortiz argues that the District Court committed plain error — under either a 

15 “relaxed” or traditional plain error standard — when it failed to deduct at least 

16 some portion of his six-month term of home detention from the 27-month term of 

17 incarceration imposed after the revocation of his original term of supervised 
4

1 release. We disagree. The applicable Guidelines range for Ortiz’s violation of 

2 supervised release was a term of imprisonment of 21–27 months, and the 

3 statutory maximum was a 60-month term of imprisonment. The Sentencing 

4 Guidelines provide that “[h]ome detention may be imposed . . . only as a 

5 substitute for imprisonment.” U.S.S.G. § 5D1.3(e)(2). Thus, we have held that 

6 the combined terms of imprisonment and home detention may not exceed the 

7 statutory maximum because there is no additional period of imprisonment for 

8 which home detention could serve as a substitute. See United States v. Leaphart, 

9 98 F.3d 41, 43 (2d Cir. 1996). But this Court has yet to determine if any limits 

10 exist on a district court’s discretion to impose a term of home detention where, as 

11 here, the total period of imprisonment plus the ensuing period of home 

12 confinement — 33 months —does not exceed the statutory maximum term of 

13 imprisonment — 60 months. 

14 Ortiz also argues that the District Court should have better explained why 

15 it was imposing an “above-Guidelines” sentence or why a curfew could not have 

16 been imposed in lieu of home detention. We disagree that the District Court’s 

17 justification was error, let alone plain error. “[T]he degree of specificity required 
5

1 for reasons behind a [violation of supervised release] sentence is less than that for 

2 plenary sentencing.” Smith, 949 F.3d at 66. The District Court explained on the 

3 record that it considered the violations of supervised release at issue to be “very 

4 serious.” App’x 56. It pointed out that Ortiz had committed another 

5 misdemeanor only a year after being released from a 121-month term of 

6 incarceration, and that he had apparently traveled outside of the district several 

7 times without informing his probation officer. The District Court’s explanation

8 adequately justified the six-month term of home detention. 

9 Ortiz submits that the District Court failed to specify that he would be able 

10 to leave his home for authorized or approved absences for “gainful employment, 

11 community service, religious services, medical care, education or training 

12 programs.” Appellant’s Br. 16. As Ortiz acknowledges, the definition of “home 

13 detention” under the Sentencing Guidelines provides that “[w]hen an order of 

14 home detention is imposed, the defendant is required to be in his place of 

15 residence at all times except for” such “approved absences,” and “such other 

16 times as may be specifically authorized.” See U.S.S.G. § 5F1.2 cmt. 1. 

17 Nevertheless, the Government does not oppose a limited remand to permit the 
6

1 District Court to amend the judgment to specify that Ortiz is permitted to leave 

2 his place of home detention for such absences as approved. We therefore 

3 remand to permit the District Court to amend the judgment in this way. 

4 Finally, Ortiz also claims that the District Court impermissibly delegated 

5 authority to the Probation Office when, at sentencing, it stated that Ortiz was to 

6 “serve 6 months in home detention, commencing on a date and under conditions 

7 to be set by the probation officer.” App’x 62. Here, the Probation Office did not 

8 (and could not) decide whether to confine Ortiz to home confinement in the first 

9 instance, but it was not improper for the District Court to delegate to it some 

10 authority to determine the conditions of Ortiz’s home detention. And Ortiz does 

11 not argue that it was improper for the District Court to delegate to the Probation 

12 Office the date on which home detention is to commence. It is not entirely clear 

13 to us whether, as is typically the case, the district court intended that home 

14 detention would begin running roughly at the start of his term of supervised 

15 release. When imposing a home detention condition, district courts often state 

16 generally that the first x number of months of supervised release shall be spent in 

17 home detention; other courts refer specifically to the date of the defendant’s 
7

1 release from prison, the date when the defendant’s home is fitted with an 

2 electronic monitoring device or other means of surveillance, or even the earliest 

3 practicable date if a specific date is not possible to determine at the time of 

4 sentencing. Here, the District Court did not itself impose any parameters. We 

5 express no view on this issue, because Ortiz has failed to argue it on appeal. In 

6 any event, on remand the District Court should also consider amending the 

7 judgment so that it more specifically describes the start date for Ortiz’s home 

8 detention. 

9 We have considered Ortiz’s remaining arguments and conclude that they 

10 are without merit. For the foregoing reasons, we REMAND to the District Court

11 for the limited purpose of amending the judgment consistent with this summary 

12 order. 

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk of Court