20

- 2 185

- 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 O N ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 5 t h day of J u n e , two thousand twenty

- one

. 3 4 PRESENT: RAYMOND J. LOHIER, J R., 5 WILLIAM J. NARDINI, 6 Circuit Judges , 7 JOHN P. CRONAN, 8 Judge. * 9

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

v. 20

- 2 185

- cr 16 17 MOISES ORTIZ , AKA MO, 18 19 Defendant

- Appellant

. 20

_________________________________________ 21

* Judge John P. Cronan , of the United States District Court for the Southern District of New York , sitting by designation.2 FOR DEFENDANT

- APPELLANT : James P. Egan , Assistant 1 Federal Public Defender, for 2 Lisa A. Peebles, Federal Public 3 Defender , Office of the Federal 4 Public Defender for the 5 Northern District of New York , 6 Syracuse, NY 7 8 9 FOR APPELLEE: Paul D. Silver , Assistant 10 United States Attorney, for 11 Antoinette T. Bacon , Acting 12 United States Attorney for the 13 Northern District of New York, 14 Albany , NY 15 Appea l from a judgment of the United States District Court for the 16

Norther n District of New York ( Mae A. D’Agostino , Judge ). 17
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 18

AND DECREED that the judgment of the D istrict C ourt is REMANDED

. 19

Moises Ortiz appeals from a judgment of the District Court ( D’Agostino , J. ) 20
imposing a sentence of 27 months’ imprisonment and a six

- month term of h ome 21

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

officer, as a s pecial c ondition of s u pervised r elease f ollowing h is v iolation of 23

p reviously i mposed c onditions of s upervised r elease. On appeal, Ortiz 243 challenges the home detention condition as procedurally unreasonable

. We 1
assume the parties’ familiarity with the underlying facts and prior record of 2
proceedings, to which we refer only as necessary to explain our decision to 3

remand the case to the District Court

. 4
We review a district court’s sentencing decision for procedural 5

reasonableness “under a deferential abuse

- of

- discretion st andard.” United States 6

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

. 7
A sentencing court makes a procedural error if , among other things, it “fails 8
adequately to explain its chosen sentence,” including “any deviation from the 9
Guidelines range.” Id. at 190 (quotation marks omitted). “Where, as here, a 10
defendant does not object at sentencing to a district court’s failure to explain its 11

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

Smith , 949 F.3d 60, 66 (2d Cir. 2020). 13
Ortiz argues that the District Court committed plain error

— under either a 14
“relaxed” or traditional plain error standard

— when it failed to deduct at least 15
some portion of his six

- month term of home detention from the 27

- month term of 16

incarceration imposed after the revocation of his original term of supervised 174 release

. We disagree. T he applicable Guidelines range for Ortiz’s viola tion of 1
supervised release was a term of imprisonment of 21

– 27 months , and the 2
statutory maximum was a 60

- month term of imprisonment

. T he Sentencing 3

Guidelines provide that “[h]ome detention may be imposed

. . . only as a 4

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

the combined terms of imprisonment and home detention may not exceed the 6
statutory maximum because there is no additional period of imprisonment for 7

which home detention could serve as a subs titute

. See United States v. Leaphart , 8
98 F.3d 41, 43 (2d Cir. 1996) . But this Court has yet to determine if any limits 9

exist on a d istrict c ourt ’s discretion to impose a term of home detention where , as 10

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

confinement

— 33 months

— does not exceed the statutory maximum term of 12
imprisonment

— 60 months

. 13

Ortiz also argues that the District Court should have better explained why 14
it was imposing an “above

- Guidelines” sentence or why a cu rfew could not have 15
been imposed in lieu of home detention

. W e disagree that the District Court’s 16
justification was error, let alone plain error. “[T]he degree of specificity required 175 for reasons behind a [violation of supervised release] sentence is les s than that for 1
plenary sentencing.” Smith , 949 F.3d at 66. T he District Court explained on the 2

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

serious

. ” App’x 56 . It pointed out that Ortiz had committed another 4
misdemeanor only a year after being released from a 121

- month term of 5

incarceration, and that he had apparently traveled outside of the district several 6
times without informing his probation officer

. The District Court’s expla nation 7
adequately justif ied the six

- month term of home detention. 8

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

to leave his home for authorized or approved absences for “ gainful employment, 10
community service, religious services, medical care, education or training 11

programs .” Appellant’s Br. 16

. A s Ortiz acknowledges, the definition of “home 12

detention” under the Sentencing Guidelines provides that “[w]hen an order of 13
home detention is imposed, the defendant is required to be in his place of 14
residence at all times except for ” such “approved absences , ” and “such other 15
times as may be specifically authorized.” See U.S.S.G. § 5F1.2 cmt. 1

. 16

Nevertheless, the Government does not oppose a limited remand to permit the 176 District Court to amend the judgment to specif y that Ortiz is permitted to leave 1
his place of home detention for such absences as approved

. We therefore 2
remand to permit the District Court to amend the judgment in this way. 3
Finally, Ortiz also claims that the District Court impermissibly delegated 4
authority to the Probation Office when, a t sentencing, it stated that Ortiz was to 5

“serve 6 months in home detention , commencing on a date and under conditions 6
to be set by the probation officer.” App’x 62. Here, the Probation Office did not 7
(and c ould not ) decide whether to confine Ortiz to home confinement in the first 8

instance , but it was not improper for the Distri ct Court to delegate to it some 9
authority to determine the conditions of Ortiz’s home detention

. And Ortiz does 10
not argue that it was improper for the District Court to delegate to the Probation 11

Office the date on which home detention is to commence

. It is not entirely clear 12
to us whether, as is typically the case, the district court intended that home 13
detention would begin running roughly at the start of his term of supervised 14

release. When imposing a home detention condition , district courts often stat e 15
generally that the first x number of months of supervised release shall be spent in 16

home detention; other courts refer specifically to the date of the defendant’s 177 release from prison, the date when the defendant’s home is fitted with an 1
electronic monitoring device or other means of surveillance , or even the earliest 2
practicable date if a specific date is not possible to determine at the time of 3
sentencing

. Here, the District Court did not itself impose any parameters. W e 4
express no vie w on this issue, because Ortiz has fail ed to argue it on appeal. In 5

any event , o n remand the District Court should also consider amend ing the 6
judgment so that it more specifically describes the start date for Ortiz’s home 7

detention. 8

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

are without merit. For the foregoing reasons, we REMAND to the D istrict C ourt 10

for the limited purpose of amend ing the judgment consistent with this summary 11

order. 12

FOR THE COURT: 13 Cath erine O ’ Hagan Wolfe, Clerk of Court 14