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20-4113-cr

United States v. Heriberto Batiz

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 3rd day of March, two thousand twenty-two.

Present: DEBRA ANN LIVINGSTON,

Chief Judge,

AMALYA L. KEARSE,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 20-4113

HERIBERTO BATIZ,

Defendant-Appellant.

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_____________________________________

For Appellee: CONOR M. REARDON (Stephanie T. Levick and Sandra 

S. Glover, on the brief), Assistant United States 

Attorneys, for Leonard C Boyle, Acting United States 

Attorney, District of Connecticut, New Haven, CT.

For Defendant-Appellant: DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP, 

Middlebury, VT.

1 The Clerk of Court is directed to amend the caption as set forth above.
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Appeal from a judgment of the United States District Court for the District of Connecticut 

(Bolden, J.).

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

DECREED that the judgment of the district court is AFFIRMED in part and the case is 

REMANDED for further proceedings.

Defendant-Appellant Heriberto Batiz (“Batiz”) was convicted in 2004, following his guilty 

plea to one count of conspiracy with intent to distribute cocaine, see 21 U.S.C. §§ 841(b)(1)(A)

and 846, and sentenced by the United States District Court for the District of Connecticut (Covello, 

J.) to 120 months’ imprisonment and five years of supervised release. Then, in 2016, Batiz 

pleaded guilty to two counts of illegal sexual contact with a minor, an offense which he committed 

during his term of federal supervised release, and was sentenced by the Connecticut Superior Court

to seven years’ imprisonment and five years of special parole on each count, to be served 

consecutively. 

On June 29, 2020, the United States Probation Office filed a violation of supervised release 

report, alleging that Batiz had violated a mandatory condition of his supervised release, which 

prohibited him from committing another federal, state, or local offense. Batiz admitted to the 

violation, and on December 4, the United States District Court for the District of Connecticut 

(Bolden, J.) revoked his supervised release and sentenced him to ten months’ imprisonment and 

five years of supervised release for the violation. The district court imposed this sentence to run 

consecutively to the Connecticut state sentence that Batiz was already serving. The district court 

also imposed special conditions of supervised release. As relevant to this appeal, the court 

prohibited Batiz from incurring credit card charges over $500 or from opening new lines of credit 
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and required him to provide financial reports and records to probation upon request. The district 

court did not explain the basis for these conditions, and Batiz did not object to them.

Batiz now appeals the substantive reasonableness of his sentence for violating supervised 

release — specifically, the district court’s decision to impose the ten-month term of imprisonment 

to run consecutively to (rather than concurrently with) his Connecticut state sentence — and asserts 

that the district court committed plain error by imposing the aforementioned special conditions. 

We assume the parties’ familiarity with the facts and record of prior proceedings, which we 

reference only as necessary to explain our decision to affirm in part and remand for further 

proceedings.

A. Substantive Reasonableness

Batiz first challenges the district court’s decision to impose the ten-month term of 

imprisonment to run consecutively to his state-court sentence. This, he contends, rendered his 

federal sentence substantively unreasonable because it made him ineligible for parole under 

Connecticut state law and thus potentially increased the time that he would spend in prison by 

nearly six years. We disagree. 

“Sentences for violations of supervised release are reviewed under the same standard as 

for sentencing generally: whether the sentence imposed is reasonable.” United States v. Smith, 

949 F.3d 60, 65–66 (2d Cir. 2020) (internal quotation marks omitted). A sentence is reviewed 

for substantive unreasonableness “under a deferential abuse-of-discretion standard.” United 

States v. Betts, 886 F.3d 198, 201 (2d Cir. 2018) (internal quotation marks omitted). “Review for 

substantive unreasonableness requires that we consider the totality of the circumstances, giving 

due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional 

advantages of district courts.” Smith, 949 F.3d at 66 (internal quotation marks omitted). “That 
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conclusion applies with particular force to probation violation proceedings, where the sentencing 

judge has unique insights” into both the circumstances surrounding the initial sentence “and the 

degree to which the violation represents a serious betrayal of the court’s trust and a risk of future 

criminal conduct.” United States v. Verkhoglyad, 516 F.3d 122, 136 (2d Cir. 2008). Appellate 

courts “reverse for substantive unreasonableness only when the trial court’s sentence cannot be 

located within the range of permissible decisions.” Smith, 949 F.3d at 66 (internal quotation 

marks omitted). 

Batiz’s challenge is unavailing. The record reflects that Batiz expressed his preference 

for a concurrent sentence to the district court and drew its attention to the potentially harsh 

collateral effects that a consecutive sentence would have on his eligibility for parole under 

Connecticut state law. After considering Batiz’s request, the district court concluded that a 

consecutive sentence would better serve the purposes embodied in 18 U.S.C. § 3553(a). In 

particular, the district court emphasized that Batiz “violated significant trust in ways that are 

really . . . quite damaging to society,” and that the court had to impose a sentence that “make[s] 

sure society is protected.” App’x at 53–55. Moreover, the district court’s imposition of a 

consecutive sentence is supported by the applicable United States Sentencing Guidelines policy 

statement, which provides that “[a]ny term of imprisonment imposed upon the revocation of 

probation or supervised release shall be ordered to be served consecutively to any sentence of 

imprisonment that the defendant is serving . . . .” U.S.S.G. § 7B1.3(f) (emphasis added). 

Batiz’s argument also assumes that he would be released on parole after serving half his state 

sentence. But early release is discretionary under Connecticut law. See Conn. Gen. Stat. § 54-

125a. Thus, it is not clear that the consecutive nature of the federal sentence has increased the 

time Batiz will spend in prison by any more than ten months. Accordingly, we are not persuaded
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that the district court’s sentence “cannot be located within the range of permissible decisions.” 

Smith, 949 F.3d at 66 (internal quotation marks omitted).

B. Special Conditions of Supervised Release

Batiz next challenges the district court’s imposition of two special conditions of supervised 

release involving his personal finances: the condition (number two) prohibiting him from incurring 

credit card charges over $500 or from opening new lines of credit, and the condition (number 6)

requiring him to provide financial reports and records to probation upon request.

When a defendant, as here, failed to object to challenged conditions of supervised release 

before the district court, “we review only for plain error.” United States v. Green, 618 F.3d 120, 

122 (2d Cir. 2010); Fed. R. Crim. P. 52(b). “Under plain error review, the court must first find 

an obvious error that affects substantial rights.” Green, 618 F.3d at 122. “Then, the court may 

use its discretion to correct the error if it seriously affects the fairness, integrity or public reputation 

of judicial proceedings.” Id. (internal quotation marks omitted). “On occasion, however, we 

have reviewed unobjected to sentencing errors without rigorous application of plain error 

standards.” United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). When a defendant 

appeals a condition of supervised release and “d[id] not receive prior notice of the condition,” we

“relax the plain error standard” and “entertain [the defendant’s] challenge without insisting on 

strict compliance with the rigorous standards of Rule 52(b).” Green, 618 F.3d at 122 (internal 

quotation marks omitted).

The record does not indicate whether Batiz had prior notice of the challenged conditions. 

Nonetheless, we need not decide the precise standard of review because remand (to which the 

Government has consented) is necessary even assuming strict application of Rule 52(b). First, 

the district court failed “to state on the record the reason for imposing” the conditions, and the 
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district court’s reasoning is not “self-evident in the record.” Betts, 886 F.3d at 202 (internal 

quotation marks omitted). Second, the district court’s “obvious error” affects Batiz’s “substantial 

rights” — the challenged conditions, unless explained, appear to restrict Batiz’s liberty more than 

is reasonably necessary. Id. 

“A district court is required to make an individualized assessment when determining 

whether to impose a special condition of supervised release, and to state on the record the reason 

for imposing it; the failure to do so is error.” Id. “In the absence of such an explanation, we 

may uphold the condition imposed only if the district court’s reasoning is self-evident in the 

record.” Id. (internal quotation marks omitted). In either case, “[t]here must be a reasonable 

relationship between the factors considered by the district court in the individualized assessment 

and the special condition of release being challenged,” and the condition “must impose no greater 

restraint on liberty than is reasonably necessary to accomplish sentencing objectives.” United 

States v. Haverkamp, 958 F.3d 145, 151 (2d Cir. 2020). 

Accordingly, we remand to the district court to reconsider whether the challenged 

conditions are warranted, and if so, to explain its rationale for imposing them. The district court 

may invite the parties to further develop the record to support or oppose the imposition of these 

conditions and may retain, modify, or remove them. Upon such decision by the district court, 

either party may restore the matter to the active docket of this Court by letter, without filing a new 

notice of appeal. If either party seeks further action from this Court, the matter will be referred 

to this panel. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994) (recognizing that 

appellate courts may seek “supplementation of a record without a formal remand or the need for a 

new notice of appeal before the appellate panel acts on the supplemental record”).
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We have considered Batiz’s remaining arguments and find them to be without merit. We

therefore AFFIRM the judgment of the district court to the extent that it imposes on Batiz a 10-

month prison term to be served consecutively to his state sentence, and imposes special conditions 

of supervised release other than those numbered two and six. As to conditions two and six, we 

REMAND for further proceedings consistent with this order. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court