17-3206 

U.S. v. Figueroa 

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. 

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 13th day of March, two thousand nineteen. 

PRESENT: 

ROBERT D. SACK, 

REENA RAGGI, 

SUSAN L. CARNEY, 

Circuit Judges. 

_________________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

 v. No. 17-3206 

EDWIN FIGUEROA, 

 Defendant-Appellant. 

_________________________________________

FOR APPELLANT: STEVEN Y. YUROWITZ, Esq., New York, 

NY. 

FOR APPELLEE: MONICA J. RICHARDS, Assistant United 

States Attorney, for James P. Kennedy, Jr., 

United States Attorney for the Western 

District of New York, Buffalo, NY.
 

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

of New York (Geraci, C.J.). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on September 27, 2017, is 

AFFIRMED IN PART and the sentence is VACATED IN PART and the cause is 

REMANDED IN PART for resentencing. 

Edwin Figueroa appeals from that part of a judgment sentencing him to 30 months’ 

supervised release for violating supervision conditions imposed as part of an amended 

sentence for his 2005 firearms conviction. 

Originally sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 

§ 924(e)(1), to 18 years in prison, and five years of supervised release, Figueroa successfully 

moved to vacate that sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015) 

(“Johnson 2015”). See Dist. Ct. Dkt. 127, No. 4-CR-6106, (Apr. 19, 2016 Amended Judgment). 

Because Figueroa had by then been imprisoned for approximately two years more than the 

statutory maximum for non-ACCA convictions, he was resentenced for his 2005 conviction 

to time served, to be followed by three years of supervised release. 

Since resentencing, Figueroa has violated the terms of his supervised release on 

several occasions, prompting imposition of a five-month prison term (now completed) and 

the 30-month supervision term challenged on this appeal. We assume the parties’ familiarity 

with the underlying facts, procedural history, and arguments on appeal, to which we refer 

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

resentencing. 

Figueroa argues that the challenged 30-month term of supervised release violates 18 

U.S.C. § 3583(h). Figueroa specifically faults the District Court for failing to credit him with 

(1) 14 days spent in detention, in May 2017, while awaiting admission to a residential reentry 

center, and (2) 90 days, in March 2017, during which he was subject to a curfew condition. 

Figueroa asserts that resentencing is further warranted by the District Court’s failure to 
 

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consider time above the statutory maximum that he spent in custody before securing vacatur 

of his original sentence. 

We review supervised release components of a sentence for “reasonableness.” United 

States v. Lewis, 424 F.3d 239, 243 (2d Cir. 2005). Because Figueroa did not object 

contemporaneously to the term of supervised release imposed in September 2017, our 

reasonableness review is limited to plain error. United States v. Rodriguez, 775 F.3d 533, 536 

(2d Cir. 2014). No such error is evident here. 

A district court may revoke supervised release and impose in its stead a period of 

incarceration on a preponderance finding that the defendant “violated a condition of 

supervised release.” 18 U.S.C. § 3583(e)(3). Section 3583(h) caps the term of supervised 

release that may be imposed in such circumstances: 

The length of such a term of supervised release shall not exceed 

the term of supervised release authorized by statute for the 

offense that resulted in the original term of supervised release, 

less any term of imprisonment that was imposed upon revocation 

of supervised release. 

18 U.S.C. § 3583(h). In other words, to calculate the maximum imposable term of supervised 

release, the District Court must tally “all post-revocation terms of imprisonment imposed as 

a result of the same underlying offense,” and subtract that number from the maximum term 

of supervised release established by the statute. Rodriguez, 775 F.3d at 536. The parties do not 

dispute that the statutory maximum term of supervised release authorized here is three years. 

See 18 U.S.C. § 3583(b)(2); 18 U.S.C. § 3559(a)(3). Figueroa, however, argues that the District 

Court should have credited against those three years the 14 days he spent in prison after 

being sentenced to time served while awaiting admission to a residential reentry center. 

While not exactly conceding the point, the government consents to a remand for the limited 

purpose of entering an amended judgment that reflects that 14-day reduction. Rodriguez 

supports treating the 14-day period as a “term of imprisonment” under § 3583(h). See

Rodriguez, 775 F.3d at 536–37. Further, the government represents that the Bureau of Prisons 

“would likely give credit for” the 14 days “were it relevant to calculating the remainder of a 
 

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term of imprisonment.” Appellee’s Br. 15. Accordingly, we vacate the supervision 

component of Figueroa’s sentence and remand for the District Court to enter an amended 

judgment reducing Figueroa’s three-year term of supervised release by 14 days. 

Figueroa is not, however, entitled to a credit for the 90 days when he was subject to a 

9:00 pm to 7:00 am curfew. Figueroa analogizes curfew to home confinement, which “may 

be imposed as a condition of . . . supervised release . . . only as a substitute for 

imprisonment.” United States v. Leaphart, 98 F.3d 41, 43 (2d Cir. 1996). But nothing in 

Leaphart or any other case equates a reasonable, limited curfew to home confinement, much 

less imprisonment as necessary to demonstrate plain error. See United States v. Whab, 355 F.3d 

155, 158 (2d Cir. 2004) (“For an error to be plain, it must, at a minimum, be clear under 

current law.” (internal quotation marks omitted)). Indeed, the Sentencing Guidelines 

explicitly distinguish between home detention and curfew. See U.S.S.G. § 5D1.3(e)(2), (5). 

Thus, even if curfew might resemble home confinement for the limited time imposed, that 

timeframe here—from 9:00 pm to 7:00 am—did not effect a deprivation of liberty akin to 

incarceration. 

Figueroa further urges error in the District Court’s failure to consider reducing his 

term of supervised release in light of the additional prison time he served under his 2005 

conviction before vacatur. The argument is defeated by Supreme Court precedent, which 

instructs that when a defendant has remained incarcerated beyond his lawful prison term, a 

reduction in his ensuing term of supervised release is not automatic, but a matter of district 

court discretion. See United States v. Johnson, 529 U.S. 53, 60 (2000) (“Johnson 2000”); accord

United States v. Barresi, 361 F.3d 666, 675 (2d Cir. 2004). Figueroa concedes as much in his 

brief to this court. 

The record shows that the District Court here recognized that Figueroa had overserved his original sentence, but concluded that fact did not give him “a free pass” to violate 

supervised release. App’x 38. This indicates that the challenged sentence represents an 

exercise of discretion, not an oversight. Thus, we identify no error. Nevertheless, we do not 

foreclose the District Court on remand from entertaining a motion from Figueroa to reduce 
 

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his term of supervised release “as it sees fit” in light of time over-served on his 2005 

conviction. Johnson 2000, 529 U.S. 53 at 60. 

* * * 

 We have considered Figueroa’s remaining arguments and conclude that they are 

without merit. The District Court’s judgment is AFFIRMED IN PART and the sentence is 

VACATED IN PART and the cause is REMANDED IN PART for resentencing as 

provided in this order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court