16-2679-cr
United States v. Hobdy

                              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
23rd day of June, two thousand seventeen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
                        Circuit Judges,
            EDGARDO RAMOS,1
                        District Judge.
_____________________________________________________
UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                                  16-2679-cr

ERNEST HOBDY,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:        Molly K. Corbett, Assistant Federal Public Defender, for Lisa A.
                                Peebles, Federal Public Defender for the Northern District of New
                                York, Albany, NY.

Appearing for Appellee:         Rajit S. Dosanjh, Assistant United States Attorney, Michael F.
                                Perry, Assistant United States Attorney, for Richard S. Hartunian,
                                United States Attorney for the Northern District of New York,
                                Syracuse, NY.
1
  Judge Edgardo Ramos, United States District Court for the Southern District of New York,
sitting by designation.
       Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant-Appellant Ernest Hobdy appeals from the July 27, 2016 judgment of the
United States District Court for the Northern District of New York (Hurd, J.), revoking his
supervised release and sentencing him to three months’ imprisonment, to be followed by four
years of supervised release. Hobdy has completed his term of imprisonment and is currently on
supervised release. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

       I.      Mootness

         The government argues that Hobdy’s appeal would be moot if we were to affirm the
district court’s findings with respect to any one of the four violations of supervised release,
because Hobdy has served his prison sentence and the district court would be unlikely to reduce
his remaining term of supervised release on remand.

          As a general matter, “[i]f [a defendant] prevails on [an] appeal and we remand to the
district court for further proceedings, the fact that the district court might, because of our ruling,
modify the length of [the defendant’s] supervised release” means that “[a] case or controversy
. . . exists” and the appeal is not moot. Levine v. Apker, 455 F.3d 71, 77 (2d Cir. 2006). Here, if
we were to vacate any of the violations, Hobdy’s appeal should not be dismissed as moot. As a
result of his violations, the district court “extend[ed] the end of Hobdy’s supervision by
approximately 6 months.” Appellee’s Br. at 28. Hobdy’s extended supervised release requires
him, among other things, to report to a probation officer and submit to searches at any time, with
or without a warrant. “The time added to [Hobdy]’s supervised release term limits h[is] freedom
in a way that is a direct adverse legal consequence and is sufficient to maintain a live case.”
United States v. Wiltshire, 772 F.3d 976, 979 (2d Cir. 2014).

         The government notes precedent stating that “[a]n appellate challenge to a criminal
sentence is rendered moot when the defendant has been released from prison and when there is
either no possibility or only a remote and speculative possibility that the district court could or
would impose a reduced term of supervised release were we to remand for resentencing.” United
States v. Key, 602 F.3d 492, 494 (2d Cir. 2010) (internal quotation marks and brackets omitted).
The government argues that the district court’s statements show that Hobdy would not receive a
reduced term of supervised release on remand if we were to vacate fewer than all four
convictions. See, e.g., App’x at 145 (“I hope this is the last time I see you and that you complete
your term of supervised release after you serve a little more time in prison here.”). These
statements, however, fail to demonstrate a merely “remote and speculative possibility” that the
district court would reduce Hobdy’s term of supervised release on remand. Cf. United States v.
Blackburn, 461 F.3d 259, 262 & n.2, 263 (2d Cir. 2006) (holding that appeal was moot because,
among other statements, the district court demonstrated an intention to “keep as close an eye on
[the defendant] as possible for as long as possible”). Hobdy’s appeal is thus not moot.


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       II.     Merits

        Hobdy argues that insufficient evidence supported the district court’s determination that
he committed four violations of his supervised release conditions. “We review the district court’s
finding that [a defendant] violated the conditions of [his] supervised release for abuse of
discretion and its factual findings for clear error.” Wiltshire, 772 F.3d at 979. “A district court
may revoke a term of supervised release if it ‘finds by a preponderance of the evidence that the
defendant violated a condition of supervised release.’” Id. (quoting 18 U.S.C. § 3583(e)(3)).

        Under Condition 3 of his standard conditions of supervised release, Hobdy was required
to “answer truthfully all inquiries by the probation officer and follow the instructions of the
probation officer.” App’x at 14. Under Condition 6, Hobdy was obligated to “notify the
probation officer at least ten days prior to any change in residence . . . , or if such prior
notification is not possible, then within five days after such change.” App’x at 14.

        The district court did not abuse its discretion in finding that Hobdy committed four
violations of these conditions. First, testimony at the revocation hearing provided sufficient
evidence for the district court to determine that Hobdy failed to answer truthfully his probation
officer’s questions about how often he slept at 18 Shaw Street. See, e.g., App’x at 43-44, 76
(Hobdy claimed that he kept no personal belongings at Shaw Street residence, but his alleged
residence at 1010 Herkimer Road also lacked his personal belongings and looked “practically
unlived in”); App’x at 49 (Hobdy’s son admitted that his father had a bedroom at Shaw
residence). Testimony showed that Hobdy committed the second and third violations by failing
to answer truthfully the officer’s questions or follow the officer’s instructions, because Hobdy
told other persons not to answer the officer’s questions and failed to provide requested
information as to one of the occupants of 1673 Neilson Street—his later alleged residence.
Finally, testimony showed that Hobdy failed to report a change in residence. Even if the district
court erred in finding that Hobdy resided at 18 Shaw Street, Hobdy still failed to notify the
officer of a change in residence—from Herkimer Road to Neilson Street—until long after five
days following his move from one residence to the other.

        Hobdy also claims that the violations offend his due process rights because the conditions
were vague and he received insufficient notice of the charged violations. “Due process requires
that a condition of supervised release be sufficiently clear to give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly.” United States v. Reeves, 591 F.3d 77, 80-81 (2d Cir. 2010) (brackets omitted).
Additionally, “[d]ue process requires . . . that a defendant charged with violating a condition of
supervised release be afforded notice of the charges against him before the court may revoke his
supervised release.” United States v. Chatelain, 360 F.3d 114, 121 (2d Cir. 2004). “The notice
must be sufficient to allow the releasee to prepare to defend against the charges,” which is
generally satisfied if it “identifies the . . . the condition allegedly violated” and explains the
alleged violation, including “a description of the basic facts underlying the . . . charge,” such as
“the approximate dates of the events, the location at which they occurred, and the individuals
involved.” Id.



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        We reject Hobdy’s due process challenges. Hobdy received sufficient notice to prepare
his defense; namely, the conditions he allegedly violated, the dates of the incidents, and the bases
for the charges. Moreover, the relevant conditions, which are the standard conditions noted
above, were sufficiently clear that a person “of common intelligence” could understand them,
both as written and as applied in this case.

       We have considered the remainder of Hobdy’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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