09-4085-cr
USA v. Bouknight

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 8th day
of October, two thousand ten.

Present:
            ROBERT A. KATZMANN,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges,
            EDWARD R. KORMAN,*
                        District Judge.
________________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                       v.                                           No. 09-4085-cr

JOHN F. BOUKNIGHT,

            Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                     Richard A. Reeve, Sheehan & Reeve, New Haven,
                                             CT

For Appellee:                                Douglas P. Morabito, Edward Chang, Assistant
                                             United States Attorneys, for David B. Fein, United
                                             States Attorney for the District of Connecticut, New
                                             Haven, CT


       *
        The Honorable Edward R. Korman, United States District Judge for the Eastern District
of New York, sitting by designation.
       Appeal from the United States District Court for the District of Connecticut (Arterton,
J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant John F. Bouknight appeals from a judgment of conviction entered September

25, 2009 (Arterton, J.), following a guilty plea, convicting Bouknight of possessing a firearm

after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1), and sentencing him

principally to 77 months’ incarceration. We assume the parties’ familiarity with the facts and

procedural history of this case.

       On appeal, Bouknight argues that the district court erred by adding two points to his

criminal history for committing the instant crime while “under a criminal justice sentence”

pursuant to U.S.S.G. § 4A1.1(d). Bouknight explains that on the date of the offense that led to

his conviction, he was on conditional discharge as a result of an earlier state narcotics

conviction. This conditional discharge, he contends, was not a criminal justice sentence because

it imposed no conditions.

       In United States v. LaBella-Szuba, 92 F.3d 136, 138 (2d Cir. 1996), we held that a

conditional discharge sentence under section 65.05 of the New York Penal Law was a “criminal

justice sentence” because the state court “could revoke defendant’s conditional discharge

sentence if she committed another offense prior to the termination of the period of conditional

discharge.” We also highlighted the Commentary to section 4A1.1, which states that a term of

unsupervised release is a “criminal justice sentence,” and we noted that there is “no discernible

difference between a conditional discharge sentence and a sentence of unsupervised release.” Id.




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       Likewise here, the Connecticut Code authorizes the state courts to “modify or enlarge the

conditions” of a conditional discharge sentence “[a]t any time during the period of . . .

conditional discharge, after hearing and for good cause shown.” Conn. Gen. Stat. § 53a-30(c).

Bouknight argues that there is a critical difference between the New York statute we addressed

in LaBella-Szuba and the Connecticut statute at issue here because the Connecticut statute does

not provide for revocation of conditional discharge, but only the modification or enlargement of

the conditions. We are not persuaded that this distinction matters, see United States v. Ramirez,

421 F.3d 159, 164 (2d Cir. 2005) (noting that conditional discharge “has a ‘supervisory

component’ insofar as the sentencing court can revoke or modify the sentence if the defendant

violates a condition”) (emphasis added), and, moreover, the Connecticut Supreme Court has

stated that “it is universally held that the commission of a felony violates a condition inherent in

every probation order,” State v. Cator, 781 A.2d 285, 301 (Conn. 2001). While Cator references

probation, and not conditional discharge, the commission of a felony would surely constitute

“good cause” pursuant to Connecticut General Statute § 53a-30(c), permitting the state court to

modify or enlarge the conditions of a conditional discharge. Accordingly, we conclude that the

district court properly considered Bouknight’s conditional discharge to be a criminal justice

sentence under U.S.S.G. § 4A1.1.

       We have reviewed Bouknight’s remaining arguments and conclude that they lack merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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