09-1283-cr
United States v. Mercado

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMM ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
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DOCUMENT FILED W ITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER
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       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 25th day
of March, two thousand ten.

Present:
         RALPH K. WINTER,
         ROBERT A. KATZMANN,
                Circuit Judges,
         JED S. RAKOFF,
                District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            No. 09-1283-cr

DAMION TOWNSEND, also known as Poochie, DARRYL WINFREE, also known as Fatboy,

           Defendants,

ISAIAH MERCADO, also known as Spanky,

         Defendant-Appellant.
________________________________________________



       *
       The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
New York, sitting by designation.
 For Defendant-Appellant Isaiah              GAIL JACOBS , Great Neck, NY
 Mercado:
 For Appellee:                               GLEN A. KOPP , Assistant United States Attorney
                                             (Michael D. Maimin, Assistant United States
                                             Attorney, of counsel), for Preet Bharara, United
                                             States Attorney for the Southern District of New
                                             York, New York, NY


      Appeal from the United States District Court for the Southern District of New York
(Keenan, J.).

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

DECREED that the judgment of the district court entered March 24, 2009, is AFFIRMED.

          Defendant-Appellant Isaiah Mercado appeals from a judgment of the United States

District Court for the Southern District of New York (Keenan, J.), entered March 24, 2009,

revoking his term of supervised release and sentencing him to 12 months’ imprisonment. We

assume the parties’ familiarity with the facts, procedural history, and specification of issues on

appeal.

          Mercado first argues that the district court erred in denying his motion to suppress the

evidence on which the government relied to establish that he had violated the terms of his

supervised release. At a suppression hearing, the government bears the burden of showing, by a

preponderance of the evidence, that the evidence was lawfully obtained. See, e.g., United States

v. Heath, 455 F.3d 52, 69 (2d Cir. 2006). We review the district court’s findings of fact for clear

error and its legal conclusions de novo. See, e.g., United States v. Peterson, 100 F.3d 7, 11 (2d

Cir. 1996).

          Mercado’s supervised release was subject to the condition that



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       [t]he defendant shall submit his person, residence . . . or any other premises under his
       control to a search on the basis that the probation officer has reasonable belief that
       contraband or other evidence of a violation of the conditions of the release may be found.
       The search must be conducted at a reasonable time and in a reasonable manner.

Supp. App. 95. He argues that the quantum of evidence necessary to ground the “reasonable

belief” required to search his residence is at least equal to the quantum of evidence necessary to

ground a “reasonable suspicion” for the purposes of a stop and frisk under Terry v. Ohio, 392

U.S. 1 (1968). He further asserts that the information provided to his probation officer by the

Bronx District Attorney’s office was not sufficient to establish a “reasonable belief” because it

ultimately came from a confidential informant, and there was insufficient corroborating

information or knowledge of the veracity of the informant to deem it reliable.

       We have previously explained that the federal system of supervised release “presents

‘special needs’ beyond normal law enforcement that may justify departures from the usual

warrant and probable-cause requirements.” Unites States v. Reyes, 283 F.3d 446, 461 (2d Cir.

2002) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987)). In Reyes, we held that

because of the strong government interest in ensuring that a releasee complies with the terms of

his supervised release, “the probable cause requirements of the Fourth Amendment, which apply

to a regular law enforcement officer executing a search warrant for an individual’s home, simply

do not apply to visits by probation officers to the homes of convicted persons serving a term of

supervised release.” Id. at 462. We did not address the requirements for conducting a search (as

opposed to a visit) of a releasee’s home pursuant to a condition of his supervised release.

However, the Supreme Court’s holding in Griffin establishes that, where “special needs” such as

those presented by the supervised release system exist, it is “reasonable to permit information



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provided by a police officer, whether or not on the basis of firsthand knowledge, to support a . . .

search.” 483 U.S. at 879-80 (emphasis added and footnote omitted). Indeed, the circumstances

of Griffin are similar to those presented here: there, a probation officer received information

from the police department that “there were or might be guns in [the probationer’s] apartment.”

Id. at 871. A search of the probationer’s home was conducted on the basis of this unadorned

information, and contraband was found. Id.

       We need not, at this juncture, specify whether the “reasonable belief” standard imposed

by the search condition of Mercado’s supervised release is equivalent to the “reasonable

grounds” condition at issue in Griffin, id., because the information received by Mercado’s parole

officer was more detailed and specific than the information received by the parole officer there.

In this case, both the Bronx District Attorney’s office and the New York Police Department

confirmed that Mercado was a person of interest in an ongoing investigation of an unsolved

robbery and homicide. A Bronx Assistant District Attorney provided Mercado’s parole officer

with details about the crime that she had learned from a confidential witness, including that the

perpetrators “waited in bushes outside the house of [a] drug dealer, and when the drug dealer

came home, the other individual, not Mr. Mercado, shot the victim twice, killing him, and two

duffel bags of marijuana were stolen at that time.” Supp. App. 24. Even assuming, for the sake

of argument, that a “reasonable belief” standard is close to the “reasonable suspicion” standard

that applies in the Terry context, this case is a far cry from the anonymous phone call to the

police that the Supreme Court found inadequate to establish a “reasonable suspicion” in Florida

v. J.L., 529 U.S. 266, 268 (2000). Mercado’s probation officer received specific information

from law enforcement officials working on an ongoing investigation that suggested contraband


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might be found in Mercado’s home. The search did not violate Mercado’s Fourth Amendment

rights, and his suppression motion was properly denied.

       Mercado next argues that the evidence did not support the district court’s finding that he

had violated the terms of his supervised release by possessing ammunition because he shared his

bedroom, where the contraband was found, with his brother. “[T]he decision to revoke probation

will only be overturned if the district court abused its discretion.” United States v. Barth, 899

F.2d 199, 202 (2d Cir. 1990). We review the court’s factual findings for clear error. See United

States v. Thomas, 239 F.3d 163, 168 (2d Cir. 2001). At a revocation hearing, the government

must prove the violation or violations by a preponderance of the evidence. 18 U.S.C. 3583(e)(3).

The bag containing the ammunition was found under a bed that Mercado’s mother identified as

his; on a crate next to the bed were pay stubs and rental car receipts bearing his name. In light of

these facts, the district court’s finding that it was more likely than not that the ammunition

belonged to Mercado was not clearly erroneous.

       Finally, Mercado argues that the district court erred in imposing sentence because 1) it

failed to articulate its reasons for the sentence imposed, and 2) the sentence was excessive in

length. In general, “[t]he standard of review on the appeal of a sentence for violation of

supervised release is now the same standard as for sentencing generally: whether the sentence

imposed is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005). Because

Mercado raised no objection on the ground of either procedural or substantive unreasonableness

at the time of sentencing, however, we review for plain error. See Fed. R. Crim. P. 52(b); United

States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (per curiam).

       Under 18 U.S.C. § 3553(c), a sentencing court “at the time of sentencing, shall state in


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open court the reasons for its imposition of the particular sentence,” and in general, a district

court commits procedural error “if it fails adequately to explain its chosen sentence,” United

States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Here, the district court, in

imposing a one-year term of imprisonment, did not explain its reasons for doing so except to note

that this was the term recommended by the Probation Office. However, as we explained in

Espinoza,

       [e]stablishing that a sentencing court failed to fulfil the “open court” requirement is not,
       however, tantamount to establishing plain error. . . . [F]ailure to satisfy the open court
       requirement of § 3553(c) . . . does not constitute “plain error” if the district court relies on
       the PSR, and the factual findings in the PSR are adequate to support the sentence.

514 F.3d at 212 (internal quotation marks omitted). By the same token, in the context of a

sentencing for a violation of supervised release, the district court’s reliance on the

recommendation of the Probation Office amounts to an adequate explanation of the reasons for

the sentence imposed, at least for the purposes of plain error review.

       Finally, we are not persuaded by Mercado’s claim that the district court’s sentence was

substantively unreasonable. “We will . . . set aside a district court’s substantive determination

only in exceptional cases where the [district] court’s decision cannot be located within the range

of permissible decisions.” Cavera, 550 F.3d at 189 (emphasis and internal quotation marks

omitted). Here, Mercado possessed ammunition, a small quantity of drugs, and drug

paraphernalia within a year of being released from prison following his conviction on a felon-in-

possession charge. Although Mercado was otherwise compliant with the terms of his supervised

release, under the circumstances, a one-year sentence was not unreasonable. Moreover, the

Guidelines revocation range was 18-24 months. “Although we do not presume that a Guidelines



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sentence is reasonable, we have recognized that ‘in the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range of sentences that would be

reasonable in the particular circumstances.’” United States v. Eberhard, 525 F.3d 175, 179 (2d

Cir. 2008) (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)). The fact that

the term of imprisonment imposed was less than the Guidelines’ suggested sentence reinforces

our conclusion that the district court did not commit plain error.

       We have considered Mercado’s other arguments and find them without merit. For the

foregoing reasons, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      CATHERINE O’HAGAN WOLFE, CLERK




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