13-4573
United States v. Doe

                           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
19th day of February, two thousand fifteen.

Present:    Barrington D. Parker,
            Peter W. Hall,
            Debra Ann Livingston,
                           Circuit Judges.
____________________________________________________


United States of America

                                   Appellee,

                 v.                                              Nos. 13-4573-cr

John Doe,

                  Defendant-Appellant.
____________________________________________________

FOR APPELLANT:                        PHILLIP R. KATOWITZ, ESQ., Brooklyn, NY.

FOR APPELLEE:                 AMY BUSA and TANISHA R. PAYNE, Assistant United States
                              Attorneys, for Loretta E. Lynch, United States Attorney for
                              the Eastern District of New York, New York, NY.
_____________________________________________________

       Appeal from the United States District Court for the Eastern District of New York

(Johnson, J.).

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

DECREED that the case is REMANDED for further proceedings consistent with this order.

Defendant-Appellant appeals that portion of his sentence imposing a five-year term of supervised

release. We assume the parties’ familiarity with the underlying facts, the procedural history, and

the issues presented for review.

       All parties agree, and this Court’s inspection confirms, that, when the District Court

imposed a five-year term of supervised release as part of Defendant’s sentence, it appears to have

been under the impression that Defendant was to be sentenced consistent with a conviction under

21 U.S.C. § 960(b)(1), which requires a term of supervised release of “at least 5 years.”

Defendant, however, was to have been sentenced consistent with a conviction under 21 U.S.C.

§ 960(b)(3), which only requires imposing a term of supervised release of “a least 3 years.” It is

necessary, therefore, to remand Defendant’s case to the District Court so it may ensure that

Defendant is sentenced consistent with 21 U.S.C. § 960(b)(3), see United States v. Doe, 297 F.3d

76, 93 (2002) (remanding “for resentencing under 21 U.S.C. § 960(b)(3)”), and, if the District

Court intended to impose a five-year term of supervised release, so it may also set forth the

reasons for the term imposed, see United States v. Stevens, 66 F.3d 431, 438 (2d Cir. 1995).1

       Accordingly, this case is REMANDED for the District Court to consider whether,

knowing that Defendant was to be sentenced consistent with a conviction under 21 U.S.C.

§ 960(b)(3), it would nevertheless have sentenced Defendant to a five-year term of supervised

release and, if so, to explain the reasons for the term imposed. Alternatively, if the District Court

would have sentenced Defendant to a lesser term of supervised release, the court shall vacate the


1
 We note that the amended judgment of the District Court continues to indicate erroneously that
Defendant was guilty under 21 U.S.C. §§ 963 and 960(b)(1). We direct the District Court to
correct this error on remand.

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term of supervised release imposed and resentence Defendant to a different term of supervised

release consistent with the provisions of 21 U.S.C. § 960(b)(3).


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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