13-790-cr
United States v. Tourloukis
                               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 14th day of March, two thousand fourteen.

PRESENT: BARRINGTON D. PARKER,
         GERARD E. LYNCH,
         CHRISTOPHER F. DRONEY,
                        Circuit Judges.

———————————————————————

UNITED STATES OF AMERICA,

                                       Appellee,
                              v.                                        No.    13-790-cr


THOMAS TOURLOUKIS,
                                       Defendant - Appellant.

———————————————————————

FOR APPELLANT:                               Colleen P. Cassidy, Federal Defenders of New
                                             York, Inc., New York, New York.

FOR APPELLEE:                                Saritha Komatireddy (Emily Berger, on the brief),
                                             Assistant United States Attorneys, for Loretta E.
                                             Lynch, United States Attorney for the Eastern
                                             District of New York, Brooklyn, New York.

      Appeal from the United States District Court for the Eastern District of New York
(Sandra L. Townes, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Thomas Tourloukis (“Tourloukis”) appeals from an amended judgment entered on

March 21, 2013, in the United States District Court for the Eastern District of New York

(Sandra L. Townes, Judge), convicting him, upon his plea of guilty, of being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and imposing

sentence. We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision.

       As part of his plea agreement, Tourloukis agreed “not to file an appeal or

otherwise challenge . . . the conviction or sentence in the event that the court imposes a

term of imprisonment of 51 months or below.” The district court sentenced Tourloukis to

fifty months’ imprisonment, three years of supervised release, and a $100 special

assessment. As a condition of supervised release, the district court ordered that six

months of that term be spent subject to conditions that required Tourloukis to remain in

his residence from 7 a.m. to 7 p.m. each day, to be enforced through electronic

monitoring, pursuant to 18 U.S.C. § 3563(b)(19). See also 18 U.S.C. § 3583(d). We

refer to that condition as “home confinement.” Tourloukis appeals his sentence,

contending that the district court’s imposition of a six-month period of home

confinement, in addition to a fifty-month term of imprisonment, violated the court’s

obligation to “impose a sentence sufficient, but not greater than necessary” to comply

with the purposes of sentencing, id. § 3553(a), and the requirement that such home


                                              2
confinement should be imposed “only as an alternative to incarceration,” id. §

3563(b)(19). The Government responds that Tourloukis’s agreement to waive his

appellate rights bars his challenge to his sentence, and that, in any event, his sentence is

procedurally reasonable. We conclude that Tourloukis is not barred from bringing this

appeal, but, finding his challenge to his sentence to be without merit, we affirm the

judgment of the district court.

I.     Appellate Waiver

       “Waivers of the right to appeal a sentence are presumptively enforceable.” United

States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). Nonetheless, we “apply appeal-waiver

provisions narrowly and construe them strictly against the Government, in recognition of

the fact that prosecutors’ bargaining power generally exceeds that of defendants and that

the government typically drafts such agreements.” United States v. Oladimeji, 463 F.3d

152, 157 (2d Cir. 2006) (internal quotation marks omitted). Consistent with this practice,

we have repeatedly interpreted appeal-waiver provisions to preserve the right of appeal

where the aspect or component of the sentence challenged on appeal does not

unambiguously fall within the appeal waiver’s scope.1


       1
         See, e.g., United States v. Pearson, 570 F.3d 480, 485 (2d Cir. 2009) (interpreting
agreement to waive defendant’s right to “appeal his conviction and any sentence
incorporating” an order to pay restitution in “full” not to waive an “appeal of possible
errors in the determination of what amount constitutes full restitution” (internal quotation
marks omitted)); United States v. Cunningham, 292 F.3d 115, 116 (2d Cir. 2002)
(interpreting waiver provision agreeing “not to file an appeal or otherwise challenge his
conviction or sentence in the event that the Court imposes the sentence [of time served]”
not to bar appeal of the length of supervised release); United States v. Ready, 82 F.3d
551, 554, 558 (2d Cir. 1996) (interpreting provision “knowingly and expressly waiv[ing]

                                              3
       Tourloukis argues that his agreement not to appeal his sentence if the district court

imposed a term of imprisonment of fifty-one months or below does not bar his present

appeal because, by imposing six months of home confinement in addition to fifty months

of imprisonment, the district court effectively imposed a term of imprisonment of fifty-six

months. In support of this argument, Tourloukis notes that 18 U.S.C. §§ 3583(d) and

3563(b)(19) permit a district court to impose home confinement as a condition of

supervised release “only as an alternative to incarceration.” He relies on a number of

cases from other courts of appeals2 that hold, or suggest, that the term of home

confinement and term of imprisonment, when added together, cannot exceed the



all rights . . . to appeal whatever sentence is imposed, . . . reserving only the right to
appeal from a sentence resulting from an adjusted base offense level of greater than
twenty-three” not to waive appeal of “an illegally imposed restitution penalty”).
       2
         See United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (acknowledging
that there is a “colorable argument that the district court could not have imposed a period
of incarceration and supervised release involving home confinement in excess of two
years, the statutory maximum”); United States v. Ferguson, 369 F.3d 847, 850 (5th Cir.
2004) (holding that, under 18 U.S.C. § 3583, “after sentencing [the defendant] to
twenty-three months’ incarceration, the [district] court could only sentence him to one
month of home detention without violating the two-year statutory maximum term”);
United States v. Boecker, 280 F.3d 824, 826 (8th Cir. 2002) (suggesting in dictum that
sentencing court could have sentenced defendant to twenty-one months in prison, but not
to the statutory maximum term of imprisonment of twenty-four months, because the
defendant had already served three months of home detention). But see United States v.
Polydore, 493 F. App’x 496, 499 (5th Cir. 2012) (rejecting argument that “home
detention is a term of imprisonment for the purposes of calculating the maximum term of
supervised release that may be imposed upon revocation” under 18 U.S.C. § 3583(h)
(emphasis omitted)); United States v. Hager, 288 F.3d 136, 137 (4th Cir. 2002) (rejecting
argument that because “home confinement ‘may be imposed only as an alternative to
incarceration’ [under 18 U.S.C. § 3563(b)(19)], home confinement is equivalent to prison
for the purpose of providing credit against the maximum allowable term of
imprisonment” under § 3583(e)(3)).

                                               4
maximum allowable term of imprisonment, implicitly treating each day of home

confinement as “an alternative to” a corresponding day of imprisonment that the district

court lawfully could have imposed.3

       We need not decide whether each month of home confinement is equivalent for all

purposes to exactly one month of imprisonment, because, construing the appeal waiver

“narrowly” and “strictly against the Government,” Oladimeji, 463 F.3d at 157 (internal

quotation marks omitted), we conclude that the appellate waiver in Tourloukis’s plea

agreement does not unambiguously preclude Tourloukis from challenging the home

confinement condition imposed on a portion of his term of supervised release.

       Oladimeji is directly on point. There, we construed a defendant’s agreement not to

appeal or challenge his “conviction or sentence . . . in the event that the Court imposes a

total term of imprisonment of 114 months . . . or below” to permit the defendant to appeal



       3
          Tourloukis also cites our decision in United States v. Leaphart, 98 F.3d 41 (2d
Cir. 1996), as suggesting that fifty months of imprisonment plus six months of home
confinement equals fifty-six months of imprisonment. Leaphart, however, does not
directly address whether each month of home confinement is equivalent to a month of
imprisonment. In Leaphart, the magistrate judge imposed the statutory maximum term of
imprisonment, but it was unclear whether the judge had also intended to impose a term of
home confinement. After reviewing the transcript of the sentencing hearing and the terms
of the judgment and commitment order, we concluded that the magistrate judge had not
imposed such a term of home confinement. As one support for our conclusion, we noted
that the sentencing guidelines permit home detention as a condition of supervised release
“only as a substitute for imprisonment.” Id. at 43 (citing U.S.S.G. § 5B1.4(b)(20)).
Because the magistrate judge had imposed the “maximum possible term of imprisonment
. . . she could not also sentence [the defendant] to home detention.” Id. Under the
circumstances, there was no additional period of imprisonment for which home detention
could serve as a substitute. We therefore had no occasion to address whether each month
of home confinement should be seen as equivalent to a month, or perhaps some lesser
period, of incarceration.

                                             5
the restitution order. Id. at 153. We explained that although the restitution order was

“[w]ithout doubt” a component of defendant’s sentence, it was not “self-evident” that the

plea agreement, which focused only on defendant’s term of imprisonment, was intended

to waive appellate review of any restitution that the court might order. Id. at 156.

Although the word “sentence” can be broadly construed to include a term of supervised

release, as well as a term of imprisonment, it is also commonly used to refer simply to the

latter. Elsewhere in the instant plea agreement, for instance, the government agreed to

“take no position concerning where within the Guidelines range determined by the Court

the sentence should fall.” J. Appx. 19 (emphasis supplied). The use of the word sentence

in that provision suggests that the parties intended the narrower definition of the word as

referring to the term of imprisonment rather than all components of the judgment.

Because Tourloukis’s challenge to the home confinement condition is not unambiguously

precluded by the appellate waiver in his plea agreement, we will consider whether that

component of his sentence was lawful.

II.    The Home Confinement Condition

       “We review all sentences using a deferential abuse-of-discretion standard.” United

States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010). Additionally, because Tourloukis did

not object to the home confinement condition during sentencing, we review the district

court’s imposition of that condition for plain error. See United States v. Doe, 741 F.3d

359, 364 (2d Cir. 2013). In reviewing a sentence for procedural unreasonableness, the

court considers whether the district court committed a procedural error “such as failing to


                                             6
calculate (or improperly calculating the Guidelines range), treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Dorvee, 616 F.3d at 179.

       Tourloukis argues that the imposition of a home confinement condition for six

months, in addition to fifty months of imprisonment, violated the parsimony clause of

§ 3553(a), which instructs a court to impose a sentence that is “sufficient, but not greater

than necessary” to comply with the purposes of sentencing. 18 U.S.C. § 3553(a).

Tourloukis does not ask us to decide that the six additional months of home confinement

made the sentence substantively unreasonable because it was not in fact necessary for any

legitimate purpose of sentencing. Rather, he contends that the district court itself

believed that fifty months’ imprisonment was sufficient to satisfy the purposes of

sentencing, but that it then proceeded to impose what is, in Tourloukis’ view, an effective

term of imprisonment of fifty-six months – a sentence that is, a fortiori, “greater than

necessary” to serve the purposes of sentencing. Similarly, he attributes his sentence to the

district court’s purported unawareness of the fact that, under § 3563(b)(19), home

confinement may be imposed “only as an alternative to incarceration.”

       Tourloukis has failed to demonstrate that the district court plainly erred. Contrary

to Tourloukis’s argument, the district court did not state that fifty months’ imprisonment,

without an additional period of home confinement, was sufficient to comply with the

purposes of sentencing described in § 3553(a). Rather, the district judge, in addition to

                                              7
noting that she had originally considered imposing a sentence at the top of the

recommended guideline range, expressly stated that she viewed “the sentence [she was]

about to impose” – which included the term of imprisonment, the period of supervised

release subject to certain conditions, and the special assessment – as sufficient to satisfy

the goals of sentencing. Furthermore, Tourloukis offers no reason to believe that the

district court was under the misimpression that it could impose the home confinement

condition in any way other than “as an alternative to incarceration.” 18 U.S.C.

§ 3563(b)(19). The statutory maximum term of imprisonment for Tourloukis’s crime is

ten years, 18 U.S.C. § 924(a)(2), and Tourloukis’s Guidelines range was forty-six to

fifty-seven months’ imprisonment. Thus, nothing about Tourloukis’s sentence suggests

that the district court ignored the instruction that the home confinement condition of

supervised release should be imposed “only as an alternative to incarceration.” A

sentence of fifty months in prison, plus six months of home confinement, is plainly a less

restrictive alternative to the entirely lawful sentence of fifty-seven months of

imprisonment that the district court had considered imposing.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




                                              8
