16-4262-cr
United States v. Bernard

                                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 2nd day of November, two thousand seventeen.

PRESENT:            JON O. NEWMAN,
                    JOSÉ A. CABRANES,
                                 Circuit Judges,
                    ROBERT N. CHATIGNY,
                                 District Judge.*


UNITED STATES OF AMERICA,

                           Appellee,                          16-4262-cr

                           v.

PEDRO BERNARD,

                           Defendant-Appellant.


FOR APPELLEE:                                             Timothy V. Capozzi, Anna M. Skotko,
                                                          Assistant United States Attorneys, for Joon
                                                          H. Kim, Acting United States Attorney
                                                          for the Southern District of New York,
                                                          New York, NY.



     *
      Judge Robert N. Chatigny, of the United States District Court for the District of Connecticut,
sitting by designation.

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FOR DEFENDANT-APPELLANT:                                      Philip L. Weinstein, Federal Defenders of
                                                              New York, Inc., New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Lewis A. Kaplan, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 21, 2016 judgment of the District Court be
and hereby is AFFIRMED.

        Defendant-appellant Pedro Bernard (“Bernard”) appeals from a December 21, 2016
judgment finding that he admitted to violating the terms of his supervised release, revoking his
supervised release, and sentencing him to 23 months and 20 days in prison. On appeal, Bernard
argues that the revocation proceedings did not conform to Federal Rule of Criminal Procedure 32.11
because the District Court failed explicitly to ask whether he was pleading guilty to violating the
terms of his supervised release. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

        Because Bernard did not raise this objection in the proceedings in the District Court, we
review for plain error. United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013). To carry this
burden, Bernard must show that “(1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the
ordinary case means it affected the outcome of the district court proceedings; and (4) the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v.
Marcus, 560 U.S. 258, 262 (2010) (alteration and internal quotation marks omitted).

        We conclude that the District Court committed no error, much less a plain error. Neither
Federal Rule of Criminal Procedure 32.1 nor due process requires a court explicitly to ask a
defendant “How do you plead?” at a revocation hearing. See United States v. Pelensky, 129 F.3d 63, 68
(2d Cir. 1997) (stating that “most of the fundamental constitutional procedural protections that are
normally applicable to a criminal prosecution are not required for supervised-release proceedings as
a matter of constitutional law” (internal quotation marks omitted)); United States v. Grandia, 18 F.3d
184, 187 (2d Cir. 1994) (rejecting argument that under Rule 11 a district court must specifically ask
defendant “How do you plead?”). In any event, when the District Court asked Bernard whether he


    1
         Federal Rule of Criminal Procedure 32.1(b)(2) provides that, at a revocation hearing, a
defendant “is entitled to: (A) written notice of the alleged violation; (B) disclosure of the evidence
against the person; (C) an opportunity to appear, present evidence, and question any adverse witness
. . . ; (D) notice of the person’s right to retain counsel or to request that counsel be appointed . . . ;
and (E) an opportunity to make a statement and present any information in mitigation.”

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had “pled guilty to specifications 3, 4, and 7,” he responded “Yes.” Also, the Government submitted
for “the parties” a Sentencing Letter stating that he had “entered a plea of guilty to specification
numbers 3, 4, and 7.” Accordingly, the revocation proceedings conformed to Rule 32.1 and the
District Court did not commit any error, “plain” or otherwise.

                                         CONCLUSION

        We have reviewed all of the arguments raised by Bernard on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the December 21, 2016 judgment of the
District Court.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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