18‐1019
United States v. Parkins



                           United States Court of Appeals
                               for the Second Circuit
                                       AUGUST TERM 2018
                                           No. 18‐1019



                                   UNITED STATES OF AMERICA,
                                            Appellee,

                                                v.

                                         NIKOS PARKINS,
                                       Defendant‐Appellant.



                                     ARGUED: JUNE 24, 2019
                                    DECIDED: AUGUST 19, 2019

        Before:            JACOBS, LOHIER, PARK, Circuit Judges.

        Nikos Parkins appeals from a sentence of the United States District Court
for the Southern District of New York (Berman, J.) imposing a condition of
supervised release that requires him to perform 300 hours of community service
a year over his term of supervision for a total of 695 hours. We conclude that the
challenged condition is not reasonably related to any of the relevant sentencing
factors, is inconsistent with the pertinent Guidelines policy statements, and
involves a greater deprivation of liberty than is reasonably needed to achieve the
purposes of sentencing. Accordingly, we vacate the condition and remand for
resentencing.
                                       DANIEL HABIB, FEDERAL DEFENDERS OF NEW
                                       YORK, INC., NEW YORK, NY, FOR THE
                                       DEFENDANT‐APPELLANT.


                                       DAVID ABRAMOWICZ, ASSISTANT UNITED
                                       STATES ATTORNEY (DANIEL B. TEHRANI,
                                       ASSISTANT UNITED STATES ATTORNEY, ON
                                       THE BRIEF), FOR GEOFFREY S. BERMAN,
                                       UNITED STATES ATTORNEY FOR THE
                                       SOUTHERN DISTRICT OF NEW YORK, NEW
                                       YORK, NY, FOR THE APPELLEE.

DENNIS JACOBS, Circuit Judge:

      Nikos Parkins appeals, for the second time, from a sentence of the United

States District Court for the Southern District of New York (Berman, J.) imposing

a condition of supervised release that requires him to perform 300 hours of

community service a year over the term of his supervision. Parkins argues that

the condition constitutes an abuse of discretion because: it is not reasonably

related to any of the applicable purposes of sentencing listed at 18 U.S.C.

§ 3553(a); it is inconsistent with the pertinent policy statement issued by the

Sentencing Commission; and it involves a greater deprivation of liberty than

needed to effectuate the goals of sentencing.




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      We conclude that the pertinent policy statement issued by the Sentencing

Commission must be read to advise that courts should generally refrain from

imposing more than a total of 400 hours of community service as a condition of

supervised release. We further conclude that Parkins’s condition of supervised

release requiring 300 hours a year is not reasonably related to any of the relevant

sentencing factors and involves a greater deprivation of liberty than is

reasonably needed to achieve the purposes of sentencing. Accordingly, we

vacate the condition and remand for resentencing.




                                         I.

      This appeal arises from Parkins’s conviction for his role in two different

fraud schemes. First, in 2009 or 2010, Parkins conspired to stage automobile

accidents and defraud insurers into paying out invalid claims. To effectuate the

scheme, Parkins played the victim, and attended physical therapy sessions five

days a week for three months. Second, in 2012, Parkins conspired to defraud

banks by reporting his debit cards as lost or stolen while his coconspirators used

his account to deposit fraudulent checks and withdraw the funds. Parkins

participated in a similar scheme again in 2013.



                                         3
      Parkins waived indictment and pleaded guilty to one count of conspiracy

to commit bank fraud and one count of conspiracy to commit health care fraud,

both in violation of 18 U.S.C. § 1349. On February 15, 2017, Parkins was

sentenced to time served and a three‐year term of supervised release with a

condition that he perform 300 hours of community service for each year of

supervision.

      Parkins’s prior appeal argued that 900 hours of community service over 3

years violated 18 U.S.C. § 3583(d) because: (1) it was not reasonably related to

any of the applicable factors set out in 18 U.S.C. § 3553, (2) it involved a greater

deprivation of liberty than reasonably necessary to afford adequate deterrence,

and (3) it was inconsistent with Application Note 1 to Section 5F1.3 of the

Sentencing Guidelines. The government conceded that the community service

term set forth by the district court lacked an adequate non‐punitive explanation,

and moved to vacate the condition. This court vacated the community service

condition of supervised release and remanded, explaining that we were unable

to determine whether the community service term was warranted in light of the

relevant statutory factors and Guideline policy statement.




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      The district court thereafter issued a written decision addressing the

community service condition in light of the § 3583(d) factors, and stated its

intention to re‐impose the 300‐hour‐per‐year condition for the remainder of

Parkins’s term of supervised release. At resentencing on March 27, 2018, the

district court imposed the same condition of supervised release, which, at that

point, required 575 additional hours of community service for the remaining 23

months of supervised release in addition to the 120 hours Parkins had already

served, for a total of 695 hours. Parkins now appeals this second sentence for

substantially the same reasons he appealed the first.




                                        II.

      We review the propriety of a condition of supervised release for abuse of

discretion. United States v. Brown, 402 F.3d 133, 136 (2d Cir. 2005).

      Special conditions of supervised release must be “reasonably related” to:

(A) “the nature and circumstances of the offense and the history and

characteristics of the defendant”; (B) “the need for the sentence imposed to afford

adequate deterrence to criminal conduct”; (C) the protection of the public; and

(D) the rehabilitative and medical care needs of the defendant. U.S.S.G.



                                         5
§ 5D1.3(b)(1); accord 18 U.S.C. §§ 3553(a) & 3583(d)(1). “[A] condition may be

imposed if it is reasonably related to any one or more of the specified factors.”

United States v. Amer, 110 F.3d 873, 883 (2d Cir. 1997) (internal quotation marks

omitted). A special condition must also involve “no greater deprivation of

liberty than is reasonably necessary for the purposes” of sentencing. 18 U.S.C.

§ 3583(d)(2).




                                         III.

      Conditions of supervised release must be “consistent with any pertinent

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3).

Section 5F1.3 of the Sentencing Guidelines allows for the imposition of a

condition of supervised release requiring community service. Application Note

1 to that Section provides:

                Community service generally should not be imposed in excess
                of 400 hours. Longer terms of community service impose
                heavy administrative burdens relating to the selection of
                suitable placements and the monitoring of attendance.

The first sentence of that Note, providing that community service in excess of 400

hours generally should not be imposed, “interpret[s] a guideline or explain[s]

how it is to be applied,” Stinson v. United States, 508 U.S. 36, 41 (1993) (quoting


                                          6
U.S.S.G. § 1B1.7), and is therefore binding, see United States v. Sash, 396 F.3d 515,

523 (2d Cir. 2005). The parties disagree about whether the 400‐hour limitation is

per year or over the full term of supervised release.

       “[W]here there is ambiguity in a criminal statute, doubts are resolved in

favor of the defendant.” United States v. Bass, 404 U.S. 336, 348 (1971). That

principle‐‐the rule of lenity‐‐applies to the Sentencing Guidelines. See United

States v. Simpson, 319 F.3d 81, 86 (2d Cir. 2002).

      Nothing in the text of Application Note 1 tells us whether it applies to the

entire term of supervised release. The Note does not mention an annual cap, so

one might presume that the 400‐hour limit applies to the total term of supervised

release, but that is by no means free from doubt; in any event, the same result

obtains whether or not we consider the sentence to be ambiguous. We therefore

interpret the provision in Parkins’s favor and assume that it is a general limit of

400 hours of community service for a supervisee’s entire term of supervised

release, rather than a yearly cap. Of course, this does not resolve the issue, since

the Application Note’s proscription of more than 400 hours of supervised release,

by its own terms, applies only “generally.” Nonetheless, the Application Note

grounds the discussion that follows.



                                          7
                                          IV.

      The substance of Parkins’s claim is a challenge to the imposition of a term

of supervised release requiring a total of 695 hours of community service.

Accordingly, we consider the district court’s written decision, which considered

each of the relevant § 3553(a) factors.

      As to “the nature and circumstances of the offense and the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), the district court

observed that Parkins lives with his parents, has a young daughter, works as a

driver for Uber and other similar companies, and “was convicted of two serious

crimes of fraud which adversely impacted the community at large.” App’x 235.

But the court did not explain how Parkins’s particular circumstances‐‐his

criminal history, his cooperation, the nature of his offense‐‐reasonably related to

the need for community service.

      As to “the need for the sentence imposed to afford adequate deterrence to

criminal conduct,” 18 U.S.C. § 3553(a)(2)(B), the district court again cited the

impact of Parkins’s crime on the community, and stated that “[c]ommunity

service is crucial in this case, in the Court’s view, to help provide both specific



                                          8
and general deterrence,” citing a law review article and a sentencing by District

Judge Harold Baer, Jr., imposing 200 hours of community service. App’x 236.

The district court did not explain how community service would deter crime, nor

is that obvious in the present context.

      As to “the need to protect the public from further crimes of the defendant,”

18 U.S.C. § 3553(a)(2)(C), the district court noted that “the public at large was

obviously negatively affected by Mr. Parkins’[s] illegal actions and Parkins’[s] . . .

sentence[] should help protect the public going forward.” App’x 237.

      And as to the provision of “needed educational or vocational training,” 18

U.S.C. § 3553(a)(2)(D), the district court observed that Parkins’s community

service is performed at St. John’s Bread & Life, which “feeds the needy and

provides tax preparation, medical care, counseling, and legal services to those in

need.” App’x 237. The court added that Parkins’s “work schedule appears

flexible,” id. at 237, and that the community service obligation “requires

responsibility, discipline, and prioritization on Mr. Parkins’[s] part,” id. at 238.

      At the March 27 sentencing, the district court incorporated its March 22

written order and expressed its interest in “the values and advantages of

community service,” especially for juveniles. Id. at 242. Notably, the court also



                                           9
rejected Parkins’s contention that the community service interfered with his

ability to work: “Mr. Parkins’[s] financial circumstances has at least as much to

do with the nature of his job itself, it would appear, or the nature of Mr. Parkins

and how he does the job.” Id. at 245. The court reiterated that community

service can teach “skills like prioritization, organization, punctuality, [and] self‐

management,” id., and that, in addition to serving meals, the service site helps

people prepare their taxes, among other things.

                                    *      *     *

      This record provides little basis to conclude that Parkins’s conviction may

be distinguished from the generality of cases wherein courts should not impose

community service in excess of 400 hours. The district court’s reasoning is, for

the most part, sound but generic, and there is insufficient nexus between the 695‐

hour community service condition and the applicable § 3553(a) factors. While

community service can provide educational or vocational training, Parkins’s

service consists primarily, if not entirely, of distributing uncooked meals in the

St. John’s food pantry. In any event, the district court did not find that Parkins

was in need of any of the training that community service might provide, and




                                          10
there is no reason on this record to believe that 695 hours of community service is

required for Parkins to achieve the benefit such service offers.

      The government argues that the community service will keep Parkins

occupied in productive activities, thus preventing him from returning to the

“negative influences” that “led him astray.” Appellee Br. 24. But this argument

lacks a limiting principle that would allow an evaluation of how much

community service is “greater than necessary” to keep Parkins off the street.

And Parkins’s job driving for Uber seems at least equally suited to keeping him

occupied, and confers the not‐incidental benefit of allowing him to provide for

his young daughter. Moreover, it appears evident that, as Parkins argues, his

productive occupation is disrupted by the amount of community service he must

perform.

      The government focuses on the second sentence of Application Note 1,

which warns of the administrative burden associated with longer terms of

community service. The government argues that Note 1 does not bear on this

case because the district court found that the 695‐hour condition imposes no

“heavy administrative burden” on the Probation Office. App’x 253. However,

that sentence “provide[s] background information, including factors considered



                                         11
in promulgating the guideline or reasons underlying promulgation of the

guideline,” Stinson, 508 U.S. at 41 (quoting U.S.S.G. § 1B1.7), and is therefore not

binding in the same way as the first sentence, see Sash, 396 F.3d at 523 (“A

Guideline may apply in situations not contemplated by the background

commentary to the Guideline.”). That is, the second sentence does not qualify

the first; it provides background information to aid courts’ application of the

Note. Specifically, the second sentence of Application Note 1 reflects the

Sentencing Commission’s determination that terms of community service in

excess of 400 hours do, in fact, impose heavy administrative burdens‐‐it does not

invite district courts to impose more than 400 hours of community service based

on a finding that a heavy administrative burden is unlikely. Therefore, the

district court’s conclusion that Parkins’s 695‐hour condition does not impose a

heavy administrative burden was beside the point.

      Indeed, the record reflects that the Probation Office did undertake an

incremental administrative burden by finding a second community service site

for Parkins to perform community service. It is also unclear whether the

additional site will minimize the burden on the Probation Office by tracking

Parkins’s hours (as St. John’s does). See App’x 249–50.



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      In light of Application Note 1’s general proscription of more than 400

hours of community service and the district court’s inadequate, individualized

justification for a higher amount, the imposition of a total of 695 hours of

community service was an abuse of discretion.

      For the foregoing reasons, we VACATE the condition of supervised

release requiring 300 hours of community service per year and REMAND for re‐

sentencing.




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