16-4239
United States v. Shwaryk
                                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
1st day of December, two thousand seventeen.

Present:    ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                           v.                                                  16-4239

KEVIN SHWARYK,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:          Melissa A. Tuohey, Assistant Federal Public Defender (Lisa
                                  Peebles, Federal Public Defender, on the brief), Syracuse, N.Y.

Appearing for Appellee:           Steven D. Clymer, Assistant United States Attorney, for Grant C.
                                  Jaquith, Acting United States Attorney for the Northern District of
                                  New York, Syracuse, N.Y.

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

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
         Kevin Shwaryk appeals from the nine-month term of imprisonment and eight-year term
of supervised release imposed by the United States District Court for the Northern District of
New York (Mordue, J.) following revocation of his term of supervised release. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        Shwaryk was released from prison on September 7, 2017, rendering arguments regarding
the length of his term of imprisonment moot. See United States v. Probber, 170 F.3d 345, 347
(2d Cir. 1999) (holding completion of term of imprisonment prior to appeal being heard renders
appeal from sentence of imprisonment moot). Shwaryk also challenges his term of supervised
release. As no objection was made at sentencing, the procedural unreasonableness of his
sentence of supervised release is reviewed for plain error. See United States v. Villafuerte, 502
F.3d 204, 211 (2d Cir. 2007). We have not decided whether plain error review applies to
unpreserved challenges to a sentence’s substantive reasonableness and, for purposes of this
appeal, we assume that it does not and that the abuse of discretion standard applies.

        Shwaryk argues his sentence was procedurally unreasonable because the district court did
not state, in open court, the reasons for its sentence. He argues that the district court only spoke
about his failure to produce his cell phone in June 2016, but noted that Shwaryk produced the
phone for inspection after the district court ordered him to comply with probation office
directives. He also argues that his sentence is substantively unreasonable, because the court
overly relied on the failure to turn over his cell phone.

         When sentencing after the revocation of supervised release, a district court's compliance
with the sentencing explanation requirements of 18 U.S.C. § 3553(c) “can be minimal.” United
States v. Cassesse, 685 F.3d 186, 192 (2d Cir. 2012), as amended (July 25, 2012). “Section
3553(c) requires no specific formulas or incantations; rather, the length and detail required of a
district court's explanation varies according to the circumstances.” Id. Here, the district court
stated that it could not overlook Shwaryk’s refusal to turn over his cell phone to probation when
first asked, and that Shwaryk had a history of failing to comply with the terms of his supervised
release. The district court’s limited statement sufficed. Moreover, to survive plain error review,
Shwaryk needed to show that any lack of explanation “prejudicially affected his substantial
rights,” United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013). He made no such showing.

       We have considered the remainder of Shwaryk’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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