18-1590(L)
United States v. John Doe #1
                               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
27th day of April, two thousand twenty.

Present:        ROSEMARY S. POOLER,
                GERARD E. LYNCH,
                            Circuit Judges,
                JESSE M. FURMAN,
                            Judge. 1

_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                         v.                                                18-1590, 18-1689

JOHN DOE #1, JOHN DOE #2,

                        Defendants-Appellants,
_____________________________________________________

Appearing for Appellant Doe #1:         Michelle Anderson Barth, Burlington, VT.

Appearing for Appellant Doe #2:         Clinton W. Calhoun III, Calhoun & Lawrence LLP, White
                                        Plains, N.Y.




1
  Judge Jesse M. Furman, United States District Court for the Southern District of New York,
sitting by designation.
Appearing for Appellee:               Emil J. Bove, III, Assistant United States Attorney (Won S.
                                      Shin, Assistant United States Attorney, on the brief), for
                                      Geoffrey S. Berman, United States Attorney for the
                                      Southern District of New York, New York, N.Y.

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

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in
part and VACATED and REMANDED in part.

         Appellants John Doe #1 and John Doe #2 appeal from the May 15, 2018 judgments
entered in the United States District Court for the Southern District of New York (Crotty, J.)
sentencing Appellants principally to 144 months’ imprisonment followed by five years’
supervised release. Doe #1 was also fined $1,020,000 and Doe #2 was fined $390,000. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

        On appeal, Appellants challenge the imposition of their fines, the substantive
reasonableness of their sentences, and two supervised release conditions. Doe #2 also challenges
the district court’s conclusion that he was ineligible for safety valve relief pursuant to 18 U.S.C.
§ 3553(f) and brings an ineffective assistance of counsel claim. We address each issue in turn.

        District courts must consider a defendant’s income, earning capacity, and financial
resources when imposing a fine. 18 U.S.C. § 3572(a)(1); see United States v. Corace, 146 F.3d
51, 55-56 (2d Cir. 1998) (describing “the principles governing imposition of a fine”). The burden
is on the defendant to show indigency, United States v. Salameh, 261 F.3d 271, 276 (2d Cir.
2001), but it may be satisfied either by independent evidence or by reference to the Presentence
Report (“PSR”), United States v. Thompson, 227 F.3d 43, 45 (2d Cir. 2000). When the grounds
for the district court’s finding that a defendant could pay are unclear from the record, we may
remand for “specific findings regarding [the defendant’s] ability to pay.” United States v.
Aregbeyen, 251 F.3d 337, 339 (2d Cir. 2001).

        We conclude that the district court erred in failing to make clear findings as to
Appellants’ abilities to pay the fines assessed. It is not clear from the record that Appellants
could pay the fines, either presently or based on “evidence in the record that [they] will have the
earning capacity to pay the fine after release from prison.” Aregbeyen, 251 F.3d at 339 (quoting
Corace, 146 F.3d at 56). The PSRs for the Appellants indicate their lack of financial resources,
and they were represented by appointed counsel at the proceedings below, which further shows
their inability to pay the fines. Id. at 338-39. Contrary to the Government’s assertion, without
further explanation, the Appellants’ past receipt of funds over a period of many years does not
necessarily establish a present ability to pay. Because the Appellants have met their burden in
showing indigency, we remand to the district court to make specific findings regarding
Appellants’ present ability to pay.




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       We turn next to Appellants’ argument that their sentences were substantively
unreasonable. A sentence is substantively unreasonable when it is manifestly unjust or when it
shocks the conscience. United States v. Mumuni, 946 F.3d 97, 107 (2d Cir. 2019).

         We cannot say that the sentences here are substantively unreasonable. The district court
acknowledged the difficulty of its decision and noted both the Appellants’ cooperation and the
seriousness of their crimes. After considering the relevant 18 U.S.C. § 3553(a) factors, the
district court varied downwards significantly for each Appellant from the sentence recommended
by the advisory Sentencing Guidelines. We do not believe the resultant sentences shock the
conscience in light of the extent and nature of the crimes. Although Appellants claim that the
district court weighed their crimes more heavily than their cooperation, we will not “second
guess the weight (or lack thereof) that the judge accorded to a given factor or to a specific
argument made pursuant to that factor” when reviewing sentences for substantive
reasonableness. See United States v. Degroate, 940 F.3d 167, 178 (2d Cir. 2019) (internal
quotation marks and citation omitted). We accordingly affirm the sentences as substantively
reasonable.

         Appellants also challenge two supervised release conditions. The first condition at issue
is the risk notification condition. Following our decision in United States v. Boles, 914 F.3d 95
(2d Cir. 2019), the United States District Court for the Southern District of New York
(McMahon, C.J.) issued a district-wide standing order vacating the original default risk
notification condition that had been imposed on Appellants. The new default risk notification
condition is now a Special Condition that is imposed only if the probation officer recommends
doing so to the district court, and the district court accepts the recommendation. Here, the new
Special Condition has not yet been applied to either Appellant. Because of that, Appellants’
claims relating to this condition are moot. See United States v. Johnson, 446 F.3d 272, 276 (2d
Cir. 2006); United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999). To the extent that
Appellants challenge the new Special Condition, that issue is not yet ripe for judicial review. See,
e.g., United States v. Cabral, 926 F.3d 687, 694 (10th Cir. 2019).

        The second challenged condition is the communications prohibition, which prevents
communicating or interacting with someone known to be a convicted felon without first getting
the permission of the probation officer. Appellants argue the condition is vague, overbroad, and
infringes on their substantive due process rights to familial association.

          Because the Appellants did not object to the condition below, we review only for plain
error. “Under the plain error standard, an appellant must demonstrate (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; and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Balde, 943 F.3d 73, 96 (2d Cir. 2019)
(internal quotation marks and citation omitted). An error affects a defendant’s substantial rights
if it is prejudicial and affected the outcome of the district court proceedings. United States v.
Gore, 154 F.3d 34, 47 (2d Cir. 1998).

      We first address the vagueness and overbreadth arguments. We conclude that, even
assuming an error was made, it was not clear or obvious enough to satisfy the plain error



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standard. While Appellants argue that it is unclear whether the condition at issue is violated by
de minimis contact like having lunch with coworkers who are felons or making small talk with
them, Supreme Court precedent makes clear that such conditions excuse “incidental contacts
between ex-convicts in the course of work on a legitimate job for a common employer” from
restrictions on association. Arciniega v. Freeman, 404 U.S. 4, 4 (1971). We have also upheld
other conditions on similar grounds in the face of vagueness challenges. See, e.g., United States
v. Johnson, 446 F.3d 272, 281 (2d Cir. 2006); Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.
1972).

         With respect to Appellants’ substantive due process challenge, although we have vacated
restrictions on contact with family members in some contexts, see, e.g., United States v. Myers,
426 F.3d 337 (2d Cir. 2005), Appellants cite no case in which such a restriction imposed on
relatives convicted as co-conspirators has been struck down. Accordingly, we do not find plain
error in the imposition of the communication condition on the facts of this case.

        Doe #2 brings two additional arguments. He first argues that the district court erred in
concluding that he was ineligible for safety valve relief. Safety valve relief is available pursuant
to 18 U.S.C. § 3553(f) when certain conditions are met, only one of which is relevant here: “the
defendant provided the government, not later than the sentencing hearing, with all information
and evidence concerning the offense known to him.” United States v. Holguin, 436 F.3d 111, 115
(2d Cir. 2006).

        The district court concluded that Doe #2 did not meet this condition based on a translated
transcript of a recorded jail call that it interpreted as discussing an undisclosed drug transaction.
Although Doe #2 argues that the translation was not entirely accurate and that the conversation
was discussing a car sale, the district court’s interpretation was not clearly erroneous. The
recordings were played for Doe #1 during his cross-examination in a related trial, and Doe #1
confirmed that the individual was discussing pills. Given that testimony, it was not clearly
erroneous for the district court to interpret the transcript as a coded conversation about a drug
transaction, rather than a car sale. We accordingly affirm its conclusion on safety valve relief.

       Doe #2’s final argument is that his counsel at sentencing was constitutionally ineffective.
We have “a baseline aversion to resolving ineffectiveness claims on direct review.” United States
v. Khedr, 343 F.3d 96, 99-100 (2d Cir. 2003). While we have nonetheless addressed these claims
when their resolution is beyond a doubt, id., we do not have a fully developed record in the case
before us on this issue. As such, we decline to review Doe #2’s ineffective assistance of counsel
claim on direct appeal.

        We have considered the remainder of Appellants’ arguments and find them to be without
merit. Accordingly, the order of the district court hereby is VACATED and REMANDED in part
and AFFIRMED in part.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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