19-549-cr
United States v. Marshall

                               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 9th day of April, two thousand twenty.

PRESENT:
                   ROBERT A. KATZMANN,
                        Chief Judge,
                   JOSEPH F. BIANCO,
                        Circuit Judge,
                   VICTOR A. BOLDEN,
                        District Judge. *


UNITED STATES OF AMERICA,

                            Appellee,

                   v.                                               19-549-cr

TYRONE D. MARSHALL,

                            Defendant-Appellant.




         *
         Victor A. Bolden, United States District Judge for the District of Connecticut, sitting by
designation.
                                                   1
 For Defendant-Appellant:                            James P. Egan, Assistant Federal Public
                                                     Defender, for Lisa A. Peebles, Federal Public
                                                     Defender, Syracuse, NY.

 For Appellee:                                       Michael S. Barnett, Paul D. Silver, Assistant
                                                     United States Attorneys, for Grant C. Jaquith,
                                                     United States Attorney for the Northern
                                                     District of New York, Albany, NY.


       Appeal from a judgment entered December 13, 2018 in the United States District Court

for the Northern District of New York (D’Agostino, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Tyrone D. Marshall appeals his sentence insofar as it imposed upon

him a special condition of supervised release that prohibits contact with criminal gang members.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

        Marshall was indicted on one count of conspiracy to distribute cocaine, in violation of 21

U.S.C. § 846, and several counts of distributing cocaine, heroin, and fentanyl, in violation of 21

U.S.C. § 841(a)(1). The parties reached an agreement whereby Marshall would plead guilty to

the conspiracy count in exchange for dismissal of the remaining counts and a recommended

sentence of 92 months’ imprisonment and six years of supervised release. The district court

ultimately imposed the agreed-upon sentence. The court also imposed several conditions of

supervised release recommended by the Pre-Sentence Report (“PSR”), including one directing

Marshall not to “associate with any member, associate or prospect of any criminal gang, club or

organization.” App’x 73, 80.




                                                 2
        Marshall’s principal contention on appeal is that this condition is impermissibly vague. 1

We disagree. In reviewing the imposition of a condition of supervised release, “we review for

plain error where, as here, the defendant had advance notice of the challenged condition and

failed to object during sentencing.” United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019) (per

curiam); United States v. Dupes, 513 F.3d 338, 343 n.2 (2d Cir. 2008) (explaining that a PSR

recommendation offers adequate advance notice of a condition to warrant plain error review if

the defendant fails to object). 2 “To establish plain error, a defendant must demonstrate: (1) error,

(2) that is plain, and (3) that affects substantial rights. If all three conditions are met, we will then

exercise our discretion to rectify this forfeited error only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Bleau, 930 F.3d at 39.

        “Due process requires that the conditions of supervised release be sufficiently clear to

give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so

that he may act accordingly.” United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010) (per

curiam). “A condition of supervised release is unconstitutional if it is so vague that men of

common intelligence must necessarily guess at its meaning and differ as to its application.”

United States v. MacMillen, 544 F.3d 71, 76 (2d Cir. 2008). However, conditions need not be

clear beyond any possible dispute; “[t]hey may provide the defendant sufficient notice of what

conduct is prohibited even if they are not precise to the point of pedantry.” Id.




        1
         Although judgment was entered on December 13, 2018, Marshall did not file a notice of
appeal until February 26, 2019. The time limits imposed by Federal Rule of Appellate Procedure
4(b) are not jurisdictional, however, see United States v. Frias, 521 F.3d 229, 233 (2d Cir. 2008),
and the government has expressly waived any timeliness objection.
        2
          Unless otherwise indicated, case quotations omit all internal quotation marks,
alterations, citations, and footnotes.
                                                   3
        We conclude that a person of ordinary intelligence would understand what is meant by

“criminal gang, club or organization.” In Green, we rejected a vagueness challenge against a

condition that prohibited association with members of any “criminal street gang.” 618 F.3d at

123. In doing so, we noted that the term “is cabined by a clear statutory definition that would

permit Green to comply with the condition and permit officers to consistently enforce the

condition.” Id.; see also 18 U.S.C. § 521(a) (defining “criminal street gang”). Marshall correctly

notes that there is no analogous statutory definition of “criminal gang.” However, we have never

held that a term is impermissibly vague simply because it lacks a statutory definition. Cf. United

States v. Soltero, 510 F.3d 858, 866 n.8 (9th Cir. 2007) (per curiam) (noting statutory definition

of “criminal street gang,” but finding it not “crucial” to holding that term was not

unconstitutionally vague). Here, the only reasonable understanding of the challenged condition is

that it prohibits association with groups engaged in regular criminal activity. 3 Cf. United States v.

Washington, 893 F.3d 1076, 1081 (8th Cir. 2018) (concluding that prohibition on associating

with “any gang” was unconstitutionally vague, in part because “gangs are not necessarily tied to

criminal activity”). Although he claims the condition is vague, Marshall has not suggested any

alternative interpretation. And even if he had identified some arguable ambiguity, any alleged

error was at least not plain.

        We further reject Marshall’s argument that it is unclear whether the use of the adjective

“criminal” in the condition applies only to “gang” or to the entire list. Typically, “a modifier at

the beginning . . . of a series of terms modifies all the terms.” United States v. Lockhart, 749 F.3d




        3
         Although the condition at issue does not specify any particular mens rea, we assume, as
we did in Green, that the condition complies with “constitutionally required limitations on the
breadth of ‘association,’ including that the prohibition only limits association with gang
members known to the probationer, and excludes incidental contacts.” 618 F.3d at 123.
                                                  4
148, 152 (2d Cir. 2014), aff’d, 136 S. Ct. 958 (2016). Moreover, as a matter of common sense, it

is implausible that the district court intended to forbid Marshall from associating with any

member of any club or organization.

       Finally, we reject Marshall’s contention that the condition was not reasonably necessary.

Marshall admitted to past membership in the “Sex Money Murder Gang” during an April 2017

interview with the FBI. Although Marshall subsequently denied gang membership, “[a]

condition barring contact with an organization may be substantively reasonable even if the

defendant denies membership.” United States v. Evans, 883 F.3d 1154, 1161 (9th Cir. 2018). We

cannot say that the condition is so clearly unnecessary that its imposition was plain error.

       Accordingly, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:

                                              Catherine O’Hagan Wolfe, Clerk




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