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United States v. Green

August 13, 2010

UNITED STATES, APPELLEE,
v.
WARREN GREEN, APPELLANT.



SYLLABUS BY THE COURT

Warren Green appeals from a final judgment of the United States District Court for the Northern District of New York (Scullin, J.), imposing a condition on his supervised release from prison that prohibits him from associating with members of criminal street gangs or wearing the colors, tattoos or insignia related to such gangs. We conclude that the portion of the condition prohibiting Green from wearing gang colors or insignia is unconstitutionally vague, VACATE the condition, and REMAND the matter to the district court for further proceedings consistent with this opinion.

Per curiam.

Argued: October 21, 2009

POOLER, KATZMANN, and LIVINGSTON, Circuit Judges.

Warren Green appeals from a final judgment of the United States District Court for the Northern District of New York (Scullin, J.), imposing a condition on his supervised release from prison that prohibits him from associating with members of criminal street gangs or wearing the colors, tattoos or insignia related to such gangs. The only question raised on appeal is whether the judge erred in issuing this condition. We conclude that the portion of the condition prohibiting Green from wearing gang colors or insignia is unconstitutionally vague. Therefore, we vacate the condition and remand to the district court for further proceedings consistent with this opinion.

FACTS

In June, 2001, Green was convicted of conspiracy to possess and distribute crack cocaine and cocaine and sentenced to 121 months' imprisonment. On July 17, 2007, officers at the Ray Brook correctional facility, where Green was serving his sentence, strip-searched Green and discovered marijuana and a homemade weapon. Green was charged pursuant to a two-count indictment in the United States District Court for the Northern District of New York with knowing possession of a weapon in violation of 18 U.S.C. §§ 1791(a)(2) and 1791(b)(3), and possession of marijuana, in violation of 18 U.S.C. §§ 1791(a)(2) and 1791(b)(3).

Green pled guilty to both counts on June 19, 2008.At an oral sentencing proceeding on October 24, 2008, the district court imposed a sentence of 18 months on each count to run concurrently followed by a three year term of supervised release. The judge then imposed a condition of supervised release, stating: "And of course, as a special condition, you're not to associate with any member or associate of the Bloods street gang or any other criminal street gang." This condition was not recommended in Green's pre-sentence report.

Subsequently, in a final written order dated October 28, 2008, the district court elaborated on this special condition of supervised release, adding further terms: "The defendant shall not associate with any member or associate of the Bloods street gang, or any other criminal street gang, in person, by mail (including email), or by telephone. This shall include the wearing of colors, insignia, or obtaining tattoos or burn marks (including branding and scars) relative to these gangs."

Green filed a notice of appeal on November 7, 2008. He is currently incarcerated.

ANALYSIS

I. Standard of Review

Generally, we review conditions of supervised release for abuse of discretion. United States v. Dupes, 513 F.3d 338, 342-43 (2d Cir. 2008). When the defendant does not object to the conditions, however, we review only for plain error. Id. at 343; Fed. R. Crim. P. 52(b). Under plain error review, the court must first find an obvious error that affects substantial rights. Dupes, 513 F.3d at 343. Then, the court may use its discretion to correct the error if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. Green did not object to the conditions of his supervised release.

The sentencing context, however, offers defendants a less rigorous plain error review if defendant lacked sufficient notice of the challenged conditions. United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). As in Sofsky, Green did not have an opportunity to raise a contemporaneous objection to his conditions of supervised release. In Green's case, the full terms of the condition were still unknown at the oral hearing because the condition was not ...


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