UNITED STATES v. BUISSERETH (2021)

United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. Pierre BUISSERETH, aka Pete, Defendant-Appellant.

19-3917

Decided: January 22, 2021

Present: ROBERT A. KATZMANN, MICHAEL H. PARK, STEVEN J. MENASHI, Circuit Judges. For Appellee: Charles N. Rose and Samuel P. Nitze, Assistant United States Attorneys, for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY. For Defendant-Appellant: Edward S. Zas, Assistant Federal Public Defender, Federal Defenders of New York, Inc. Appeals Bureau, New York, NY.

SUMMARY ORDER

Defendant-appellant Pierre Buissereth appeals from a judgment entered on November 19, 2019 in the United States District Court for the Eastern District of New York (Feuerstein, J.), finding him in violation of the conditions of supervised release imposed as part of a prior sentence, and sentencing him to a new term of imprisonment and a new period of supervised release to follow. Specifically, Buissereth challenges the district court's imposition of a risk notification condition of supervised release (“Standard Condition 12”), which provides:

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.

App'x at 49; see also U.S.S.G. § 5D1.3(c)(12). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

“We review de novo questions of law arising from the imposition of a condition of supervised release.” United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010).¹ Although Bussiereth did not raise his challenge below, we decline to apply plain error review because Bussiereth did not have an opportunity to object before the district court. See Fed. R. Crim. P. 51(b).

The defendant argues that the district court's imposition of Standard Condition 12 is unlawful based on United States v. Boles, 914 F.3d 95 (2d Cir.), cert. denied, ––– U.S. ––––, 139 S. Ct. 2659, 204 L.Ed.2d 299 (2019), in which we held that an identically-worded condition of supervised release was “vague and afford[ed] too much discretion to the probation officer.” Id. at 111–12 (citing United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) (per curiam)). The government agrees and “consents to vacatur of th[e] condition and a limited remand to permit the district court to determine (1) whether to impose a notification condition and, if so, (2) to clarify its scope consistent with the relevant holdings of this Court.” Appellee Br. at 2. Accordingly, we vacate Standard Condition 12, and we remand for the district court to consider whether to impose a risk notification condition and, if it imposes such a condition, to clarify its scope such that it is consistent with Boles and Peterson.

For the foregoing reasons, the judgment of the district court is VACATED in part, and the case is REMANDED for further proceedings consistent with this order.

FOOTNOTES

1.   All emphases, internal quotation marks, citations, alterations, and footnotes are omitted unless otherwise indicated.