UNITED STATES OF AMERICA v. KEVIN SHWARYK

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United States Court of Appeals, Second Circuit.

UNITED STATES OF AMERICA, Appellee, v. KEVIN SHWARYK, Defendant-Appellant.

16-4239

Decided: December 01, 2017

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

SUMMARY ORDER

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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