17-2358
   United States of America v. Sanchez

                     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 ASUMMARY ORDER@).     A
PARTY CITING TO 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 19th day of July, two thousand eighteen.

   PRESENT:
            DENNIS JACOBS,
            REENA RAGGI,
            PETER W. HALL,
                 Circuit Judges.
   _____________________________________

   UNITED STATES OF AMERICA,
            Appellee,

              -v.-                                    17-2358

   ERICK SANCHEZ,
            Defendant-Appellant,

   PABLO MARIZAN,
            Defendant.
   __________________________________

   FOR DEFENDANT-APPELLANT:      Daniel Habib, Federal Defenders
                                 of New York, Inc., New York, NY.


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FOR APPELLEE:              Michael Krouse and Michael D.
                           Maimin, Assistant United States
                           Attorneys, for Geoffrey S.
                           Berman, United States Attorney
                           for the Southern District of New
                           York, New York, NY.

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

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is
AFFIRMED.

     Erick Sanchez appeals from a judgement of the United
States District Court for the Southern District of New York
(Sullivan, J.) revoking his term of supervised release and
sentencing him to two years’ imprisonment, as well as an
additional year of supervised release with the special
condition of a curfew from 9:00 p.m. to 7:00 a.m. Sanchez
challenges only the curfew component of the revocation
sentence. Although Sanchez objected to a home detention
condition initially contemplated (but not imposed) by the
district court, he did not specifically object to the
imposition of a curfew, despite the district court’s
mentioning that condition during the sentencing hearing and
later soliciting the government’s view as to its
permissibility during post-hearing briefing. Because we
conclude that Sanchez had the opportunity but did not raise
a curfew challenge below, our review is for plain error.
See United States v. Dupes, 

, 343 (2d Cir.
2008). Applying that standard of review, we conclude that
Sanchez is not entitled to relief.1 We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.


    1 Even if we determined that the circumstances giving
rise to this appeal warranted application of “a ‘relaxed’
form of plain error review,” United States v. Matta, 

, 121 (2d Cir. 2015), we would still conclude that
Sanchez is not entitled to relief.

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     Sanchez’s revocation sentence arose from his earlier
sentence for conspiracy to commit access device fraud. See
18 U.S.C. § 1029(b)(2). Sanchez pleaded guilty to that
offense and was sentenced (by the same judge who imposed
the revocation sentence) to 30 months’ imprisonment, plus
three years’ supervised release. As a condition of that
supervised release, Sanchez was required to “not commit
another . . . crime.” App’x at 24. The district court
found (and Sanchez does not contest on appeal) that Sanchez
committed at least ten additional crimes while on
supervised release. The revocation sentence followed.

     Sanchez concedes that the district court was permitted
to impose the statutory maximum revocation sentence of two
years’ imprisonment and one year of supervised release; he
contends only that the court was precluded from
supplementing that sentence with the special condition of a
curfew. Sanchez argues that the curfew constitutes a
condition requiring him to “remain at his place of
residence during nonworking hours,” within the meaning of
18 U.S.C. § 3563(b)(19), and that the statute permits its
imposition “only as an alternative to incarceration.”
Relying on our observation in United States v. Leaphart, 

(2d Cir. 1996), that a district court imposing the
maximum possible term of imprisonment “[can]not also
sentence [a defendant] to home detention . . . during his
term of supervised release,” 

Sanchez urges error
by the district court in ordering a curfew after imposing
the two-year maximum incarceratory sentence.

     This court has never held that § 3563(b)(19)
encompasses a curfew condition, nor has it ever recognized
home detention and a curfew as “equivalent” for sentencing
purposes. United States v. Blackwell, 651 F. App’x 8, 9
(2d Cir. 2016) (summary order). On the contrary, we have
noted that the Sentencing Guidelines “explicitly
distinguish between the two,” 

§
5D1.3(e)(2) & (5)), and no superseding statute or precedent
equates them. On plain error review, for an error to be
“plain,” it must, “at a minimum, be clear under current

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law,” United States v. Weintraub, 

, 152 (2d
Cir. 2001) (internal quotation marks omitted), and we
“typically will not find such error where the operative
legal question is unsettled, including where there is no
binding precedent from the Supreme Court or this Court,”
United States v. Whab, 

, 158 (2d Cir. 2004)
(internal quotation marks omitted). Accordingly, insofar
as Sanchez urges error here, it was not plain and, thus,
the curfew condition stands.

     We have considered Sanchez’s remaining arguments and
find them to be without merit. For the foregoing reasons,
we AFFIRM the judgment of the district court.

                  FOR THE COURT:
                  Catherine O’Hagan Wolfe, Clerk of Court




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