18‐2847‐cr
United States v. Rodriguez


                                  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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 21st day of February, two thousand twenty.

PRESENT:            JOHN M. WALKER, JR.,
                    DENNY CHIN,
                    RICHARD J. SULLIVAN,
                                         Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA,
                    Appellee,

                              ‐v‐                                                  18‐2847‐cr

RAYMOND RODRIGUEZ, AKA RAYMOND
ANTHONY RODRIGUEZ, AKA RAYMOND
A. RODRIGUEZ,
                  Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR APPELLEE:                                    OLGA ZVEROVICH, Assistant United
                                                 States Attorney (Daniel B. Tehrani,
                                                 Assistant United States Attorney), for
                                                 Geoffrey S. Berman, United States
                                                 Attorney for the Southern District of
                                                 New York, New York, New York.

FOR DEFENDANT‐APPELLANT:                         DANIEL HABIB, Federal Defenders of
                                                 New York, Inc., New York, New York.



              Appeal from the United States District Court for the Southern District of

New York (Karas, J.).

              UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED IN PART and

VACATED IN PART, and the case is REMANDED for further proceedings consistent

with this order.

              Defendant‐appellant Raymond Rodriguez appeals from a final judgment

entered by the district court on September 25, 2018 sentencing him to 37 monthsʹ

imprisonment and three yearsʹ supervised release for possession of a firearm following

a felony conviction in violation of 18 U.S.C. § 922(g)(1). On appeal, Rodriguez argues

that assault in the second degree under N.Y. Penal Law § 120.05(2) is not a crime of

violence as defined by U.S.S.G. § 4B1.2(a) and therefore his sentence should be reduced.

He also contends ‐‐ and the government agrees ‐‐ that the district court made a clerical

error at sentencing by failing to replace one of his conditions of supervised release. We



                                           ‐2‐
assume the partiesʹ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

1.     Crime of Violence

              In March of 2008, Rodriguez was convicted of assault in the second degree

under N.Y. Penal Law § 120.05(2) and was subsequently sentenced to more than one

year in prison. Rodriguez was released from prison in January of 2012, but he was

given five yearsʹ parole, the terms of which allowed parole officers to search and inspect

his home. On December 5, 2016, state parole officers searched Rodriguezʹs home in

Spring Valley, New York, and they recovered numerous weapons, including an

inoperable gun manufactured outside of New York. Rodriguez was arrested and

charged with possession of a firearm following a felony conviction in violation of 18

U.S.C. § 922(g)(1).


              Rodriguezʹs Presentencing Report concluded that assault in the second

degree under N.Y. Penal Law § 120.05(2) was a crime of violence and recommended 46

monthsʹ imprisonment. In his sentencing letter, Rodriguez argued that second‐degree

assault in New York was not a crime of violence and, therefore, that a sentence of 27

monthsʹ imprisonment was appropriate. Ultimately, the district court disagreed and

sentenced him to 37 monthsʹ imprisonment and three yearsʹ supervised release. This

appeal followed.




                                           ‐3‐
              ʺWe review de novo a district courtʹs determination of whether an offense

is a crime of violence under the Guidelines.ʺ United States v. Moore, 

, 236

(2d Cir. 2019). Recently, this Court determined that assault in the second degree under

N.Y.P.L. § 120.05(2) is categorically a crime of violence under the Force Clause of

U.S.S.G. § 4B1.2. United States v. Tabb, No. 18‐338, 

, at *3 (2d Cir. Feb. 6,

2020). Accordingly, the district court did not err when it applied the crime‐of‐violence

enhancement, and the sentence of 37 monthsʹ imprisonment is AFFIRMED.


2.     Supervised Release Condition


              At sentencing, the district court stated orally that it would suspend the

condition of supervised release requiring Rodriguez to submit to mandatory drug

testing and replace it with a requirement that he participate in an out‐patient drug

treatment program, which could include drug testing. The court, however, made a

clerical error when it completed the written judgment and failed to suspend the

mandatory drug‐testing condition. Because it is settled that the oral sentence controls,

United States v. Carr, 

, 109 (2d Cir. 2009), we REMAND to the district court

for the limited purpose of correcting Rodriguezʹs written judgment.


              We have considered Rodriguezʹs remaining arguments and conclude they

are without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED, except that the mandatory drug‐testing condition of supervised release is



                                            ‐4‐
VACATED, and the case is REMANDED for further proceedings consistent with this

order.

                                     FOR THE COURT:
                                     Catherine OʹHagan Wolfe, Clerk




                                      ‐5‐