United States v. Betts

17-231-cr
United States v. Betts
In the
United States Court of Appeals
for the Second Circuit
AUGUST T ERM 2017
No. 17‐231‐cr
UNITED S TATES OF AMERICA,
Appellee,
v.
J EFFREY D. BETTS,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Western District of New York
ARGUED : J ANUARY 23, 2018
DECIDED : MARCH 28, 2018
Before: L EVAL , CALABRESI , C ABRANES , Circuit Judges.

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Defendant Jeffrey Betts appeals from a December 7, 2016
judgment of the United States District Court for the Western
District of New York (Richard J. Arcara, Judge) in which he was
sentenced principally to a term of ten months’ imprisonment and
four years of supervised release, with special conditions of
supervised release. The District Court ordered that the defendant
refrain from consuming any alcohol whatsoever while under
supervision. It also required substance abuse testing, stating that
“[t]here will be zero tolerance of the use of any drugs at all.” J.A.
at 154 (emphasis added).
Betts now argues that this newly imposed sentence of four
years of supervised release is substantively unreasonable. He also
argues that the District Court erred in imposing the special
conditions relating to alcohol and drugs.
We reject defendant’s argument that the imposition of an
additional four years of supervised release was substantively
unreasonable. We also reject defendant’s argument that the
District Court erred in imposing a special condition requiring
defendant to submit to periodic drug testing. We agree with
defendant that the District Court’s imposition of a total ban on
the consumption of alcohol was not reasonably related to the
nature and circumstances of the defendant’s offense.

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Accordingly, we AFFIRM in part and VACATE in part the
judgment of the District Court.
ELIZABETH R. MOELLERING , Assistant
United States Attorney, for James P.
Kennedy, Jr., Interim United States
Attorney for the Western District of New
York, Buffalo, NY, Appellee.
J AYME L. F ELDMAN, Federal Public
Defender for the Western District of New
York, Buffalo, NY, for Appellant‐
Defendant.
J OSÉ A. C ABRANES , Circuit Judge:
Defendant Jeffrey Betts (“defendant” or “Betts”) appeals
from a December 7, 2016 judgment of the United States District
Court for the Western District of New York in which he was
sentenced principally to a term of ten months’ imprisonment and
four years of supervised release. This sentence resulted from
Betts’s multiple violations while on supervised release for a
previous conviction for conspiracy to commit bank fraud in
violation of 18 U.S.C. § 1349. He was originally sentenced to

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principally 24 months in prison, followed by five years’
supervised release. His initial term of supervised release began
on August 2, 2013, upon his release from prison.
The violations for which Betts was most recently sentenced
included two arrests for driving without a license and failure to
make required restitution payments in the amount of ten percent
of his gross monthly income. On November 28, 2016, after being
remanded to the custody of the United States Marshals Service,
he appeared before the District Court and admitted to violation
number 3 (failure to notify his probation officer within 72 hours
of being arrested), based on his July 29, 2016 arrest for driving
without a license. Betts pleaded guilty to this violation pursuant
to a plea agreement, which anticipated an advisory United States
Sentencing Guidelines (“Guidelines”) range of imprisonment of
4 to 10 months. The Agreement also projected that, under the
Guidelines, Betts would be subject to a maximum term of
supervised release of five years.
In addition to sentencing Betts to ten months’
imprisonment and four years of supervised release, the District
Court imposed special conditions of supervised release. It
ordered that the defendant refrain from consuming any alcohol
whatsoever while under supervision. It also required substance
abuse testing, stating that “[t]here will be zero tolerance of the use
of any drugs at all.” J.A. at 154 (emphasis added).

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Betts now asserts that this newly imposed sentence of four
years of supervised release is substantively unreasonable. He also
claims that the District Court erred in imposing the special
conditions relating to alcohol and drugs.
We reject defendant’s argument that the District Court’s
imposition of an additional four years of supervised release was
substantively unreasonable. We also reject defendant’s argument
that the District Court erred in imposing a special condition
requiring defendant to submit to periodic drug testing. We agree
with defendant that the District Court’s imposition of a total ban
on the consumption of alcohol was not reasonably related to the
nature and circumstances of the defendant’s offense.
Accordingly, we AFFIRM in part and VACATE in part the
judgment of the District Court.
DISCUSSION
I. Substantive Reasonableness
We review a sentence for substantive reasonableness under
a “deferential abuse‐of‐discretion standard.” Gall v. United States,
552 U.S. 38, 41 (2007); see also United States v. Broxmeyer, 699 F.3d
265, 278 (2d Cir. 2012) (“[O]ur standard is ‘reasonableness,’ ‘a
particularly deferential form of abuse‐of‐discretion review.’”). A
sentence is substantively unreasonable “only if it cannot be

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located within the range of permissible decisions.” United States
v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (internal quotation
marks and citation omitted). As we have observed before, “in the
overwhelming majority of cases, a Guidelines sentence will fall
comfortably within the broad range of sentences that would be
reasonable in the particular circumstances.” United States v.
Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (abrogated on other
grounds by Rita v. United States, 551 U.S. 338, 364 (2007)).
Betts argues that his sentence of four years of supervised
release was substantively unreasonable for three reasons. He first
contends that his violation was not sufficiently egregious to
warrant an additional four‐year term of supervised release. This
argument lacks merit. The District Court carefully reviewed the
factual basis for defendant’s violation, as well as his personal
history and characteristics, before concluding that a four‐year
term of supervised release was warranted. The District Court
considered, among other factors, defendant’s repeated failure to
make restitution payments despite his earning an income that
would support the payments, and the fact that defendant
absconded from supervision for two months after his most recent
arrest. The District Court repeatedly noted a concern that this
behavior indicated a disregard of the consequences of violating
the law.

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Defendant next argues that the District Court abused its
discretion in sentencing him to a term at the upper end of the
applicable Guidelines range. We also find this argument
unpersuasive. As previously noted, a sentence within the
Guidelines is presumptively reasonable. Both the imposed term
of imprisonment and the term of supervised release were within
the recommended Guidelines range, and a sentence on the upper
end of the Guidelines falls comfortably within the broad range of
sentences that would be reasonable in these particular
circumstances given defendant’s behavior while on supervised
release.
Last, we reject defendant’s contention that the District
Court erred in discrediting some of defense counsel’s mitigation
arguments. The District Court was not persuaded by some of
defense counsel’s claims that defendant was taking serious steps
to behave better because the Court found these statements to be
contradicted by defendant’s actions. The District Court’s decision
to weigh the evidence as it did was not an abuse of discretion.
In sum, upon a review of the record, we conclude that all of
defendant’s challenges to the substantive reasonableness of a
four‐year term of supervised release are without merit.

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II. Procedural Reasonableness
We now turn to defendant’s claim that the District Court’s
imposition of additional special conditions of supervised release
constituted procedural error.
District courts possess broad discretion in imposing
conditions of supervised release. A sentencing court may impose
special conditions that are reasonably related to “the nature and
circumstances of the offense and the history and characteristics of
the defendant”; “the need for the sentence imposed to afford
adequate deterrence to criminal conduct”; “the need to protect
the public from further crimes of the defendant”; and “the need
to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner,” and which “involve no greater deprivation of
liberty than is reasonably necessary” for these purposes. U.S.S.G.
§ 5D1.3(b); see also United States v. Myers, 426 F.3d 117, 123–25 (2d
Cir. 2005). Nevertheless, a district court’s discretion to impose
special conditions is not “untrammeled,” and we will “carefully
scrutinize unusual and severe conditions.” Myers, 426 F.3d at
124 (internal quotation marks omitted).
A district court is required to make an individualized
assessment when determining whether to impose a special
condition of supervised release, and to state on the record the

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reason for imposing it; the failure to do so is error. See United
States v. Balon, 384 F.3d 38, 41 n.1 (2d Cir. 2004). In the absence of
such an explanation, we may uphold the condition imposed only
if the district court’s reasoning is “self‐evident in the record.” Id.
But it is also clear that the conditions must be “reasonably
related” to the sentencing objectives. See 18 U.S.C. § 3583(d); see
also United States v. Reeves, 591 F.3d 77 (2d Cir. 2010) (vacating an
imposed special condition that required a defendant convicted of
possession of child pornography to notify the Probation
Department when he established a “significant romantic
relationship” and to inform his partner of his criminal history
because it was not reasonably related to sentencing objectives).
We first address the District Court’s total prohibition of
alcohol use and then its requirement that defendant submit to
substance abuse testing with “zero tolerance” for the use of any
drugs.
a. Alcohol use
Defendant principally argues that a special condition
prohibiting all alcohol use is not reasonably related to either his
underlying crime or his admitted violation, and that the ban
involves a greater deprivation of liberty than reasonably
necessary to achieve sentencing goals.

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After examining the record, we agree. Neither defendant’s
underlying crime nor any of the conduct contributing to his
violations of supervised release involved the use of alcohol. The
District Court was not presented with any evidence suggesting
that defendant ever seriously abused alcohol. It also provided no
reason for imposing this special condition, beyond a clearly
stated displeasure with defendant’s performance while on
supervised release. Given the factual record below, the standard
condition limiting “excessive use” of alcohol, which was also
included in defendant’s judgment, is sufficient to further the
objectives of sentencing. We conclude that the special condition
banning all alcohol use is not reasonably related to any of the
factors outlined in Section 5D1.3(b), and necessitates vacatur.
b. Drug testing
Defendant next urges us to vacate the District Court’s
special condition requiring substance abuse testing with “zero
tolerance of the use of any drugs at all.” He claims the condition
constituted a complete ban on all drugs, including those
prescribed by a physician, and was thus error. Though inartfully
worded, this special condition does not prevent defendant from
using lawful drugs. The judgment entered by the District Court
also included the standard condition that he “shall not purchase,
possess, use, distribute, or administer any controlled substance or
any paraphernalia related to any controlled substances, except as

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prescribed by a physician.” J.A. at 160. When read in conjunction
with this standard condition of supervision, it is clear that the
imposed “zero tolerance” policy is meant to apply only to the use
of controlled substances not prescribed by a physician. So read,
the condition is entirely appropriate.
CONCLUSION
To summarize: we AFFIRM the District Court’s imposition
of a four‐year term of supervised release, as well as the District
Court’s imposition of a special condition requiring periodic
testing for use of controlled substances without a prescription.
We VACATE the special condition prohibiting all use of alcohol
and REMAND the cause to the District Court for further
consideration of whether it is necessary to impose
any special conditions related to alcohol use and, if so, for the
District Court to explain the basis for imposing them in light of
the factors listed in Guidelines Section 5D1.3(b).

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