United States v. Francis

22-1080-cr
United States v. Francis
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2022
S UBMITTED: MAY 12, 2023
DECIDED: A UGUST 8, 2023
No. 22-1080-cr
UNITED S TATES OF AMERICA,
Appellee,
v.
F RANCIS FRANCIS ,
Defendant-Appellant.
________
Appeal from the United States District Court
for the Eastern District of New York.
________
Before: WALKER , L OHIER , and PÉREZ , Circuit Judges.
________
Defendant-Appellant Francis Francis appeals from a May 11,
2022 judgment of the United States District Court for the Eastern
District of New York (Komitee, J.) revoking his original, three-year
term of supervised release and sentencing him to three months’
imprisonment followed by a new, one-year term of supervised release
for violating certain conditions of his supervised release.

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Francis contends that the district court erred in finding that he
violated a condition of his supervised release by possessing marijuana
on January 27, 2021, in violation of New York Penal Law § 221.05.
First, Francis argues that the offense defined by § 221.05 was simply a
state “violation,” not a state “crime,” and therefore his offense did not
violate the mandatory condition of supervised release that he “not
commit another federal, state or local crime.” Second, Francis argues
that even if the offense, as defined by § 221.05, constituted a “crime”
for purposes of a violation of supervised release, New York’s March
31, 2021 repeal of the statute operated retroactively, such that his pre-
repeal conduct in contravention of it cannot serve as the basis for a
violation of supervised release. We agree with the district court’s
conclusion that Francis violated a condition of his supervised release
based on his possession of marijuana. We so hold because,
irrespective of New York’s classification of the offense, Francis’s
underlying conduct constituted a “crime” under federal law. Because
this holding disposes of Francis’s appeal in its entirety, we do not
reach Francis’s retroactivity argument.
Accordingly, we AFFIRM the judgment of the district court.
________
David C. James, Emily J. Dean, Assistant United
States Attorneys, for Breon Peace, United States
Attorney for the Eastern District of New York,
Brooklyn, NY, for Appellee the United States of
America.
Edward S. Zas, Barry D. Leiwant, Federal
Defenders of New York, Inc., New York, NY, for
Defendant-Appellant Francis Francis.

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________
JOHN M. WALKER , JR ., Circuit Judge:
Defendant-Appellant Francis Francis appeals from a May 11,
2022 judgment of the United States District Court for the Eastern
District of New York (Komitee, J.) revoking his original, three-year
term of supervised release and sentencing him to three months’
imprisonment followed by a new, one-year term of supervised release
for violating certain conditions of his supervised release.
Francis contends that the district court erred in finding that he
violated a condition of his supervised release by possessing marijuana
on January 27, 2021, in violation of New York Penal Law § 221.05.
First, Francis argues that the offense defined by § 221.05 was simply a
state “violation,” not a state “crime,” and therefore his offense did not
violate the mandatory condition of supervised release that he “not
commit another federal, state or local crime.” App’x 70. Second,
Francis argues that even if the offense, as defined by § 221.05,
constituted a “crime” for purposes of a violation of supervised
release, New York’s March 31, 2021 repeal of the statute operated
retroactively, such that his pre-repeal conduct in contravention of it
cannot serve as the basis for a violation of supervised release. We
agree with the district court’s conclusion that Francis violated a
condition of his supervised release based on his possession of
marijuana. We so hold because, irrespective of New York’s
classification of the offense, Francis’s underlying conduct constituted
a “crime” under federal law. Because this holding disposes of
Francis’s appeal in its entirety, we do not reach Francis’s retroactivity
argument.
Accordingly, we AFFIRM the judgment of the district court.

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BACKGROUND
In October 2016, Francis pleaded guilty in the Southern District
of New York to one count of possessing a firearm following a felony
conviction, in violation of 18 U.S.C. § 922(g)(1), and one count of
possessing a controlled substance with intent to distribute, in
violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C)–(D). The
district court (Marrero, J.) sentenced Francis principally to forty
months’ imprisonment followed by a three-year term of supervised
release. Among other conditions of supervised release, the district
court imposed the mandatory condition, pursuant to 18 U.S.C.
§ 3583(d), that Francis “not commit another federal, state or local
crime.” App’x 70. Francis completed his term of imprisonment and
began his term of supervised release in July 2019. On March 8, 2021,
Francis’s supervision was transferred to the Eastern District of New
York.
On March 12, 2021, the United States Probation Office for the
Eastern District of New York filed a Violation of Supervised Release
Report charging Francis with six violations of the conditions of his
supervised release. The Office subsequently filed a Supplemental
Report adding three charges, for a total of nine violations. As relevant
on appeal, Charge Three alleged that on January 27, 2021, Francis
violated the mandatory condition of supervision that he “not commit
another federal, state or local crime” by “committ[ing] the crime of
Unlawful Possession of Marijuana, in violation of New York State
Penal Law [§ 221.05].” Id. at 24, 159–60.

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Francis pleaded not guilty to all charges1 and moved to dismiss
three of the charges, including Charge Three, as a matter of law. With
respect to Charge Three, Francis noted that New York had repealed
§ 221.05 effective March 31, 2021, legalizing adult recreational use and
possession of marijuana and automatically nullifying any convictions
under the statute. Francis argued that a violation of supervised
release cannot be premised on “conduct that is no longer considered
a crime” and for which convictions have been expunged by operation
of law. Id. at 162. Francis also briefly noted that, even when the
statute was in place, contravening § 221.05 was merely a violation that
authorized a fine; it was not a crime punishable by incarceration.
The district court held an evidentiary hearing on the violation
of supervised release charges. As to Charge Three, the government’s
evidence was that on January 27, 2021, a New York City Police
Department detective conducted a car stop of a vehicle in which
Francis was a passenger. The officer observed marijuana on Francis’s
lap and issued Francis a summons for unlawful possession of
marijuana. Later that day, officers observed and video-recorded
Francis engaging in a drug transaction. After questioning and
recovering marijuana from the buyer, the officers arrested Francis for
the sale of marijuana. At the time of his arrest, Francis was in
possession of, among other things, two marijuana cigarettes. Officers
recovered additional marijuana from Francis at the precinct after he
was found smoking marijuana in his cell.
On December 8, 2021, following post-hearing briefing, the
district court denied Francis’s motion to dismiss and found him guilty
of seven violations of the conditions of his supervised release. The
1 The government notified the district court that it would not pursue two of the
charges, leaving seven remaining.

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district court rejected Francis’s legal argument seeking dismissal of
Charge Three, noting that his possession of marijuana occurred two
months before the offense was decriminalized in New York. The
district court stated that, although it was “hard for [it] to get very
much exercised about possession of marijuana for personal use,”
Francis’s conduct, as “clearly established by the evidence,” was “still
illegal” and thus “clearly a violation of the terms of supervised
release.” Id. at 325–26.
On April 28, 2022, after a ninety-day adjournment to allow
Francis to demonstrate his ability to comply with his supervised
release conditions (during which he exhibited continued
noncompliance), the district court revoked Francis’s supervised
release and sentenced him to three months’ imprisonment and a new,
one-year term of supervised release. This appeal followed.
DISCUSSION
On appeal, Francis challenges only his revocation on Charge
Three, making two arguments. First, he argues that the offense of
unlawful possession of marijuana under New York Penal Law
§ 221.05 was defined as a state “violation,” not a state “crime,” and
therefore did not constitute a “federal, state or local crime” in
violation of the conditions of his supervised release. Second, Francis
argues that New York’s repeal of § 221.05 operated retroactively and,
accordingly, his pre-repeal conduct disobeying the statute cannot
serve as the basis for a supervised release violation.
We review a district court’s finding that a defendant has
violated a condition of supervised release for abuse of discretion.
United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006). For the
reasons that follow, we affirm the district court’s conclusion that

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Francis violated a condition of his supervised release by committing
the underlying offense outlined in Charge Three.
A. Whether Disobeying New York Penal Law § 221.05 Was a
“Crime” in Violation of Supervised Release
Charge Three alleged that on January 27, 2021, Francis violated
the mandatory condition of supervision that he “not commit another
federal, state or local crime” by “committ[ing] the crime of Unlawful
Possession of Marijuana, in violation of New York State Penal Law.”
App’x 24. In a supplemental filing, the government clarified that it
intended to prove Charge Three based on Francis’s violation of New
York Penal Law § 221.05. Id. at 159–60.
The version of § 221.05 in effect on January 27, 2021 provided
that “[a] person is guilty of unlawful possession of marihuana in the
second degree when he knowingly and unlawfully possesses
marihuana. Unlawful possession of marihuana in the second degree
is a violation punishable only by a fine of not more than fifty dollars.”
N.Y. Penal Law § 221.05 (emphasis added), repealed by L.2021, c. 92,
§ 15, eff. March 31, 2021.2 New York Penal Law defines a “violation”
as “an offense . . . for which a sentence to a term of imprisonment in
excess of fifteen days cannot be imposed.” Id. § 10.00(3). By contrast,
a “crime” is defined as “a misdemeanor or a felony.” Id. § 10.00(6). A
“misdemeanor” is “an offense . . . for which a sentence to a term of
imprisonment in excess of fifteen days may be imposed, but for which
a sentence to a term of imprisonment in excess of one year cannot be
2 New York Penal Law § 221.05 was repealed by the New York state legislature
as part of the Marihuana Regulation and Taxation Act, effective March 31, 2021.
1248-A, 2021-2022 Leg., Reg. Sess. (N.Y. 2021), codified as N.Y. Penal Law § 222. In
New York, persons twenty-one years of age or older may now lawfully “possess[]
. . . up to three ounces of cannabis.” N.Y. Penal Law § 222.05(1)(a).

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imposed.” Id. § 10.00(4). A “felony” is “an offense for which a
sentence to a term of imprisonment in excess of one year may be
imposed.” Id. § 10.00(5). Accordingly, as we have recognized in other
contexts, “under New York law, . . . a ‘violation,’ . . . is not within the
definition of a ‘crime.’” Penree v. City of Utica, 694 F. App’x 30, 34 (2d
Cir. 2017). Relying on these definitions, Francis argues that
“disobeying § 221.05 was never a state ‘crime’” in violation of the
condition of supervised release that he “not commit another federal,
state or local crime,” and therefore the district court erred in
determining that he “committed a state ‘crime’ by possessing
marijuana . . . as alleged in Charge 3.”3 Francis Br. 16.
Whether the federal supervised release statute requires
defendants to abstain from acts that states treat as less serious than
“crimes” is a question of first impression for this court. We have, in
another context, employed a “functional approach” to determine
whether a lesser state-law offense qualifies as “criminal” for purposes
of federal law. See Nowakowski v. New York, 835 F.3d 210, 219–22 (2d
Cir. 2016) (holding that the “violation” of second-degree harassment
under New York Penal Law § 240.26 was “criminal in nature” to
invoke the presumption of continuing collateral consequences in the
3 The government asserts that Francis did not press this definitional argument
before the district court and that it is thus reviewable for plain error. As noted
above, Francis raised this argument—albeit in passing—in his written submission
to the district court during the revocation proceedings. However, “[e]ven
assuming that [Francis] failed to raise the argument below, the rule against
considering arguments raised for the first time on appeal is prudential, not
jurisdictional, and we are free to exercise our discretion to consider waived
arguments.” United States v. Brunner, 726 F.3d 299, 304 (2d Cir. 2013) (internal
quotation marks omitted). In any case, we find that the district court committed
no error, plain or otherwise.

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context of Article III mootness).4 However, such a factor-driven
analysis is not necessary where, as here, the conduct underlying the
state-law offense is a “crime” under federal law.
We begin, as in all matters of statutory interpretation, with the
text of the relevant statute. In re WorldCom, Inc., 723 F.3d 346, 352 (2d
Cir. 2013). The federal supervised release statute, 18 U.S.C. § 3583(d),
mandates that a district court “order, as an explicit condition of
supervised release, that the defendant not commit another Federal,
State, or local crime during the term of supervision.” See App’x 70
(listing the mandatory conditions of Francis’s supervised release).
We focus on two elements of the statutory language in reaching our
conclusion: its listing of three types of “crimes” in the disjunctive, and
its use of the word “commit.”
First, even if we were to assume, arguendo, that a violation of
New York Penal Law § 221.05 was not a “[s]tate . . . crime,” accepting
Francis’s argument would require us to overlook the statute’s two
additional adjectives modifying “crime”: “[f]ederal . . . or local.” 18
U.S.C. § 3583(d). Our canons of construction instruct that the word
“or” “is almost always disjunctive, that is, the words it connects are
to ‘be given separate meanings.’” United States v. Woods, 571 U.S. 31,
45–46 (2013) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)).
Accordingly, Congress’s use of “or” here suggests that the listed
offenses that violate supervised release “are alternatives,” id. at 46,
4 A district court in the Southern District of New York (Rakoff, J.) subsequently
applied Nowakowski’s functional approach to hold that second-degree harassment
under § 240.26 also constituted a “crime” for purposes of a federal supervised
release violation. United States v. Patterson, 449 F. Supp. 3d 375, 382–85 (S.D.N.Y.
2020).

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with each to be afforded its “independent and ordinary significance,”
Reiter, 442 U.S. at 338–39.5
Second, the statute expressly refers to crimes that a defendant
must not “commit,” and not to any prosecutorial consequences that
might follow—e.g., arrest, indictment, or conviction. See 18 U.S.C.
§ 3583(d). As we have recognized, “the applicability of this condition
is not dependent on the defendant’s being convicted, so long as the
court in the revocation proceeding finds that the defendant
‘committed’ such a crime”—i.e., carried out the conduct satisfying the
legal elements of the offense—by a preponderance of the evidence.
United States v. Chatelain, 360 F.3d 114, 124 (2d Cir. 2004).
Accordingly, it is the defendant’s offense conduct alone that
constitutes a supervised release violation, and we are not constrained
by the specific (here, state) crime identified by the government as
support for the violation of supervised release charge.
Our interpretation is reinforced by the Federal Sentencing
Guidelines. The Guidelines’ grading scheme for supervised release
violations consistently uses the word “conduct” when classifying
violations by severity. See, e.g., U.S.S.G. § 7B1.1(a)(2) (defining
“Grade B Violations” as “conduct constituting [a] federal, state, or
local offense punishable by a term of imprisonment exceeding one
year” (emphasis added)). The commentary to this provision of the
Guidelines notes that “[a] violation of this condition may be charged
5 In addition to the statute listing three separate species of “crime,” the grading
scheme for supervised release violations utilizes the phrase “any . . . federal, state,
or local offense,” U.S.S.G. § 7B1.1(a)(1)–(2) (emphasis added), indicating that
Congress intended to encompass a broad, non-mutually exclusive range of
criminal conduct. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218–19 (2008) (the
word “any” “suggests a broad meaning,” that is, “one or some indiscriminately of
whatever kind” (internal quotation marks omitted)); see also Encino Motorcars, LLC
v. Navarro, 138 S. Ct. 1134, 1141 (2018) (the word “any” “bespeaks breadth”).

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whether or not the defendant has been the subject of a separate
federal, state, or local prosecution for such conduct.” Id. cmt. n.1; see
also id. (“[T]he grade of the violation is to be based on the defendant’s
actual conduct.”); United States v. Montgomery, 893 F.3d 935, 940 (6th
Cir. 2018) (“conduct” in the supervised release context “is broader
than ‘conviction’ or ‘crime’”). The Guidelines also acknowledge that
a single violation of supervised release may be premised on multiple
offenses or offenses in the alternative, providing that, “[w]here there
is more than one violation . . . , or the violation includes conduct that
constitutes more than one offense, the grade of the violation is
determined by the violation having the most serious grade.” U.S.S.G.
§ 7B1.1(b). Implicit is the recognition that the conduct underlying a
violation of supervised release may constitute multiple offenses that
have distinct classifications of severity in different jurisdictions—for
example, a state “violation” and a federal “crime.”
Several decisions of our sister circuits support our inclusive
reading of the statute. In United States v. Jolibois, the defendant
challenged the classification of his supervised release violation on the
basis that in Washington state his possession of methamphetamine
was punishable by a prison term exceeding one year (a Grade B
violation), but by a term of one year or less under federal law (a Grade
C violation). 294 F.3d 1110, 1112–13 (9th Cir. 2002) (citing U.S.S.G.
§ 7B1.1(a)). In holding that the district court properly deferred to the
more serious state offense under U.S.S.G. § 7B1.1(b), the Ninth Circuit
noted that “[t]he Guidelines place violations of state law on equal
footing with violations of federal law when deciding whether to
revoke supervised release,” and that the defendant’s conduct
“constituted more than one offense.” Id. at 1113. Similarly, the Sixth
Circuit has noted that, even if a defendant’s possession of cocaine
were not a federal felony supporting a Grade B violation, his conduct

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“constituted a felony under [Kentucky] state law,” thereby providing
an alternative, independently sufficient basis to affirm the violation
grade. United States v. Crace, 207 F.3d 833, 837–38 (6th Cir. 2000).6
Finally, we note that our interpretation provides a desirable
consistency to the analysis of federal supervised release violations.
As we recognized in Nowakowski, “[s]tates have widely varying
designations of offenses under their penal codes . . . . For example,
elsewhere in our Circuit, Connecticut declines to designate
‘violations’ as crimes, while Vermont has no violations and instead
labels all offenses in its penal code as felonies or misdemeanors.” 835
F.3d at 220. To excuse a defendant in New York or Connecticut from
a revocation of supervised release because his conduct was a state
“violation,” when identical conduct committed by a defendant in
Vermont would have been a qualifying “crime,” would be unjust in
circumstances where such conduct is globally defined by federal law
as a “crime.” The substance of the offense and not “vagaries of
nomenclature” should determine what consequences attend a
defendant’s post-release wrongdoing. Id.; see also Patterson, 449 F.
Supp. 3d at 385. Although some inconsistency is inevitable in our
system of federalism, we decline to adopt an approach that fosters
disparity when uniformity is achievable.
In summary, we hold that a defendant violates a condition of
his supervised release pursuant to 18 U.S.C. § 3583(d) if his conduct
constitutes any one or more of a “federal crime,” a “state crime,” or a
6 Although these cases consider a district court’s revocation sentencing rather
than the determination of a violation in the first instance, we find them persuasive
in that they rely on the commentary to the Guidelines, which notes generally that
“[a] violation of this condition may be charged whether or not the defendant has
been the subject of a separate federal, state, or local prosecution for such conduct.”
U.S.S.G. § 7B1.1 cmt. n.1 (emphasis added).

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“local crime,” whether or not that crime is ever prosecuted. And here,
the uncontested conduct underlying Francis’s Charge Three
violation—simple possession of marijuana—was a federal crime.
Under federal law, it is “unlawful for any person knowingly or
intentionally to possess a controlled substance.” 21 U.S.C. § 844(a).
Marijuana is a Schedule I controlled substance under the Controlled
Substances Act. Id. § 812(c). “Despite considerable efforts to
reschedule marijuana, it remains a Schedule I drug.” 7 Gonzales v.
Raich, 545 U.S. 1, 15 (2005). To be sure, and as the district court
recognized during Francis’s revocation proceedings, “public attitudes
towards [marijuana] prosecutions are changing in a very substantial
way[,] and government reactions to them as well.” App’x 326. Yet,
although New York and many other states have legalized adult use
of marijuana, possession of the drug continues to be a federal crime.
See Gonzales, 545 U.S. at 14 (by placing marijuana on Schedule I,
Congress rendered “possession of marijuana . . . a criminal offense”).8
Francis does not contest that he engaged in the conduct
underlying the offense outlined in Charge Three: that he possessed
marijuana during a car stop, for which he received a summons;
subsequently sold marijuana to another individual; possessed
marijuana at the time of his arrest for that sale; and smoked marijuana
while in custody, at which time officers found additional marijuana
on his person. And it is undisputed that all of this conduct constitutes
federal “criminal offense[s].” Id. Our reasoning is simple: Francis’s
7 We recently rejected a constitutional challenge to Congress’s scheduling of
marijuana, holding that the drug’s placement on Schedule I satisfied rational basis
review. United States v. Amalfi, 47 F.4th 114, 125–26 (2d Cir. 2022).
8 Simple possession of a controlled substance is punishable as a federal felony
for defendants, like Francis, who have prior drug convictions. Carachuri-Rosendo
v. Holder, 560 U.S. 563, 567–68 (2010); see 21 U.S.C. § 844(a).

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conduct committing the federal crime of simple possession of
marijuana violated the condition of his supervised release that he “not
commit another federal, state, or local crime,” App’x 70, regardless of
how New York state law classified the offense. We therefore affirm
the judgment of the district court finding that Francis violated a
condition of his supervised release with respect to Charge Three. See
Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995) (“We are free to
affirm on any ground that finds support in the record, even if it was
not the ground upon which the trial court relied.”).
B. The Retroactive Effect of New York Penal Law § 221.05’s
Repeal
Because we hold that Francis violated a condition of his
supervised release by committing the federal crime of simple
possession of marijuana, without regard to New York State’s
classification of this conduct, we need not reach his alternative
argument that the retroactive effect of New York’s repeal of § 221.05
compels us to vacate the district court’s judgment with respect to
Charge Three. We express no view as to the extent to which the repeal
of § 221.05 operates retroactively, or what impact, if any, a retroactive
effect may have on a supervised release violation premised on a
defendant’s pre-repeal conduct disobeying the statute.
C ONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.

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