09-4085-cr
USA v. Bouknight
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 8th day
of October, two thousand ten.
Present:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges,
EDWARD R. KORMAN,*
District Judge.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 09-4085-cr
JOHN F. BOUKNIGHT,
Defendant-Appellant.
________________________________________________
For Defendant-Appellant: Richard A. Reeve, Sheehan & Reeve, New Haven,
CT
For Appellee: Douglas P. Morabito, Edward Chang, Assistant
United States Attorneys, for David B. Fein, United
States Attorney for the District of Connecticut, New
Haven, CT
*
The Honorable Edward R. Korman, United States District Judge for the Eastern District
of New York, sitting by designation.
Appeal from the United States District Court for the District of Connecticut (Arterton,
J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant John F. Bouknight appeals from a judgment of conviction entered September
25, 2009 (Arterton, J.), following a guilty plea, convicting Bouknight of possessing a firearm
after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1), and sentencing him
principally to 77 months’ incarceration. We assume the parties’ familiarity with the facts and
procedural history of this case.
On appeal, Bouknight argues that the district court erred by adding two points to his
criminal history for committing the instant crime while “under a criminal justice sentence”
pursuant to U.S.S.G. § 4A1.1(d). Bouknight explains that on the date of the offense that led to
his conviction, he was on conditional discharge as a result of an earlier state narcotics
conviction. This conditional discharge, he contends, was not a criminal justice sentence because
it imposed no conditions.
In United States v. LaBella-Szuba, 92 F.3d 136, 138 (2d Cir. 1996), we held that a
conditional discharge sentence under section 65.05 of the New York Penal Law was a “criminal
justice sentence” because the state court “could revoke defendant’s conditional discharge
sentence if she committed another offense prior to the termination of the period of conditional
discharge.” We also highlighted the Commentary to section 4A1.1, which states that a term of
unsupervised release is a “criminal justice sentence,” and we noted that there is “no discernible
difference between a conditional discharge sentence and a sentence of unsupervised release.” Id.
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Likewise here, the Connecticut Code authorizes the state courts to “modify or enlarge the
conditions” of a conditional discharge sentence “[a]t any time during the period of . . .
conditional discharge, after hearing and for good cause shown.” Conn. Gen. Stat. § 53a-30(c).
Bouknight argues that there is a critical difference between the New York statute we addressed
in LaBella-Szuba and the Connecticut statute at issue here because the Connecticut statute does
not provide for revocation of conditional discharge, but only the modification or enlargement of
the conditions. We are not persuaded that this distinction matters, see United States v. Ramirez,
421 F.3d 159, 164 (2d Cir. 2005) (noting that conditional discharge “has a ‘supervisory
component’ insofar as the sentencing court can revoke or modify the sentence if the defendant
violates a condition”) (emphasis added), and, moreover, the Connecticut Supreme Court has
stated that “it is universally held that the commission of a felony violates a condition inherent in
every probation order,” State v. Cator, 781 A.2d 285, 301 (Conn. 2001). While Cator references
probation, and not conditional discharge, the commission of a felony would surely constitute
“good cause” pursuant to Connecticut General Statute § 53a-30(c), permitting the state court to
modify or enlarge the conditions of a conditional discharge. Accordingly, we conclude that the
district court properly considered Bouknight’s conditional discharge to be a criminal justice
sentence under U.S.S.G. § 4A1.1.
We have reviewed Bouknight’s remaining arguments and conclude that they lack merit.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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