15‐2663‐cr
United States v. Shapiro
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 6th day of October, two thousand seventeen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JANE A. RESTANI,
Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. 15‐2663‐cr
ROBERT SHAPIRO, AKA Robert Weldon, AKA Robert
Krimis, AKA Ted Ely, AKA Bob Cremins, AKA Robert
Gurian, AKA William Thomas Stovers, AKA Robert
Bullis, AKA James Nally,
Defendant‐Appellant.
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* Jane A. Restani, Judge for the United States Court of International Trade, sitting by
designation.
FOR APPELLEE: MONICA K. CASTRO, Assistant United States
Attorney (David C. James, Assistant United
States Attorney, on the brief), for Bridget M.
Rohde, Acting United States Attorney for the
Eastern District of New York, Brooklyn, New
York.
FOR DEFENDANT‐APPELLANT: ANDREW FREIFELD, Law Office of Andrew
Freifeld, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Robert Shapiro appeals from a judgment entered
August 17, 2015, revoking his supervised release and sentencing him to three yearsʹ
imprisonment (minus 297 days for time served). Shapiro contends that the sentence
exceeds the maximum sentence permitted by law and that the district court failed to
comply with the requirements of Rule 32.1(b)(2) of the Federal Rules of Criminal
Procedure. We assume the partiesʹ familiarity with the underlying facts, procedural
history, and issues on appeal.
Following a jury trial in 1994, Shapiro was convicted of wire fraud,
possession of a stolen check, and sale of stolen goods. On March 28, 1996, the district
court (Trager, J.) sentenced him to a fifteen‐year term of imprisonment for the wire
fraud conviction and two ten‐year terms, to run consecutively, on the sale and
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possession convictions. Shapiro appealed the sentence on the grounds that his conduct
did not affect a financial institution within the meaning of 18 U.S.C. § 1343 and that the
statutory maximum for his wire fraud conviction therefore was five years rather than
thirty years. United States v. Shapiro, 1997 WL 35320, at *2 (2d Cir. Jan. 30, 1997)
(summary order). We declined to address the financial institution issue and affirmed
the sentence on other grounds. Id.
After a jury trial in December 1997, Shapiro was convicted of additional
crimes: attempting to escape from federal custody and forging the signature of a federal
court official. United States v. Shapiro, 1999 WL 1295850, at *1 (2d Cir. Dec. 23, 1999)
(summary order). The district court (Block, J.) sentenced Shapiro to thirty‐three months
imprisonment, consecutively to his earlier sentence. Id. We affirmed the sentence. Id.
at *2.
While he was on supervised release after completing his terms of
imprisonment, proceedings were brought against Shapiro for supervised release
violations. In three separate proceedings ‐‐ first on March 31, 2011, second on
September 12, 2011, and third on August 14, 2015 ‐‐ the district court (Ross, J.)
determined that Shapiro violated the conditions of his supervised release.
The third violation, the focus of this appeal, arose from Shapiroʹs arrest in
October 2011 by New York State authorities for the attempted rape of a twelve‐year old
girl. On May 28, 2014, Shapiro was convicted, following his guilty plea, of three state
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crimes, including attempted criminal sexual act in the first degree (involving a victim
less than thirteen years old). He was sentenced to 78 monthsʹ imprisonment.
At the August 14, 2015 hearing, Shapiro, proceeding pro se,1 declined a
revocation hearing, pleaded guilty to violating his supervisory terms by engaging in
attempted sexual assault and related offenses, and presented his sentencing arguments
to the district court. The court identified the statutory maximum for the violation as
three years, with credit for time served, because (1) the underlying wire fraud
conviction carried a statutory maximum of thirty years under 18 U.S.C. § 1343 and thus
his initial crime was a Class B felony under 18 U.S.C. § 3559, (2) the statutory maximum
for a supervisory violation in such an instance is three years under 18 U.S.C.
§ 3583(e)(3), and (3) under 18 U.S.C. § 3583(h), the sentence for the violation must be
reduced by any time served for a prior revocation of supervised release.2 The court
concluded that the Guidelines sentencing range was 33 to 41 months, discussed the
statutory sentencing factors and Shapiroʹs numerous supervisory violations, stated he
would ʺnever cease to be a danger to the public,ʺ App. 201, and sentenced him to ʺthree
years less 297 days, the maximum sentence [it] can impose on this violation,ʺ App. 202.
Final judgment entered shortly thereafter. This appeal followed.
1 Shapiro had been represented by four different attorneys before he requested and was granted
leave to proceed pro se.
2 The presentence report stated that ʺthe maximum incarceration term can only be two years.ʺ
Presentence Report at 6. At the August 14, 2015 hearing, however, the district court made clear
‐‐ before Shapiro pleaded guilty ‐‐ that in its view the maximum sentence was three years less
297 days.
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Now represented by counsel, Shapiro challenges his sentence for the
supervisory violation on two grounds. First, he asserts that his 1996 wire fraud
conviction did not affect a financial institution, and thus it did not carry a statutory
maximum of thirty years under § 1343 or qualify as a Class B felony under § 3559. He
insists that his conviction instead triggered a statutory maximum of five years, which
classified it as a Class D felony and exposed him under § 3583(e)(3) to a maximum of
two years ‐‐ not three ‐‐ of imprisonment for the supervisory violation. He declares that
the court should have sentenced him to two years less 297 days, rather than three years
less 297 days.
We review the sentencing decision of the district court for plain error
because, as Shapiro concedes, he did not raise this argument below during the
revocation and sentencing proceeding for his supervisory violation. United States v.
Warren, 335 F.3d 76, 78 (2d Cir. 2003) (ʺWarren neither challenged his underlying
conviction and sentence nor objected to the three‐year sentence in the supervised
release revocation proceeding. We therefore review only for plain error under Fed. R.
Crim. P. 52(b).ʺ). Plain error is error that is plain, affects substantial rights, and
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010).
Here, ʺ[w]e find no error, much less plain error, because . . . the validity of
an underlying conviction or sentence may not be collaterally attacked in a supervised
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release revocation proceeding and may be challenged only on direct appeal or through
a habeas corpus proceeding.ʺ Warren, 335 F.3d at 78. Because Shapiro was unsuccessful
in his direct appeal of his sentences for the underlying convictions, see Shapiro, 1997 WL
35320, at *2, he may not re‐litigate the issues again in this appeal of his sentence for the
supervisory violation.
Moreover, while Shapiro did note his belief that he faced a maximum of
two years, that belief was based on the information in the presentence report, which the
district court clarified. He never argued that the 1996 conviction was incorrectly
deemed a Class B felony when it was actually a Class D felony. As Shapiro did not
raise the issue himself, he cannot now reasonably argue that the district court
committed plain error in failing to raise the issue sua sponte. Moreover, at a status
conference on April 13, 2015, when Shapiro was still represented by counsel, the district
court, the government, and defense counsel appeared to be in agreement that the
maximum was three years.
Second, Shapiro alleges that the district court failed to comply with
Federal Rule of Criminal Procedure 32.1(b)(2) during the revocation phase of the
August 14, 2015 proceeding. Rule 32.1(b)(2) requires the court, before revoking a term
of supervised release, to hold a revocation hearing, unless waived, and to give written
notice of the charged violation, to disclose evidence of the violation, and to provide an
opportunity to submit evidence, make a statement, and present information in
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mitigation. Shapiro claims that he received no written notice, disclosure of evidence, or
opportunity to file sentencing submissions, present evidence, and offer mitigating
circumstances. We disagree.
Shapiroʹs assertions are not supported by the record. First, the record
reflects that the probation department prepared a written violation report and that,
before Shapiro requested to proceed pro se, three of his prior attorneys informed the
court that Shapiro had either read the violation report or reviewed the allegations in the
report. Second, both the court and the government reviewed the evidence of Shapiroʹs
violation ‐‐ his plea allocution and certificate of conviction in state court for attempted
sexual assault and other offenses ‐‐ with him at the August 14, 2015 proceeding. Third,
the transcript of the proceeding shows that, during the revocation phase, the court
inquired if Shapiro wanted to hold a hearing or plead guilty to the violation, and
Shapiro replied that he ʺ[m]ight as well just plead guilty and get it over with.ʺ
App. 184. During the sentencing phase, the court afforded Shapiro an opportunity,
which he took, to present oral argument and mitigating circumstances. The transcript
therefore indicates that Shapiro waived his right to a revocation hearing and was
indeed given an opportunity to present sentencing evidence and mitigating information
before the court. Accordingly, the district court conducted the August 14, 2015
proceeding in compliance with Rule 32.1(b)(2) and we decline to vacate Shapiroʹs
sentence on this basis.
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We have considered Shapiroʹs remaining arguments and find them to be
without merit. For the reasons stated herein, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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United States v. Shapiro
Combined Opinion