United States v. Pinney

     12-3954-cr
     United States v. Pinney

                          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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 9th day of December, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13
14                    Appellee,
15
16                    -v.-                                              No. 12-3954-cr
17
18       CHRISTOPHER PINNEY,
19
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR DEFENDANT-APPELLANT:              LISA PEEBLES (Timothy Austin &
24                                             Molly Corbett on the brief),
25                                             Federal Public Defender, Albany,
26                                             NY.
27


                                                  1
 1   FOR APPELLEE:               RAJIT S. DOSANJH (Richard D.
 2                               Belliss, on the brief) for
 3                               Richard S. Hartunian, United
 4                               States Attorney for the Northern
 5                               District of New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Northern District of New York (Hurd, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14       Christopher Pinney pled guilty to violating two

15   conditions of his supervised release; he now argues that one

16   of those conditions is unconstitutional.   We assume the

17   parties’ familiarity with the underlying facts, the

18   procedural history, and the issues presented for review.

19       “[W]aiver is the ‘intentional relinquishment or

20   abandonment of a known right.’”   United States v. Olano, 507

21   U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.

22   458, 464 (1938)).   If a “party consciously refrains from

23   objecting as a tactical matter, then that action constitutes

24   a true ‘waiver,’ which will negate even plain error review.”

25   United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir.

26   1995).

27       Pinney expressly agreed that the challenged condition

28   be added to the terms of his release and waived his right to

29   a hearing and assistance of counsel.   He later pled guilty

30   to violating the condition and proceeded to sentencing


                                   2
1    without raising any objection, constitutional or otherwise,

2    to its terms.   Instead, Pinney urged the district court to

3    be lenient based primarily on his need for significant

4    supervision from the Probation Office.     Given that the

5    constitutional infirmities Pinney now cites were obvious

6    from the wording of the condition, Pinney evidently made a

7    tactical decision to forgo raising constitutional issues in

8    favor of sentencing-based arguments.     Pinney therefore

9    waived his objections to the condition.

10       We have considered all of Pinney’s remaining arguments

11   and conclude that they are without merit.     The judgment of

12   the district court is hereby affirmed.

13
14                               FOR THE COURT:
15                               CATHERINE O’HAGAN WOLFE, CLERK




                                   3