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Date: 04-10-2019

Case Style:

United States of America v. Juan Thompson

Case Number: 18-74

Judge: Wesley

Court: United States District Court for the Southern District of New York (New York County)

Plaintiff's Attorney: Jacob E. Warren, Won S. Shin, Geoffrey S. Berman

Defendant's Attorney: Mark B. Gombiner and Jullian D. Harris

Description:




Defendant‐Appellant Juan Thompson appeals from a judgment of the
United States District Court for the Southern District of New York (Castel, J.)
sentencing him to 60 months’ imprisonment for cyberstalking, 18 U.S.C.
§ 2261A(2), and making hoax threats, 18 U.S.C. § 1038(a)(1). Thompson argues that
the district court erred in applying a two‐level sentencing enhancement pursuant
to United States Sentencing Guidelines § 2A6.2(b)(1)(A). We agree. Accordingly,
we REMAND to the district court for further proceedings consistent with this
opinion.

* * *

Defendant‐Appellant Juan Thompson appeals from a judgment of the
United States District Court for the Southern District of New York (P. Kevin Castel,
Judge) sentencing him to 60 months’ imprisonment for cyberstalking, 18 U.S.C.
§ 2261A(2), and making hoax threats, 18 U.S.C. § 1038(a)(1). Thompson argues that
the district court erroneously applied a two‐level sentencing enhancement for
offenses that “involve[] . . . the violation of a court protection order.” U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) § 2A6.2(b)(1)(A). Thompson contends
that this enhancement does not apply because he was not served with a protection
3
order in accordance with the law of the issuing state. We agree. Accordingly, we
REMAND for further proceedings consistent with this opinion.
BACKGROUND
On June 13, 2017, Thompson pleaded guilty to cyberstalking, in violation of
18 U.S.C. § 2261A(2), and conveying false information and making hoax threats,
in violation of 18 U.S.C. § 1038(a)(1). Thompson had, among other things, sent
harassing text messages to his ex‐girlfriend, emailed her employer in an effort to
have her fired, and emailed bomb threats and anti‐Semitic messages in her name
to various institutions.
At sentencing, the parties disagreed over whether the calculation of
Thompson’s sentence range was subject to United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) § 2A6.2(b)(1)(A), which imposes a two‐level
enhancement where the “offense involved . . . the violation of a court protection
order.” The disagreement stemmed from an August 2016 temporary order of
protection that a Brooklyn family court issued ex parte in response to a petition
filed by Thompson’s ex‐girlfriend.1 The issuing judge attached to the order a
1 The order required that Thompson:
4
summons directing Thompson to appear in family court “to answer the petition
and to be dealt with in accordance with the Family Court Act.” Thompson App.
63. The family court renewed the order and issued a new summons in October
2016. Although it is undisputed that Thompson’s subsequent behavior would
have violated the protection order, it is also undisputed that Thompson was never
“formally served” with the petition, orders, or corresponding summonses. Id. at
45 n.3.
The district court applied the two‐point enhancement because it found that,
under New York law, Thompson was “on notice of the issuance” and contents of
the order. Id. at 151. Application of the protection‐order enhancement resulted in
an advisory Guidelines range of 37 to 46 months’ imprisonment.2 The district
court, however, found that Thompson’s behavior warranted an upward departure
[s]tay away from . . . [his ex‐girlfriend]; . . . the home of [his ex‐girlfriend];
. . . the place of employment of [his ex‐girlfriend]; [r]efrain from
communication or any other contact by mail, telephone, e‐mail, voice‐mail
or other electronic or any other means with [his ex‐girlfriend]; . . . [and
r]efrain from . . . stalking, harassment, . . . intimidation, threats, . . . or any
criminal offense against [his ex‐girlfriend].
Thompson App. 61.
2 Thompson argues that his Guidelines range would be 30 to 37 months’ imprisonment
without the enhancement.
5
and sentenced him to the statutory maximum of 60 months’ imprisonment, see 18
U.S.C. §§ 1038(a)(1)(A), 2261(b)(5), to be followed by three years’ supervised
release. Thompson timely appealed.3
DISCUSSION
In appeals challenging the application of a Guidelines provision, this Court
has adopted an “either/or approach,” reviewing challenges that involve “primarily
. . . issue[s] of fact” for clear error and those that involve “primarily . . . issue[s] of
law” de novo. United States v. Vasquez, 389 F.3d 65, 75–76 (2d Cir. 2004). Because the
question of whether the district court correctly interpreted Guidelines
§ 2A6.2(b)(1)(A) “requires us to consider legal concepts in the mix of fact and law
and to exercise judgment about the values that animate legal principles,” our
review is de novo. Id. at 75 (citation omitted).
We review the district court’s sentencing decision for both procedural and
substantive reasonableness. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)
(en banc). As relevant here, “[a] district court commits procedural error where it
. . . makes a mistake in its Guidelines calculation.” Id. at 190. “When a defendant
3 Under the written plea agreement, Thompson reserved his right to appeal if the district
court sentenced him to an above‐Guidelines term of imprisonment.
6
is sentenced under an incorrect Guidelines range—whether or not the defendant’s
ultimate sentence falls within the correct range—the error itself can, and most
often will, be sufficient to show a reasonable probability of a different outcome
absent the error.” Molina–Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).
I. Guidelines § 2A6.2(b)(1)(A)
Guidelines § 2A6.2(b)(1)(A) imposes a two‐level sentencing enhancement
where “the offense involved . . . the violation of a court protection order.” In
November 2018, approximately one year after Thompson’s sentencing hearing, the
United States Sentencing Commission enacted Amendment 805, which modified
this provision to “respond[] to concerns that the term ‘court protection order’ has
not been defined in the [G]uidelines and should be clarified.” U.S.S.G. Supp. App.
C, amend. 805, at 168 (2018). Because Amendment 805 is “merely a clarification of
the Sentencing Commission’s prior intent . . . , rather than a change in substance,”
we afford Thompson the benefit of this revision on appeal. See United States v. Kim,
193 F.3d 567, 578 (2d Cir. 1999); see also id. (explaining that when “the Commission
states its intent in making the change . . . , the Commission’s characterization of
the alteration as a clarification, rather than a change in substance, is accorded
considerable deference”); U.S.S.G. § 1B1.11(b)(2) (“[I]f a court applies an earlier
edition of the Guidelines Manual, the court shall consider subsequent
7
amendments, to the extent that such amendments are clarifying rather than
substantive changes.”).4
Application Note 1 to Guidelines § 1B1.1 provides “definitions of terms that
are used frequently in the [G]uidelines and are of general applicability.” After
Amendment 805, the Application Note states that the term “‘[c]ourt protection
order’ means ‘protection order’ as defined by 18 U.S.C. § 2266(5)[5] and consistent
with 18 U.S.C. § 2265(b).” U.S.S.G. § 1B1.1 cmt. n.1(D). In turn, 18 U.S.C. § 2265(b)
provides that:
4 We note that the Government did not contest, either in its response to Thompson’s
Federal Rules of Appellate Procedure 28(j) letter or at oral argument, Thompson’s
position that Amendment 805 is “clarifying” rather than “substantive.” Accordingly, it
waived any such argument. Cf. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
(“Issues not sufficiently argued in the briefs are considered waived and normally will not
be addressed on appeal.”).
5 18 U.S.C. § 2266(5)(A) provides:
The term “protection order” includes . . . any injunction, restraining order,
or any other order issued by a civil or criminal court for the purpose of
preventing violent or threatening acts or harassment against, sexual
violence, or contact or communication with or physical proximity to,
another person, including any temporary or final order issued by a civil or
criminal court whether obtained by filing an independent action or as a
pendente lite order in another proceeding so long as any civil or criminal
order was issued in response to a complaint, petition, or motion filed by or
on behalf of a person seeking protection . . . .
Thompson does not dispute that the New York temporary order of protection qualifies
as a “protection order” under § 2266(5)(A).
8
A protection order issued by a State . . . is consistent with this
subsection if (1) such court has jurisdiction over the parties and
matter under the law of such State . . . ; and (2) reasonable notice and
opportunity to be heard is given to the person against whom the order
is sought sufficient to protect that person’s right to due process. In the
case of ex parte orders, notice and opportunity to be heard must be
provided within the time required by State . . . law, and in any event
within a reasonable time after the order is issued, sufficient to protect
the respondent’s due process rights.
Id.
Amendment 805 thus clarifies that the § 2A6.2(b)(1)(A) enhancement
applies only to a state court’s ex parte protection order if that order was issued: (1)
by a court with personal jurisdiction over both the petitioner and the respondent,
as determined by the law of the issuing state;6 (2) by a court with jurisdiction over
the subject matter, as determined by the law of the issuing state; (3) in compliance
with federal procedural due process protections; and (4) in compliance with state
time limits regarding notice and the opportunity to be heard. A court looks to the
law of the issuing state with respect to the first, second, and fourth requirements,
but federal due process principles with respect to the third. See United States v.
Townsend, 897 F.3d 66, 71 (2d Cir. 2018) (applying, in interpreting the Guidelines,
6 Of course, Amendment 805 does not foreclose a party’s argument that the state court’s
exercise of personal jurisdiction was inconsistent with the United States Constitution’s
due process protections. See, e.g., BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017).
9
the presumption that “the application of a federal law does not depend on state
law unless Congress plainly indicates otherwise” (emphasis added)).
In light of the new requirements Amendment 805 imposes, the district court
erred by asking only whether, under New York law, Thompson was “on notice of
the issuance” and contents of the order. Thompson App. 151.7 The § 2A6.2(b)(1)(A)
enhancement comes into play only if, among other requirements, the Brooklyn
family court had personal jurisdiction over Thompson. As discussed below, it did
not, and with that determination we need not—and do not—offer any opinion as
to whether the district court’s inquiry, or the government’s proof, satisfied the
remaining three due process protections outlined above.
II. Thompson Did Not Receive Service in Accordance with New York
Law
Protection orders issued under Article 8 of the New York Family Court Act
(“the Act”) arise from civil proceedings. N.Y. Fam. Ct. Act § 812(2)(b).8 Under New
7 We are necessarily mindful that this error is not of the district court’s making. The
district court could not have known, at the time it sentenced Thompson, that the
Sentencing Commission would later introduce a definition of “court protection order”
that would require consideration of additional factors.
8 Although protection orders can be issued under various provisions of the New York
Code, the order against Thompson states that it was issued “under Article 8 of the Family
Court Act.” Thompson App. 61.
10
York law, a court does not have personal jurisdiction over civil defendants unless
they are served in accordance with statutory requirements. Feinstein v. Bergner, 48
N.Y.2d 234, 241 (1979). “[A]ctual notice of the suit does not cure . . . defect[ive
service] . . . .” Id.; see also Raschel v. Rish, 69 N.Y.2d 694, 697 (1986) (same).
Therefore, although the Act empowers family courts to issue temporary
protection orders immediately upon the filing of a petition, see N.Y. Fam. Ct. Act
§ 821‐a(2)(b), merely issuing an order does not give a court personal jurisdiction
over the affected individual. Rather, where a court issues an ex parte order against
a person over whom it does not already have jurisdiction, the court cannot enjoin
the individual’s behavior unless and until the person has been properly served.
Proper service requires that the affected individual be “promptly” served with a
copy of the “temporary order of protection . . . together with any associated
papers,” including the summons and petition, “at any address designated” in the
order. Id. § 153‐b(c); see also id. § 153‐b(e) (providing for alternative service via
facsimile or electronic means). Once service is made, the issuing court must be
provided “with an affirmation, certificate[,] or affidavit of service” detailing the
date, time, and location of service. Id. § 153‐b(d); see also id. § 153‐b(e) (providing
that where service is attempted but not made, the issuing court must be given “[a]n
11
affirmation, certificate[,] or affidavit of service . . . stating the name of the party
and the papers attempted to be served on said person, and for each attempted
service, the date, time, [and] address”).
The Government conceded in its submission to the district court that
Thompson was never formally served with the petition, orders, or summonses.
Nor is there a claim that another order of protection was issued as a result of the
commencement of a criminal proceeding. See N.Y. Crim. Proc. § 530.12(1) (“When
a criminal action is pending involving a complaint charging any [family offense],
the court . . . may issue a temporary order of protection . . . .”). Accordingly, based
on the record before the district court at sentencing, the protection order was not
“issued by . . . [a] court [with] jurisdiction over the parties,” 18 U.S.C. § 2265(b)(1),
and therefore cannot serve as the basis for a Guidelines § 2A6.2(b)(1)(A)
enhancement.
The Government’s argument that actual notice may substitute for proper
service confuses the requirements for personal jurisdiction with those for
contempt of a protection order. Under New York law, personal jurisdiction
requires service as statutorily prescribed. Feinstein, 48 N.Y.2d at 241. Contempt
proceedings may move forward upon a showing of actual notice, but only so long
12
as the court making the contempt finding already has personal jurisdiction over
the defendant. See, e.g., People v. McCowan, 85 N.Y.2d 985, 987 (1995) (overturning
a criminal conviction for violation of a protection order because, although “notice
is adequate to support a criminal prosecution stemming from violation of an order
if given orally in court,” the defendant was never informed, “either orally or in
writing, [of] the contents of the order and the conduct it prohibit[ed]” (emphasis
added)); In re McCormick v. Axelrod, 59 N.Y.2d 574, 578, 583 (1983) (per curiam)
(holding respondents to a stay order in civil contempt where they had not been
served with the order, but had previously been “served with all papers [including
the stay petition] in [the ongoing] proceeding,” because “the party to be held in
contempt must have had knowledge of the courtʹs order, although it is not
necessary that the order actually have been served upon the party” (emphasis
added)).
In sum, the Government has failed to prove that, under New York law,
Thompson was properly served with the disputed ex parte protection order, and,
thus, that the issuing court ever exercised personal jurisdiction over Thompson—
i.e., that the court ever had the power to enjoin his behavior. The order was
13
therefore inconsistent with 18 U.S.C. § 2265(b)(1) and cannot serve as the basis for
an enhancement under Guidelines § 2A6.2(b)(1)(A).
III. Sentencing Remand
By applying the § 2A6.2(b)(1)(A) enhancement, the district court sentenced
Thompson “under an incorrect Guidelines range.” Molina–Martinez, 136 S. Ct. at
1345. We are mindful that, because the Guidelines are advisory, “[w]here we
identify procedural error in a sentence, but the record indicates clearly that ‘the
district court would have imposed the same sentence’ in any event, the error may
be deemed harmless, avoiding the need to vacate the sentence and to remand the
case for resentencing.” United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (quoting
Cavera, 550 F.3d at 197).
However, this is not such a case. In Jass, the district court “unequivocally”
stated that it would have imposed the same sentence regardless of how the issue
of a disputed enhancement “ultimately work[ed] out” on appeal. Id. The district
court here made no such finding. Although it did impose the statutory maximum
term of imprisonment, we cannot say, given the relatively small difference
between its incorrect Guidelines calculation and that maximum term, that it
“clearly” would have given the same sentence if operating with the benefit of the
correct range.
14
The error in applying the enhancement was therefore not harmless, and we
remand the case to the district court for resentencing. Upon reconsideration, the
district court may, in its discretion, impose a sentence it deems appropriate under
the law.

Outcome: CONCLUSION
We hold that in the circumstances present here, the district court erred in
applying a two‐level sentencing enhancement under Guidelines § 2A6.2(b)(1)(A).
Accordingly, we REMAND the cause to the district court for further proceedings
consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: §2261A. Stalking Whoever— (1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or (2) with the intent— (A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or (B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to— (i) that person; (ii) a member of the immediate family (as defined in section 115 1 of that person; or (iii) a spouse or intimate partner of that person; uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B); 2



 
 
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