Applying Maiorana, the Second Circuit Confirms Incorporation-by-Reference of Supervised-Release Conditions and Upholds Broad Reasonable-Suspicion Search Condition: United States v. Gomez

Introduction

In United States v. Gomez, No. 24-347-cr (2d Cir. Sept. 9, 2025) (summary order), a panel of the Second Circuit (Judges Calabresi, Parker, and Nardini) affirmed a district court’s imposition of a broad search condition of supervised release and a substantial upward variance to 120 months’ imprisonment following a guilty plea to possession of ammunition after a felony conviction. Although this decision is a non-precedential summary order, it is a timely and concrete application of the Second Circuit’s recent en banc ruling in United States v. Maiorana (2025), which held that a sentencing court need not read the verbatim text of each supervised-release condition so long as it expressly adopts or incorporates by reference written conditions available to the defendant at sentencing. The panel also upheld an electronics-inclusive search condition under a “reasonable suspicion” standard, and it affirmed a sentence more than double the high end of the advisory range as substantively reasonable in light of the dangerous conduct surrounding the offense and the defendant’s criminal history.

The case sits at the intersection of two recurring sentencing issues: (1) how district courts must pronounce and justify special conditions of supervised release, and (2) how appellate courts assess the substantive reasonableness of significant upward variances where the offense of conviction does not fully capture the real-world danger of the conduct.

Note: This is a summary order. Under Federal Rule of Appellate Procedure 32.1 and Second Circuit Local Rule 32.1.1, it may be cited with proper notation (“summary order”), but it has no precedential effect.

Case Overview

Defendant-Appellant Anthony Gomez, while on a day pass from a Bronx residential reentry center (halfway house) serving the tail end of a prior federal sentence, obtained a firearm and, when approached by NYPD officers, fled and fired a shot in their direction on a crowded street. No one was hit. He was apprehended hours later. Gomez pled guilty to possessing ammunition after a felony conviction. The district court (Furman, J.) imposed:

Imprisonment: 120 months (above-Guidelines; Guidelines range 46–57 months).
Supervised release: 3 years, with a special “search condition” authorizing searches based on reasonable suspicion of violations or unlawful conduct, including searches of electronic devices and cloud storage.

On appeal, Gomez challenged:

Whether the district court violated Rule 43(a) by not orally pronouncing the full text of the search condition at sentencing and whether it failed to adequately justify that condition.
Whether the upward variance to 120 months was substantively unreasonable.

Summary of the Opinion

The Second Circuit affirmed in full. First, relying on its recent en banc decision in United States v. Maiorana, the panel held that the district court satisfied Rule 43(a) by expressly incorporating by reference the special conditions set out in the Presentence Report (PSR), which Gomez had reviewed, including the search condition. Second, applying plain-error review (because Gomez did not object below), the court found the justification for the search condition “self-evident” from the record given Gomez’s repeated firearms offenses, the extreme danger of the instant offense, and additional factors (including attempted introduction of drugs into jail and deceptive phone use while evading arrest). The court also rejected the claim that inclusion of electronic devices made the condition overbroad, citing circuit law that does not require tailoring search conditions to prior misconduct where the condition itself requires reasonable suspicion. Finally, the panel held the 120-month sentence was not substantively unreasonable: the district court permissibly found that the Guidelines underrepresented the seriousness of firing a shot toward officers in a crowded area while in federal custody and reasonably weighed Gomez’s extensive firearm-related history and institutional violations under § 3553(a).

The Special Search Condition at Issue

The search condition, as set forth in the PSR and adopted by the district court, provided:

“You shall submit your person, and any property, residence, vehicle, papers, computer, other electronic communication, data storage devices, cloud storage or media, and effects to a search by any United States Probation Officer, and if needed, with the assistance of any law enforcement. The search is to be conducted when there is reasonable suspicion concerning violation of a condition of supervision or unlawful conduct by the person being supervised. Failure to submit to a search may be grounds for revocation of release. You shall warn any other occupants that the premises may be subject to searches pursuant to this condition. Any search shall be conducted at a reasonable time and in a reasonable manner.”

Analysis

Precedents and Authorities Cited

United States v. Maiorana, No. 22-1115-CR, 2025 WL 2471027 (2d Cir. Aug. 28, 2025) (en banc): The cornerstone for the oral-pronouncement issue. Maiorana holds that a sentencing court “need not read the full text of every condition on the record.” Instead, it may expressly adopt or specifically incorporate by reference written conditions available to the defendant in the PSR, the Guidelines, or court-issued notices. In Gomez, the district court explicitly cross-referenced page 34 of the PSR, which contained the search condition verbatim. That sufficed under Maiorana.
United States v. Betts, 886 F.3d 198 (2d Cir. 2018): Establishes that a district court must make an individualized assessment in imposing special conditions and “state on the record the reason for imposing it.” However, an appellate court will affirm absent express reasons if the “district court's reasoning is self-evident in the record.” The Gomez panel leaned on this self-evidence doctrine given the dangerous facts and Gomez’s history.
United States v. Thompson, 143 F.4th 169 (2d Cir. 2025): Two key contributions invoked in Gomez. First, a court generally need not articulate separate reasons for every single special condition once it has explained the overall sentencing rationale. Second, search conditions need not be artificially limited to the precise modalities involved in prior misconduct; where the condition itself requires reasonable suspicion that evidence of a violation will be found, the law does not demand tailoring to, for example, “home versus phone versus car.” Thompson undercuts Gomez’s overbreadth argument about electronic searches.
United States v. Smith, 949 F.3d 60 (2d Cir. 2020): Sets out plain-error review when a defendant fails to object to a condition at sentencing. The court applied plain-error review to Gomez’s procedural challenge because he did not object below.
United States v. Yilmaz, 910 F.3d 686 (2d Cir. 2018): Reaffirms that procedural and substantive reasonableness of sentences are reviewed for abuse of discretion. The standard framed the appellate lens for both issues in Gomez.
United States v. Mumuni, 946 F.3d 97 (2d Cir. 2019): Provides the Second Circuit’s formulation that a sentence is substantively unreasonable when it is “manifestly unjust or when it shocks the conscience.” The Gomez panel used this benchmark to conclude the 120-month sentence, while severe, was not shocking.
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc): Emphasizes deference to district courts’ sentencing judgments under the “totality of the circumstances,” mindful of trial courts’ institutional advantages. Gomez reflects classic Cavera deference, particularly for the court’s assessment that the Guidelines inadequately captured the danger posed.
United States v. Pope, 554 F.3d 240 (2d Cir. 2009): Clarifies that a district court may rely heavily on one § 3553(a) factor if justified; unreasonableness arises from unjustified reliance, not mere emphasis. In Gomez, the district court’s focus on dangerousness and public protection was adequately reasoned.

Legal Reasoning

I. Oral Pronouncement of the Search Condition (Rule 43(a))

Gomez argued the court erred by not reciting the entire search condition aloud. The panel rejected this under Maiorana: the district court expressly adopted the PSR’s special conditions, which Gomez had read and discussed with counsel. That express incorporation at the sentencing hearing satisfied Rule 43(a)’s requirement that the sentence (including its conditions) be pronounced in the defendant’s presence. The panel’s straightforward application of Maiorana signals that defendants can no longer secure vacatur of conditions simply because the district court did not read them verbatim, so long as the court clearly incorporates written conditions available to the defendant.

II. Procedural Reasonableness of the Search Condition

Procedural reasonableness focuses on whether the district court made an individualized assessment and adequately explained the special condition. Because Gomez did not object at sentencing, the panel reviewed for plain error and found none. The court emphasized:

Gomez’s four prior firearms convictions and a history of violent gun-related conduct (pistol-whipping, discharging a firearm, armed robberies).
The extraordinary seriousness of the instant offense: while out on a day pass from a halfway house, he quickly secured a loaded gun and fired toward officers on a crowded street in broad daylight near a family with small children.
Institutional misconduct: possession of a dangerous weapon while serving his prior federal sentence and multiple attempts to bring drugs (or apparent drugs) into jail.
Use of a cell phone to lie to the halfway house while hiding from police—linking electronic devices to supervision concerns.

Under Betts, even if a district court does not recite a stand-alone justification for each condition, an appellate court may affirm where the rationale is “self-evident” in the record. Moreover, per Thompson, a court “generally need not articulate separate reasons for every single special condition” if it has already explained its broader sentencing reasons. Both principles supported affirmance here.

As to overbreadth, Gomez objected to the condition’s inclusion of “computer[s], other electronic communication[s], data storage devices, [and] cloud storage.” The panel held that the condition was properly bounded by its reasonable-suspicion requirement and, under Thompson, need not be narrowed to the exact modalities implicated by prior misconduct. Even if such tailoring were required, Gomez’s use of a phone to manipulate supervision during flight provided a direct electronics nexus.

III. Substantive Reasonableness of the 120-Month Sentence

The advisory Guidelines range was 46–57 months. The district court varied upward to 120 months, explaining that the Guidelines did not adequately capture the seriousness of the conduct—this was not merely possession of ammunition; it involved firing a shot toward officers in a crowded public space while the defendant was technically in federal custody. The district court further emphasized:

Gomez’s extensive record: this was his seventh conviction overall, second federal conviction, and fourth firearm offense; an escalating pattern of violence and disregard for the law.
Repeated parole and prison disciplinary violations.
The need to protect the public and promote respect for the law, balanced against the mitigating facts (including that Gomez did not intend to hit anyone and the difficult conditions of confinement during the COVID-19 pandemic).

Applying the deferential abuse-of-discretion standard, and the “manifestly unjust or shocks the conscience” metric from Mumuni, the panel held the sentence was within the permissible range of outcomes. Under Cavera, district courts can find that the Guidelines underrepresent offense seriousness and vary accordingly, particularly where real conduct (here, firing a shot in a public place while evading police) vastly exceeds the offense label (ammunition possession). Pope supported the district court’s latitude to place substantial weight on public protection and dangerousness, given its thorough explanation.

Impact and Significance

Although non-precedential, Gomez offers concrete lessons for the bench and bar in the Second Circuit post-Maiorana:

Pronouncement of Supervised-Release Conditions: Express incorporation by reference of written conditions (e.g., PSR) will satisfy Rule 43(a). Defense counsel who wish to preserve challenges should object at sentencing if they believe the court’s incorporation is unclear or if particular conditions require further explanation or tailoring.
Justifying Search Conditions: Where the record makes supervision risks “self-evident”—especially repeated firearm offenses and dangerous conduct—broad, electronics-inclusive search conditions tethered to a reasonable-suspicion standard are likely to be sustained. The inclusion of electronic devices and cloud storage is not inherently overbroad in the Second Circuit when the condition requires reasonable suspicion that evidence of a violation will be found.
Plain Error is a High Bar: Failure to object at sentencing substantially narrows appellate relief. Gomez underscores the importance of contemporaneous objections to preserve procedural challenges to conditions.
Upward Variances for Dangerous Real-World Conduct: District courts have wide latitude to conclude that an offense-of-conviction label (e.g., ammunition possession) understates the danger posed where the conduct involves actual use of a gun in public. Severe upward variances may be affirmed where the conduct risks grave harm and the defendant has a serious, escalating record.
Practical Drafting: Probation offices and district judges can confidently rely on PSR-listed conditions when orally adopting them, provided defendants had access to the PSR and the court clearly identifies the conditions adopted. Clarity at the sentencing colloquy remains best practice.

Complex Concepts Simplified

Summary Order: A non-precedential appellate decision that may be cited (with the “summary order” notation) but does not bind future panels. It can be persuasive.
Rule 43(a) (Presence at Sentencing): Requires the defendant’s presence when the sentence is pronounced. Under Maiorana, a court may comply without reading each condition verbatim by expressly adopting written conditions provided to the defendant, such as in the PSR.
Special Conditions of Supervised Release: Tailored restrictions or requirements imposed to facilitate supervision, protect the public, and reduce recidivism. Courts must make an individualized assessment and state reasons, but reasons can be discerned from the record if self-evident.
Reasonable-Suspicion Search Condition: Allows searches of a supervisee’s person or property when probation officers have specific and articulable facts suggesting a violation or unlawful conduct. It is less intrusive than suspicionless search conditions and is more likely to be upheld against Fourth Amendment challenges.
Procedural vs. Substantive Reasonableness: Procedural reasonableness asks whether the court followed the proper steps (correct Guidelines calculation, consideration of § 3553(a), explanation of the sentence, reasons for special conditions). Substantive reasonableness asks whether the sentence is within the range of permissible outcomes given the totality of the circumstances.
Plain Error Review: When a party fails to object below, the appellate court reviews for plain error, a demanding standard requiring an obvious error that affected substantial rights and seriously impugned the fairness or integrity of the proceedings. Finding no error (plain or otherwise) ends the inquiry.
Upward Variance (vs. Departure): A variance is a sentence outside the Guidelines range based on the statutory § 3553(a) factors. A departure is a Guidelines-based adjustment. Gomez involved an upward variance justified by offense seriousness and criminal history.
§ 3553(a) Factors: Statutory considerations that guide sentencing, including the nature of the offense, the defendant’s history and characteristics, deterrence, protection of the public, respect for the law, and the need to avoid unwarranted disparities.
Residential Reentry Center (Halfway House): A facility where individuals serve the final portion of a custodial sentence with limited freedom; violating conditions while at an RRC can aggravate sentencing assessments.

Additional Observations

Why the Guidelines may understate seriousness here: The ammunition-possession guideline typically focuses on possession characteristics and criminal history. When the real-world conduct involves discharging a firearm at police in a crowded setting, a district court can reasonably conclude the range does not reflect the actual danger posed, warranting a variance.
Electronics and Supervision: Modern supervision increasingly implicates digital devices. The court’s reliance on both general principles (Thompson) and case-specific facts (Gomez’s use of a phone to subvert supervision) reflects a pragmatic approach: tailor intrusiveness with a reasonable-suspicion limiter, not by categorically excluding digital media.
Best Practices for Counsel: Defense counsel should (a) request tailored explanations for any intrusive condition; (b) propose narrowing language (e.g., date ranges, device categories) if warranted; and (c) object contemporaneously to preserve appellate review beyond plain error.

Conclusion

United States v. Gomez reinforces two important currents in Second Circuit sentencing practice. First, following Maiorana, district courts may satisfy Rule 43(a) by expressly adopting or incorporating by reference written supervised-release conditions made available to the defendant—reading every condition aloud is not required. Second, electronics-inclusive search conditions anchored by a reasonable-suspicion standard remain viable where the record shows meaningful supervision risks, and appellate courts will treat the absence of a granular, condition-by-condition explanation as non-fatal when the rationale is self-evident in the overall sentencing record.

On substantive reasonableness, Gomez confirms that large upward variances may be affirmed where the offense-of-conviction label obscures the true danger of the conduct and the defendant’s record demonstrates escalating violence and noncompliance. The panel’s careful application of Cavera, Mumuni, and Pope underscores the deference afforded to district courts that transparently weigh the § 3553(a) factors and articulate why an above-Guidelines sentence is necessary but not greater than necessary.

Although not precedential, Gomez is a clear roadmap: (1) for courts, how to pronounce and justify special conditions post-Maiorana; (2) for probation, how to frame reasonable-suspicion search conditions that include digital media; and (3) for counsel, how to preserve and litigate objections in a landscape that affords broad deference to sentencing judges who thoroughly explain their reasoning.